Sept. 4, 2009 – “Hit and run” or “run and hit” vehicle accidents will both trigger uninsured motorist coverage, the Wisconsin Court of Appeals held on Sept. 1.
In Tomson v. Am. Family Mut. Ins. Co., 2008AP2744, the appellate court reversed the lower court, which read Wis. Stat. § 632.32 (4) to require an unidentified motorist to have hit the insured driver and then flee before the statute mandates coverage.
Although this case presents a fact pattern of first impression, the court of appeals said Theis v. Midwest Security Ins. Co., 2000 WI 15, controlled the outcome.
Truck part in road
Michael Tomson’s truck struck a 400-pound dual-wheel assembly that had apparently come off of another, unidentified semi-trailer, injuring Tomson.
Tomson had been driving in the northbound lane of Interstate 95 in Indiana. Tomson theorized that another truck driver, Reginald Gaskins, struck the abandoned wheel assembly while driving in the southbound lane, sending it into Tomson’s path.
Accepting this scenario, the circuit court ruled that Tomson’s uninsured motorist policy from American Family Mutual Insurance did not cover his losses. Both the policy and § 632.32 (4)(a)2.b predicated coverage on contact with a “hit-and-run vehicle.” In this case, the circuit court reasoned that the unidentified truck driver left the wheel assembly in the road and “ran” from the area before a “hit” occurred, failing to satisfy the sequence implied in “hit-and-run.”
The circuit court also found there was no coverage because the vehicle part was not moving before Gaskins hit it. The wheel assembly did not hit Gaskins on its own momentum and so there was not an unidentified motor vehicle that did the hitting and running, the court concluded.
Similarity to Theis
In a majority opinion by Judge Ralph Fine, the court of appeals narrowed its inquiry to whether § 632.32 (4)(a)2.b requires coverage. Citing Theis, the court said that if this statute mandates coverage, it did not need to examine the insurance policy.
This case bears a strong resemblance to the facts of Theis, the court of appeals noted. In Theis, an insured’s injuries were caused by a discarded vehicle part propelled into his path after an unidentified motorist struck it. The Theis court concluded that § 632.32 (4) required that an auto policy’s uninsured motorist clause extend coverage under those circumstances.
“The question we face is whether § 632.32 (4) similarly requires coverage when a detached piece of an unidentified motor vehicle is propelled into the insured’s motor vehicle by an identified motor vehicle,” the court of appeals stated.
Guided by the statute’s purpose
Under Theis, § 632.32 (4)(a)2.b, requires coverage if (1) an unidentified motor vehicle (2) “hits” the insured’s vehicle and (3) the unidentified motor vehicle ran from the scene.
As it applied the factors to this case, the court of appeals noted that no one knew where the stray vehicle part in Theis had come from. “The object either came off the passing semi-tractor or came off yet another unidentified motor vehicle and was propelled into the plaintiff’s vehicle by the passing semi-tractor,” the court wrote, quoting Theis.
Accordingly, the court of appeals found there had been a “hit” in Tomson’s case within the meaning of Theis because “there was physical contact here by something that came from an unidentified truck.”
The court of appeals observed that the Theis court found sufficient the physical contact between the insured vehicle and a piece of – rather than the entirety of – the unidentified vehicle. The Theis court explained that this standard furthered the statute’s “primary purpose” of compensating the victim of an uninsured motorist’s negligence to the same extent as if the tortfeasor had been insured.
Further drawing from the uncertainty of the part’s origin in Theis, the court of appeals concluded that the wheel assembly did not have to be moving when Gaskins struck it for coverage to exist. Because the part in Theis could have been from an earlier vehicle, it may have been at rest before a truck propelled it into the path of the insured driver.
Sequence not important
“Significantly, and also contrary to the reading of the statute by the circuit court here, there need not be first a ‘hit’ and then a ‘run’; under one of the two possible scenarios in Theis, the truck that left the [vehicle part] in the road ‘ran’ before there was any hit (the propelling of the [part] into Theis’ truck by the passing unidentified truck) – all that is required is that there be both a ‘hit’ and a ‘run’ (namely, a hit resulting from something done by the unidentified vehicle) in any sequence,” the court of appeals wrote.
The court of appeals continued to find that the third element for mandatory coverage was satisfied because, as in one of the scenarios contemplated by the Theis court, the truck that dropped the vehicle part is unidentified.
Alex De Grand is the legal writer for the State Bar of Wisconsin.