Su v. Kemper Insurance Companies/American Motorists Insurance
431 A.2d 416
R.I.
1981
Check Treatment

*1 assignments make property passed. Thus, in divorce we find that the Family proceedings. (1969 See G.L.1956 Reenact- Court did have the authority to establish a ment) 15-5-16.4, through 15-5-16.1 §§ lien a party for the P.L.1979, 279, enacted ch. 2. securing performance § of an award of defendant’s reliance on Britt misplaced. is alimony or support. child questioning authority of the trial appeals The defendant’s denied, justice to establish a lien in these circum judgments appealed affirmed, from are and stances, claiming defendant is the cases are remitted to the Family Court Family jurisdiction Court does not have to for further proceedings consistent with this power. However, exercise such opinion. in such a

case when the jurisdiction raised, issue of

we (1969 refer Reenactment) G.L.1956 SHEA, J., did participate. not 8-10-3.2 Christensen, § See Christensen v.

R.I., 900, 901 397 A.2d Britt, Britt v.

R.I., 383 A.2d at 594. In construing this

statute, we have determined that the Fami ly power Court does have “the to take

necessary steps jurisdic in aid of its divorce

tion to the end that the wife and children

might appropriate be awarded amounts for PIN PIN H. SU alimony support and that the estate of the husband could be per secured for the any

formance of Rogers such award.” v. KEMPER INSURANCE COMPANIES/ 263, Rogers, 269, 140, R.I. 201 A.2d 144 AMERICAN MOTORISTS INSURANCE (1964). COMPANY. Additionally, we note that G.L.1956 80-263-Appeal. No. Reenactment) through 15-5-16.1 §§ 15-5- Supreme Court of Rhode Island. 16.4, specifically grants the Family Court the authority in a divorce proceeding to 2, July 1981. assign or attach the estate of either party payment to secure support of child and ali-

mony, and we note further that the amend-

ment applicable was made petitions “to all

pending on the passage date of of this act

and to all petitions filed thereafter.” Pub- 279,

lic Laws ch. 4.§ case,

In the instant defendant con

tends that the 1979 amendments do not

apply because the absolute decree of divorce prior

was entered passage act, however,

amendment. The became ef May 7, 1979,

fective on whereas the abso

lute divorce decree was not entered until

July Therefore, 1979. peti the divorce pending

tion was at the time the act was (1969 Reenactment) board; allowance, 2. General Laws 1956 all motions for 8- bed and § * * 10-3, P.L.1980, alimony, support custody children, amended ch. provides part: arising petitions and other matters out of personal proper- motions relative to real and hereby family “There is established a court * * * ty in aid [Emphasis thereof petitions to hear *.” and determine all added.] marriage divorce from the bond of and from

417 liability insur- coverage ist of an automobile The issued to the policy ance contract. was concededly plaintiff of the husband agreed its The covers her within benefits. parties of facts submitted statement following. discloses the 27, 1978, was in- plaintiff December On automobile accident in which volved in an personal injuries. While she sustained plaintiff operating was motor vehicle on a in Avenue in East Providence Pawtucket care, the exercise of due a vehicle entered travel, causing her to take eva- her lane of ultimate- sive action to avoid collision and telephone operator ly pole. to strike a vehicle was and remains uni- of the other facts, agreed these the trial dentified. On justice judgment hold- declaratory issued a the absence ing that plaintiff’s vehicle and the unidenti- between recovery vehicle precluded fied motorist’s conse- policy. under the terms As a policy was quence, arbitration under the enjoined. We reverse. insur- policy

Under the terms an uninsured vehicle was ance motor defined as follows: “ ‘ means a land Uninsured motor vehicle’ any type: vehicle or

motor trailer u [*] [*] [*] vehicle “3. Which is hit and run or cannot be operator whose owner identified and which hits: member; any family a. You or >> * * * policy re- specific terms of the Resmini, Fornaro, Angelí, Colagiovanni & insured quire physical contact between the Resmini, Providence, plaintiff. J. Ronald for vehi- person or vehicle the unidentified inju- coverage cle order to establish for DeMarco, Reynolds & Ral- Boyer, John G. was to the policy pursuant ries. This issued lis, Providence, for defendant. Reenactment) 1956 provisions of G.L. 27-7-2.1, part reads pertinent which OPINION follows: WEISBERGER, * * * Justice. “No be delivered shall * comes appeal This case before us on delivery this state issued for Superior rendered judgment provided therein unless re- complaint declaratory to a insured pursuant persons (plaintiff) legally lief filed Pin Pin H. who are entitled Su thereunder Kemper Compa- opera- Insurance from owners recover and hit- Compa- Insurance of uninsured motor vehicles nies/American Motorists tors proper- respect motor vehicles because of ny (Kemper) in to uninsured-motor- and-run damage, ty bodily injury, sickness or dis- Haw. P.2d 304 Halseth ease, including death, resulting therefrom v. State Farm Mutual Automobile Insur [*] [*] [*] ance Co., 268 N.W.2d 730 (Minn.1978); Stuyvesant Soule v. Insurance It should be noted N.H. that the (1976); Biggs require statute does not there 364 A.2d 883 physi be State *3 cal contact between the vehicle of an Farm Co., unin Automobile Mutual Insurance sured motorist and the vehicle of the in (Okl.1977); 569 P.2d 430 Hartford Accident However, sured. Kemper contends that in Novak, Indemnity and Co. v. 83 Wash.2d herent within the term “hit and run” is the 576, (1974). 520 P.2d 1368 requirement of physical contact. Without In one of the earlier that rejected cases a question, number have of courts so held.1 the physical-contact requirement, Justice may The states be into divided three groups Adkins Supreme of Florida of coverage: (1) terms statutory in some observed: physical states contact is specifically re argument “The policy require- that the statutes;2 quired by (2) group a second of physical ment of contact is reasonable is reject states have statutes that contact aas only fallacious. The for reason such a requirement;3 (3) group and a third of requirement prove that the accident provide protection states in their statutes actually did occur as may say a claimant for the insured hit-and-run drivers it question did. This is a of fact to be require but do not specifically or forbid jury, determined the the physical prece judge actual contact as a condition if dent to or injury. jury loss It is demand for trial is made. not If the this category litigation third in which injured has party can sustain the burden of been most intense which great and in the proof occur, an that accident did he split authority may of found. be See Wid recover, regardless should be entitled to iss, A Guide Uninsured Motorist Cover of actuality the of physical contact. age Supp.). 2.41 & 1980 § recent twenty they witnesses will swear saw the increasing an number courts whose happen, testimony accident their should are statutes similar in terms to that of worthless, not be deemed as would be rejected Rhode Island have the physical- under the decision here review.” requirement and have declared con Progressive Brown v. Mutual Insurance contrary tractual clauses to the to be void Co., 249 at 430. So.2d against public policy. Montoya v. Dairy The Supreme Washington, Court of Co., F.Supp. (D.N. land Insurance 394 1337 commenting upon the argument the M.1975); State Farm Fire and Casualty Co. term “hit run” requires hitting and Lambert, 645, v. 291 Ala. 285 So.2d 917 sort, contact of some noted: (1973); Farmers Exchange Insurance v. disagree “We with McDermott, 305, this contention and Colo.App. 34 527 P.2d 918 reasoning the (1974); cases so Farm Mutual Automobile [which State In Abramowicz, phrase The surance Co. v. 386 ‘hit-and-run’ cannot be A.2d 670 hold]. isolation; (Del.1978); Progressive Brown considered it must be v. Mutual con- Co., (Fla.1971); totality Insurance 249 So.2d 429 sidered in context with De Hawaii, Ltd., Mello v. First Insurance purpose give Co. To enactment. 1.See, g., See, g., United e. States v. Commercial Union 11580.2(b)(1) (West e. 2. Cal.Ins.Code § Group, F.Supp. 1972); 56-407.1(b)(2) Ins. (S.D.N.Y.1969); (1977); 294 768 Ga.Code Ann. § Co., v. (1972); Balestrieri Hartford Accident & Indem. Miss.Code Ann. § 83-11-103 N.Y. 160, (McKinney 1966); (1975); Ins.Law § Rosnick v. 112 Ariz. 540 617 S.C.Code P.2d 126 56-9-850(2) (1976). 416, § Aetna & Sur. Cas. 172 Conn. 374 A.2d Group (1977); Finch v. Central Nat’I Ins. 1076 See, g., Omaha, (1953); e. 3. Or.Rev.Stat. 743.792 see 59 Ill.2d 319 N.E.2d 468 also Pasterchick v. Co. of Insurance North Employees Goldschlag Co. Government Ins. America, N.J.Super. er, 150 374 A.2d 1243 App.Div.2d (1974). 355 N.Y.S.2d 9 (App.Div.1977) (interpreting N.J.Stat.Ann. (West 1970)). § 17:28-1.1 Hawaii, Ltd., 55 Haw. ance Co. of its literal term ‘hit-and-run-vehicle’ (1974), meaning suggested by P.2d [insurer] pub- with the broad would be inconsistent claim can with a fraudulent “A claimant * * * of grounds lic same, damag- necessary, by if bolster affording protection public to the apparent proof to leave ing his own car compensation for inability to recover contact’ with requisite ‘physical by the users injuries and caused vehicle.’ non-existing ‘unidentified Injuries sustained as a highway. impact’ requirement ‘physical contractual of the actions of an unidentified result broadly, but also only sweeps too thus not the scene of an driver who flees from accomplish only enough, to its broadly not as real accident without scratch statutorily permissible justifiable as those caused an uniden- and severe *4 Id. of frauds.” purpose, prevention the a car who runs from the tified driver of P.2d at 310. at in- physical where contact is accident in Aldcroft v. ago we stated Some Moreover, the use of the term volved. Casualty 106 R.I. Fidelity & state, well as in ‘hit-and-run’ in this of enact- (1969), that the A.2d 408 jurisdictions, synonymous most other uninsured-motorist-coverage statute causing ing in an accident the with a car involved from the where the driver flees to the insured was to afford requirement physical of con- scene. The resulting inju- from against “economic loss provide meaning tact is not to to the term negligent the by ries sustained reason of ‘hit-and-run,’ pur- but rather is for the vehicles or operation of uninsured motor preventing possible filing of pose of the 318, 259 hit-and-run motor vehicles.” Id. at claims *.” Hartford Acci- fraudulent is the same broad statu- A.2d at 413. This Novak, v. Indemnity dent and Co. by courts which tory purpose ascertained Wash.2d at 520 P.2d at 1373-74. physical-contact require- rejected have the persuaded by reasoning the We See, Progressive v. Mu- g., ment. e. Brown requirement cases that have voided the of Co., supra; Hartford Acci- tual Insurance to physical precedent contact as condition Novak, supra. Indemnity dent and Co. policy coverage in unidentified-motorist light in the of this one views the situation cases. wholly inappro- seems statutory purpose, it company to priate the “hit to allow an insurance interpreting

In run,” believe, lack of Supreme ground we as did the the sole of deny on Washington, of that the term is the claimant is able physical contact when colloquial expression merely a shorthand the preponderance of prove by a fair who designed that is to describe a motorist injuries resulted his or her evidence that caused, by negligence has contributed his mo- negligence the of an unidentified to, an and flees the scene without accident of recognize possibility the We torist. being is no inherent identified. there the ele- but believe that fraudulent claims an es physical connotation that contact is signifi- not of contact is physical ment of As conse part sential of its definition. and re- the identification cant relevance in the support if is to be quence, there presence of such claims. sistance contact, it must be requirement physical witnesses, the credibili- impartial absence of derived, statutory language, the not from ability of testimony, the ty of the claimant’s need to limit or avoid perceived but from a prevarication expose the cross-examiner claims. fraudulent the adver- efficient tools of are all far more in this context. expose fraud sary process to not believe that the talis- We do opinion that we are of the Consequently, contact physical value accorded to manic contact is physical policy requirement the inhibit the fraudulent significantly will in the the inherent void by Supreme As was noted claimant. statute. First Insur uninsured-motorist in DeMello v. Court of Hawaii light disposition issue, of our of this It is interesting to note that when the is unnecessary to consider other claims Legislature approve the uninsured-motorist by plaintiff raised respect to waiver of statute in approval came from the issue physical by proceeding both branches on the sixtieth and day last to arbitration. January 1962 session. At that mo- ment, the Boston Red baseball Sox team stated, For the reasons appeal just begun had one another of the team’s plaintiff is judgment sustained. The many pursuits fruitless of the American Superior papers Court is vacated and the League championship. All of the Red Sox may the case Superior be remanded to the players every legislator about were Court with direction judgment to enter a highly aware at that time of year consistent with opinion. this before one can have a successful execution SHEA, J., did not participate. play baseball, of the hit-and-run the bat- ter must hit the ball. KELLEHER, Justice, dissenting. pedestrian A who is by struck an uniden- I realize that diversity judi- there is a tified motor vehicle and then has the mis- thought cial regarding the extent of cover- seeing fortune of the automobile leave the age afforded provisions hit-and-run scene will anyone tell who inquires about of the various statutes, uninsured-motorist his or her welfare that he or she but the issue to be resolved this court is *5 has been involved in a hit-and-run accident. Legislature, what our the General As- sembly, did intend when spring in the In The Heritage American Dictionary of 1962 it enacted P.L. ch. English Language ed.), phrase

thereby opportunity afforded an for the adjective “hit-and-run” is classified as an purchaser of liability automobile insurance which describes “the driver of a motor vehi- compensation obtain losses caused cle who drives on striking pedestrian after specific tortfeasors, group of the unin- vehicle”; or, or another when used in a sured and the hit-and-run motorist. It is sense, baseball describes play “a in which a my belief legislators that when the in 1962 man on pitch, base runs with with the opted protection against the hit-and-run attempts batter to hit the ball.” It is driver, they imagined never that some nine- my colleagues obvious that care little for teen judicial would, later a body with heritage our American publication or the a bit of legerdemain, change semantic that bears that title. term “hit and run” into “miss and run.” associates, With all due my deference to Houdini certainly appreciate would such Assembly the General exactly knew what it “sleight eye,” legislators, but the Class of doing was when it first afforded possessed who are still of an ability to the uninsured and hit-and-run mo- recall, will, I suggest, shake their heads Legislature torist. If the ever intended to upon learning disbelief they that when said protection against include the “miss-and- “hit” they really meant “miss.” motorist, run” perfectly capable was This repeatedly court has said that when so, saying has, but it majority did not. The of a statute is free from ambi- construction, under guise of a liberal guity clear, expresses sensible mean- that, clear, amended a statute because of its ing, there is no room for statutory construc- precise prose, no needs such amendment. tion, and give the court must the words plain their meaning. and obvious “Hit and common,

run” are words everyday mean-

ing. The word “hit” is defined in Webster’s

Third Dictionary International as “1 a: a striking object

blow an aimed at —contrast- ed with miss b: an impact of one

thing against another: COLLISION.”