Girgis v. State Farm Mutual Automobile Insurance

Wright, J. Today we again confront a situation involving an individual who suffered personal injuries in an automobile accident, allegedly at the hands of an unidentified driver who left the scene of the accident. See Travelers Indemn. Co. v. Reddick (1974), 37 Ohio St.2d 119, 66 O.O.2d 259, 308 N.E.2d 454; Yurista v. Nationwide Mut. Ins. Co. (1985), 18 Ohio St.3d 326, 18 OBR 370, 481 N.E.2d 584; State Auto. Mut. Ins. Co. v. Rowe (1986), 28 Ohio St.3d 143, 28 OBR 238, 502 N.E.2d 1008. In these cases we upheld the validity of insurance contracts that required physical contact as an absolute standard for recovery under the uninsured motorist coverage of the insurance policy. Invariably, this meant that the injured party could not recover. In Reddick, two automobiles collided after one of them swerved to avoid an accident with a third, unidentified vehicle. There were no witnesses to the incident other than the drivers of the two vehicles that collided. Reddick, 37 Ohio St.2d at 119, 66 O.O.2d at 259, 308 N.E.2d at 454-455. Yurista consisted of two companion cases. In the first, Robert- Yurista was injured when his motorcycle struck a railroad tie that was in the road. There were no witnesses to the accident, although a police investigation revealed that the railroad tie had been dragged into the road “ ‘by a car which made a too sharp right hand turn.’ ” The plaintiff in the other case, James Basford, was injured by a bottle thrown from an unidentified vehicle. There appears to have been at least one witness to this event. Yurista, 18 Ohio St.3d at 327-328, 18 OBR at 371-372, 481 N.E.2d at 585-586. In Rowe, Carolyn Rowe and Peter Stefanisn were injured when the vehicle in which they were passengers was struck by a car that had swerved to avoid a third, unidentified vehicle. Rowe, 28 Ohio St.3d at 143, 28 OBR at 238, 502 N.E.2d at 1008. The plaintiffs in each of these cases were injured as a proximate result of the alleged negligence of an unidentified person in an unidentified vehicle. Each [305] injured party filed a claim seeking recovery under the uninsured motorist coverage of their insurance policies. In each case, the claim was denied because there had been no physical contact between either the person or the vehicle of the injured party and the unidentified vehicle which allegedly caused the accident. Each of the ensuing actions reached this court, where we found the contract provision of the insurance policy requiring a physical contact as a prerequisite to recovery to be valid. The facts in the case before us require us to reexamine these cases, consider the views of our sister states, and review the public policy underlying the physical .contact requirement. The precise issue before us is whether an automobile insurance policy requiring actual physical contact between the unidentified vehicle and either the insured or the insured’s vehicle as an absolute prerequisite to recovery comports with public policy. For the reasons that follow, we find that the physical contact requirement is contrary to public policy. We are persuaded that some of the rationale underlying the physical contact requirement is unjustified and that this absolute standard for recovery should be abandoned. Instead, we hold that the test that ought to be applied in cases where an unidentified driver’s negligence causes injury is the corroborative evidence test, which allows the claim to go forward if there is independent third-party testimony that the negligence of an unidentified vehicle was a proximate cause of the accident. In taking this step, we join a number of our sister states that have adopted this or an even stricter rule.1 R.C. 3937.18, the statutory provision that requires insurance companies to offer uninsured motorist coverage, does not specifically address the issue before us.2 It stated, at the time pertinent herein: “(A) No automobile liability or motor vehicle liability policy of insurance * * * shall be delivered or issued for delivery in this state * * * unless both of the following are provided: [306] “(1) Uninsured motorist coverage, which * * * shall provide * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * *; “(2) Underinsured motorist coverage * * (141 Ohio Laws, Part I, 535.) It has been the practice of insurance companies to provide coverage for “hit and run” accidents, even though that coverage is not required by R.C. 3937.18. Such policy provisions have historically been restricted to “hit and run” accidents where a physical contact occurred between the person or vehicle of the insured and the “hit and run” vehicle. See Reddick, 37 Ohio St.2d 119, 66 O.O.2d 259, 308 N.E.2d 454; Yurista, 18 Ohio St.3d 326, 18 OBR 370, 481 N.E.2d 584; Rowe, 28 Ohio St.3d 143, 28 OBR 238, 502 N.E.2d 1008. Since R.C. 3937.18 neither requires nor prohibits insurance coverage for “hit and run” accidents, we have analyzed insurance policies providing “hit and run” coverage under the rules of contract law. Accordingly, we have and will enforce the terms of insurance contracts absent compelling public policy reasons to the contrary. As we stated in Reddick, “The purpose of the [physical contact] requirement is obvious — to provide an objective standard of corroboration of the existence of a ‘hit-and-run’ vehicle to prevent the filing of fraudulent claims.” 37 Ohio St.2d at 124, 66 O.O.2d at 262, 308 N.E.2d at 457. While objective standards have the advantage of being easy to apply, their application does not always do justice to injured claimants. Thus, because we remain committed to the underlying policy of preventing fraud, we adopt the corroborative evidence rule which prevents fraud and avoids the injustice of prohibiting legitimate claims solely because no physical contact occurred. Adherence to the physical contact requirement effectively deprives insured individuals of any recovery under uninsured motorist coverage even when independent third-party testimony is available. It strikes us that this is precisely the sort of situation against which uninsured motorist coverage was designed to protect. See Reddick, 37 Ohio St.2d at 123, 66 O.O.2d at 261-262, 308 N.E.2d at 457; Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 165, 51 O.O.2d 229, 231, 258 N.E.2d 429, 432; Watson v. Grange Mut. Cas. Co. (1988), 40 Ohio St.3d 195, 196-197, 532 N.E.2d 758, 759. We also note that R.C. 3937.18 will be “construed liberally in order to effectuate the legislative purpose that coverage be provided to persons who are injured through the acts of uninsured motorists.” Reddick, 37 Ohio St.2d at 123, 66 O.O.2d at 262, 308 N.E.2d at 457, citing Curran v. State Auto. Mut. Ins. Co. (1971), 25 Ohio St.2d 33, 54 O.O.2d 166, 266 N.E.2d 566. Thus, to the extent that admissible corroborative evidence was available, we modify Reddick, Yurista and Rowe, and find that R.C. 3937.18 and public policy preclude contract provisions in insurance policies from requiring physical contact [307] as an absolute prerequisite to recovery under the uninsured motorist coverage provision. We believe that public policy considerations should and do require the substitution of the corroborative evidence test for the physical contact requirement. This will ameliorate the harsh effect of an irrebuttable presumption and allow an insured to prove through independent third-party testimony that an unidentified vehicle was a proximate cause of the accident for which the insured seeks recovery. We do not take lightly the argument that this decision will lead to an increase in the filing of claims. However, the corroborative evidence test we propound requires independent third-party testimony specifically to protect insurance companies from fraud. We consider the danger of possible fraud acceptable compared with the current situation where insureds with legitimate claims are prevented, as a matter of law, from recovering. Further, we are confident that the jury system will be able to distinguish between legitimate cases and fraudulent ones, as they do in many other matters. We reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Douglas and Resnick, JJ., concur. Pfeifer, J., concurs separately. Moyer, C.J., and Cook, J., concur in judgment. F.E. Sweeney, J., concurs in part and dissents in part. Footnotes [1] Surrey v. Lumbermens Mut Cas. Co. (1981), 384 Mass. 171, 424 N.E.2d 234; State Farm Fire & Cas. Co. v. Lambert (1973), 291 Ala. 645, 285 So.2d 917; Farmers Ins. Exchange v. McDermott (1974), 34 Colo.App. 305, 527 P.2d 918; State Farm Mut. Auto. Ins. Co. v. Abramowicz (Del.1978), 386 A.2d 670; Brown v. Progressive Mut. Ins. Co. (Fla.1971), 249 So.2d 429; DeMello v. First Ins. Co. of Hawaii (1974), 55 Haw. 519, 523 P.2d 304; Simpson v. Farmers Ins. Co. (1979), 225 Kan. 508, 592 P.2d 445; Halseth v. State Farm Mut. Auto. Ins. Co. (Minn.1978), 268 N.W.2d 730; Commercial Union Assur. Co. v. Kaplan (1977), 152 N.J.Super. 273, 377 A.2d 957; Montoya v. Dairyland Ins. Co. (D.N.M.1975), 394 F.Supp. 1337; Biggs v. State Farm Mut. Ins. Co. (Okla.1977), 569 P.2d 430; Farmers Ins. Exchange v. Colton (1972), 264 Ore. 210, 504 P.2d 1041; Webb v. United Services Auto. Assn. (1974), 227 Pa.Super. 508, 323 A.2d 737; Clark v. Regent Ins. Co. (S.D.1978), 270 N.W.2d 26; Doe v. Brown (1977), 203 Va. 508, 125 S.E.2d 159; Maurer v. Grange Ins. Assn. (1977), 18 Wash.App. 197, 567 P.2d 253. [2] It should be noted that the statute does not require consumers to purchase uninsured motorist coverage.