Conflicting Rulings Over Hit-And-Run Coverage
By Don R. Sampen, published, Chicago Daily Law Bulletin [June 3, 2015]
Two recent decisions — one from the 1st District Appellate Court and one from the 3rd District — reached inconsistent results regarding the availability of uninsured motorist coverage when a vehicle that triggered a collision, but made no contact with the insured vehicle, leaves the accident scene.
In the 3rd District case, Cincinnati Insurance Co. v. Pritchett, 2015 IL App (3d) 130809 (April 27, 2015), Cincinnati was represented by Hunt Law Group LLC. Parente & Norem P.C. represented the insured, Robert Pritchett.
Pritchett was driving a tractor-trailer when, he claimed, a car cut in front of him, causing him to swerve into a curb and flip his truck. The car in front of him never stopped. He made a claim for UM coverage with Cincinnati Insurance.
The policy provided coverage for injuries caused by hit-and-run vehicles, but for such coverage, it stated: “The vehicle must hit, or cause an object to hit, an insured, a covered auto or a vehicle an insured is occupying. If there is not physical contact with the hit-and-run vehicle, the facts of the accident must be proved.”
Relying on the “must hit” language in the policy, Cincinnati denied coverage and brought this declaratory action. After the trial court denied cross-motions for summary judgment, Cincinnati filed a motion to certify questions for interlocutory appellate review under Illinois Supreme Court Rule 308(a).
That motion was granted, and although the appellate court initially denied review, the Supreme Court directed the 3rd District to take the case. The two certified questions essentially went to the issue of whether the policy language was ambiguous concerning the need for physical contact with either the hit-and-run vehicle or with some object that such vehicle caused to hit the insured.
In an opinion by Justice William E. Holdridge, the court found that the policy language was ambiguous. Before reaching that decision, however, Holdridge addressed whether the Insurance Code, 215 ILCS 143a(1), requires insurers to limit coverage for hit-and-run accidents to situations involving direct or indirect physical contact.
As to that issue, Holdridge said that no such required limitation exists. He relied initially on Ferega v. State Farm Mutual Automobile Insurance Co., 58 Ill.2d 109 (1974), which, in his view, held only that the code does not bar insurers from including such a limitation in a policy.
He also cited a number of what he characterized as “older decisions” of the appellate court that held or implied that Section 143a(1) does require insurers to limit coverage to accidents involving physical contact. In Groshans v. Dairyland Insurance Co., 311 Ill.App.3d 876 (3d Dist. 2000), however, the 3rd District held that no physical-contact requirement exists. Holdridge took the Groshans decision as controlling for purposes of this appeal, inasmuch as it had not been invalidated by the legislature.
He then examined the language of the Cincinnati policy itself and compared the “must hit” language of the first sentence quoted above with the no “physical contact” language of the second sentence. Although acknowledging a construction that would make the two sentences consistent – when the “hit” is with an “object” and not the hit-and-run vehicle – he nevertheless found that the two sentences considered together created an ambiguity.
In the 1st District case, State Farm Mutual Automobile Insurance Co. v. Benedetto, 2015 IL App (1st) 141521 (May 6, 2015), State Farm was represented by Taylor, Miller LLC. The Law Offices of Kevin E. O’Reilly LLC represented the insured John Benedetto.
In this case, Benedetto, with his wife as a passenger, was driving a motorcycle when he swerved to avoid hitting a semitrailer, and the wind shear from the truck blew him off the road and into a ditch.
He sought UM coverage under a State Farm policy provision allowing coverage where the hit-and-run vehicle “strikes … the insured … or … the vehicle the insured is occupying and causes bodily injury to the insured.” Benedetto basically claimed that the policy allowed recovery for a “miss-and-run” accident where the wind shear “struck” his vehicle.
State Farm filed the declaratory action, and both sides moved for summary judgment on the issue of whether UM coverage was available. The trial court agreed with Benedetto that wind shear caused a sufficient physical contact and granted his motion. State Farm appealed.
In an opinion by Justice Terrence J. Lavin, the 1st District reversed. Similar to Holdridge in Pritchett, Lavin initially addressed whether physical contact was required under the Insurance Code to collect UM coverage. Unlike Holdridge, however, Lavin concluded that it was.
Lavin said the Supreme Court’s decision in Ferega “determined that physical contact was required under the code.” He then cited to some of the same “older decisions” noted by Holdridge, and while acknowledging “some confusion” in the case law, he said that they, too, required physical contact. He gave the 3rd District’s decision in Groshans a “but see” reference.
Lavin then turned to the question of whether wind shear constitutes the necessary physical, or even indirect, contact and concluded it does not.
In his view, the trial court’s decision to the contrary amounted to “an etymological and jurisprudential leap in logic” and found that the air generated by a passing vehicle “does not equate to indirect physical contact like a lug nut flying off a hit-and-run vehicle.”
The 1st District therefore reversed and remanded with instructions to enter summary judgment for State Farm.
A conflict exists between the 1st and 3rd Appellate Districts concerning whether physical contact with a hit-and-run vehicle, or some object (other than wind) put in motion by a hit-and-run vehicle, is necessary to trigger hit-and-run UM coverage in Illinois.