Stamper v. Allstate Insurance Co. , 115 Idaho 237 ( 1988 )

SHEPARD, Chief Justice.

This is an appeal from a summary judgment issued in favor of defendant-insurer in an action seeking to recover under the provisions of the uninsured motorist section of an automobile insurance policy. The policy provisions providing uninsured motorist coverage require that when an unidentified motorist is involved, that there be physical contact by the unidentified motorist with the insured vehicle. Allstate Insurance Company’s uninsured motorist coverage provides in pertinent part:

Injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured auto.

An uninsured auto is:

4. a hit and run motor vehicle which causes bodily injury to an insured person by physical contact with the insured person or with a vehicle occupied by that person. The identity of the operator and the owner of the vehicle must be unknown, (emphasis added).

R., pp. 38-39.

Since the facts are virtually identical, the question presented is whether Hammon v. Farmers Insurance, 109 Idaho 286, 707 P.2d 397 (1985), should be overruled. We decline to do so, and affirm the decision of the district court.

In the instant case appellant was a passenger in a vehicle which was allegedly forced off the road by another vehicle traveling in the wrong lane of traffic. The only alternative would have been a head-on collision. The vehicle in which appellant was a passenger was covered by a policy of insurance which provided uninsured motorist coverage issued by respondent. For the purposes of summary judgment the above facts must be viewed as correct. The vehicle and its driver have never been identified. The insurance policy issued by respondent provides that in the event of a hit-and-run accident, the identity of the operator and the owner of the hit-and-run vehicle may be unknown, but that there must be physical contact. Here, admittedly, there was no physical contact.

As above noted, the facts are virtually identical to Hammon. In Hammon:

... a red pickup truck with a camper-shell traveling in the opposite direction veered across the center of the roadway and forced them [the Hammons] off the road.... The identity of the red pickup, or its driver, was never discovered.... The insurance policy expressly limited uninsured motorist coverage to injury by vehicles known to be uninsured or by “hit-and-run vehicles” that had come into “physical contact” ... with the insured or with an automobile which the insured was occupying at the time of the accident.

There, as here, the insurance carrier was granted summary judgment. .

As noted in Hammon, our legislature has mandated that an insurer issuing a motor vehicle liability policy must offer uninsured motorist coverage. I.C. § 41-2502.

In Hammon as in the instant case, the respondent insurer issued uninsured motorist coverage, and provided in its policy definitions that such uninsured motorist coverage would be extended to “hit-and-run” circumstances, although the identity of the operator and the owner of the vehicle are unknown and hence in fact it cannot be determined whether an “uninsured motorist” was involved. Such “hit-and-run” coverage is, however, restricted by the policy terms to instances where there was physical contact between the vehicles involved.

The issue presented in the instant case is identical with the issue presented in Hammon: “Whether the ‘physical contact’ requirement in the ‘hit-and-run’ provision of the Hammon’s automobile liability insurance policy is in derogation of the Idaho uninsured motorist statute and is therefore void as against public policy?” As further stated in Hammon:

An “uninsured” vehicle is clearly not the same as an “unidentified” vehicle. The statute directs that coverage be made available for the protection of persons insured thereunder who are legally enti-tied to recover from owners or operators of uninsured motor vehicles. This language obviously contemplates that there is proof of the identity of the owner or operator of the vehicle; otherwise it could not be ascertained that the vehicle was uninsured.... Thus we conclude that hit-and-run coverage is neither mandated nor prohibited under the Idaho uninsured motorist statute.

Nevertheless, in both Hammon and in the instant case the insurer has extended its uninsured motorist coverage beyond that required by the statute, and has made it applicable in hit-and-run circumstances. However, that coverage beyond the statutory mandate is by the terms of the policy restricted to circumstances where there has been an actual physical contact.

The Court in Hammon, when considering the hit-and-run provisions in an automobile liability insurance policy, amply discussed the public policy question involved. Here it is sufficient to note only that as of the time of Hammon, 11 jurisdictions have upheld a physical contact requirement in hit-and-run circumstances. Further, the Court in Hammon noted that the insurance policy forms at issue there, and here, have been approved by the Idaho Director of Insurance, I.C. § 41-2502, and the Director’s construction and approval of such policies are entitled to substantial weight. In summary, we decline to overrule Ham-mon; Hammon is dispositive of the case at bar, and the summary judgment in favor of the respondent is affirmed.

Respondent was awarded attorney fees at the trial court, and has sought attorney fees on this appeal. “Attorney fees will be awarded only when this Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation.” NBC Leasing Company & Lease Northwest, Inc. v. R & T Farms, Inc., 114 Idaho 141, 754 P.2d 454 (Ct.App.1988); Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979). Given the previous decision of the Court of Appeals in Hammon, together with this Court’s closely divided decision in Hammon, we cannot view that the action of this appeal was brought frivolously, unreasonably, or without foundation. We reverse the district court’s award of attorney fees. No attorney fees on appeal. Reversed; costs to respondent.

BAKES and JOHNSON, JJ., concur.