Motorists Mut. Ins. Co. v. Brandenburg

GORMAN, J. Plaintiff-appellant Motorists Mutual Insurance Company ("Motorists Mutual") appeals from the trial court's order which granted the motion for summary judgment of defendantsappellees, Billie and Carol Brandenburg, and overruled Motorists Mutual's cross-motion for summary judgment. The issue is whether the "hit-and-run" limitation under the uninsured-motorist provisions of Motorists Mutual's liability policy applies in a multiple-vehicle collision when an uninsured automobile has physical contact with an intermediate automobile, but not with the insured's automobile. We hold that the trial court correctly granted summary judgment in favor of the Brandenburgs. Motorists Mutual filed a complaint for declaratory judgment in the court of common pleas, seeking construction of the uninsured-motorist provisions in the policy of insurance it had issued to the Brandenburgs. It specifically requested a declaration of the policy's definition of an "uninsured motor vehicle," contending that a hit-and-run vehicle whose operator or owner cannot be identified must be a vehicle that actually "hits" the insured's vehicle. The parties agreed that no material issues of fact existed and submitted the case to the trial court on a written stipulation that an unidentified hit-and-run truck collided with an intermediate automobile and caused that vehicle to swerve and to collide with the Brandenburgs' automobile. The parties further stipulated that the Brandenburgs submitted a claim for personal injuries to Motorists Mutual under the uninsured-motorists provision of their own policy. Motorists Mutual concedes that "hit" as used in "hit-and-run" means "physical contact," see Deinlein v. State Farm Mut. Ins. Co. (March 27, 1989), Hamilton App. No. C-880228, unreported, but the insurer contends that the factual issue of "physical contact" should be resolved in its favor under the Ohio Supreme Court's decision in State Auto. Mut. Ins. Co. v. Rowe (1986), 28 Ohio St. 3d 143, 502 N.E.2d 1008, which, it argues, inferentially reversed our holding in Progressive Cas. Ins. Co. v. Mastin (1982), 4 Ohio App. 3d 86, 446 N.E.2d 817. Mastin involved interpretation of the term "physical contact," under a policy's "hit-and-run" coverage. We held that where an unidentified automobile negligently collided with a taxi cab, which in turn struck the insureds' automobile, the plain meaning of "physical contact" entitled the insureds to summary judgment since that interpretation more accurately comported with the commonly understood meaning of "hit-and-run" while still preserving the corroborative value of the contact requirement. We find no support for Motorists Mutual's assertions that despite the majority's silence in Rowe, it is implicit from the dissent that the term "physical contact" is distinguishable from proximate cause, and that the "corroborative evidence" test has been rejected as it applies to hit-and-run policy *34 limitations. We find that Rowe, which involved a non- contact collision, stands only for the proposition that when it is unambiguous, a "physical contact" limitation in a liability policy's hit-and-run clause violates neither R.C. 3937.18 nor public policy. Since the parties did not allege an ambiguity in the policy, we conclude that the trial court did not rewrite the insurance contract by entering summary judgment in favor of the Brandenburgs. See Drage v. Mantifel (1988), 49 Ohio App. 3d 63, _ N.E.2d _. Accordingly, we overrule Motorists Mutual's assignment of error and affirm the judgment of the trial court. Judgment affirmed. KLUSMEIER, J., Concurs. UTZ, P.J., Dissents.