State Farm Mutual Automobile Insurance v. Brudnock , 151 Ariz. 268 ( 1986 )

HOLOHAN, Chief Justice.

The plaintiff insurance company brought a declaratory judgment action to determine its responsibility on a claim submitted under an automobile insurance policy issued to the defendant Janet Brudnock. The parties submitted the case to the superior court on a stipulated set of facts and filed motions for summary judgment. The trial court granted judgment in favor of the insurance company, finding it had no liability under the policy for the claim. The Court of Appeals affirmed in a memorandum decision. State Farm v. Brudnock, 1 CA-CIV 7572, filed Dec. 6, 1984. The defendants sought review which we granted to reexamine our previous cases on the subject.

The essential facts presented in the stipulation are that on November 16, 1982, defendant Janet M. Brudnock had in force with plaintiff State Farm Insurance Company, automobile insurance policy #4037-553-03. The policy contains the following provisions entitling the insured to coverage for bodily injuries caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle:

Uninsured motor vehicle is defined as:

* * * * * *

(3) A “hit-and-run” land motor vehicle whose owner or driver remains unknown and which strikes: (a) the insured or (b) the vehicle the insured is occupying and causes bodily injury to the insured.

On November 16, 1982, Janet M. Brudnock was the owner/occupant of a motor vehicle operated by Steve Harrigan. At approximately 7:55 a.m., the defendants Brudnock and Harrigan were westbound on Baseline Road in the vicinity of Recker Road in the City of Phoenix. Baseline Road is a two lane road, one westbound and one eastbound. The defendants had been following a bronze Mazda RX7 for several miles prior to the accident. The Mazda RX7 had been traveling at a high rate of speed and dangerously passing vehicles along the way.

As the Mazda RX7 was attempting to pass another vehicle at approximately the fifth power pole west of Recker Road, an eastbound Chevrolet Corvette had to take evasive action to avoid a head-on collision with the Mazda.

The Corvette went off the roadway and onto the dirt shoulder abutting the south side of Baseline Road. When the driver of the Corvette attempted to regain control of the vehicle it slid across Baseline Road striking the driver’s side of the Brudnock vehicle.

Brudnoek’s vehicle rolled over once after impact with the Corvette and came to rest on all four wheels on the north side of Baseline Road west of Recker Road. The Corvette came to rest when it struck the fifth power pole west of Recker Road on the north side of Baseline Road.

Both Janet Brudnock and Steve Harrigan sustained injuries in the accident. The Mazda RX7 did not make physical contact with either the Brudnock vehicle or the Corvette. The driver of the Mazda did not stop to render aid to the defendants, nor did the driver return to the scene of the accident at any time during the investigation by the police so that driver and vehicle identification could be made. Further, all attempts to locate the Mazda and its driver have been futile.

The first issue presented is whether our decision in Balestrieri v. Hartford Accident & Indemnity Ins. Co., 112 Ariz. 160, 540 P.2d 126 (1975), should be overruled.

Appellants contend that A.R.S. § 20-259.01, our uninsured motorist statute, was intended not only to extend coverage against accidents caused by motorists who were identified as uninsured, but also by unknown motorists as well. See Anderson v. State Farm Mut. Ins. Co., 133 Ariz. 464, 468, 652 P.2d 537, 541 (Feldman, J. specially concurring). This court in Balestrieri rejected the concept that our uninsured motorist statute includes unknown motorists. 112 Ariz. at 163, 540 P.2d at 129.

The enactment of A.R.S. § 20-259.01 in 1965 “closed the gap” in the Financial Responsibility Act by protecting those negligently injured by financially irresponsible motorists. Kraft v. Allstate Insurance Company, 6 Ariz.App. 276, 278, 431 P.2d 917, 919 (1967). In Harsha v. Fidelity General Insurance Co., 11 Ariz.App. 438, 440, 465 P.2d 377, 379 (1970), our Court of Appeals stated that “ ‘uninsured’ means, literally, 'not insured.’ ” The court held that when our legislature enacted our uninsured motorist statute “it was concerned with the problem created by the negligent driver who had no insurance at all.” Id.

In 1975 we decided Balestrieri, supra. The Balestrieri vehicle struck a street light pole while avoiding a driver who was making a dangerous lane change. “There was no contact of any kind or nature between the Balestrieri vehicle and the unidentified vehicle.” 112 Ariz. at 160, 540 P.2d at 126. Balestrieri sought coverage under the uninsured motorist provision of his valid insurance contract for this “miss-and-run” situation. However, Balestrieri’s insurance contract contained a requirement of physical contact for coverage under the uninsured motorist provisions. We found the contractual restriction of the uninsured motorist coverage not in derogation of A.R.S. § 20-259.01 and not void as against public policy. Id. at 161, 540 P.2d at 127. We said, as had the Court of Appeals in Harsha, supra, that the legislature used the term “uninsured” in its common ordinary sense as one which does not have insurance, literally “not insured.” Id. at 162-63, 540 P.2d at 128-29. Phantom vehicles did not come under the uninsured motorist statute because the insurance status of the negligent party could not be determined. Id. at 162, 540 P.2d at 128. “Because the hit-and-run provision is neither required nor prohibited by the ... uninsured motorist statute, the physical contact requirement is a matter of contract between the insurer and the insured which [this court] will not disturb.” Id. at 163, 540 P.2d at 129, citing Lawrence v. Beneficial Fire & Casualty Insurance Co., 8 Ariz.App. 155, 444 P.2d 446 (1968). Therefore, to recover under the “hit-and-run” provision of his insurance contract Balestrieri had to have physical contact with the unidentified motorist.

Since our decision in Balestrieri in 1975 the legislature has twice, in 1981 and 1982, amended A.R.S. § 20-259.01. Despite the contention that our legislature intended the statute to include “unknown” motorist, see, Anderson, supra (Feldman, J. specially concurring), our legislature has not seen fit to redefine this court’s interpretation of the statute in Balestrieri. If we had incorrectly interpreted the legislative intent, the legislature surely would have changed the statute to include unknown motorists. In light of legislative acquiescence in our decision in Balestrieri, we decline to overrule it.

The second issue presented by appellants is whether the physical contact requirement of the insurance policy is satisfied when contact is made by the insured with the unidentified vehicle through an intermediate object.

In effect appellants argue that the collision between the Brudnock vehicle and the Corvette was causally linked to the unidentified driver of the Mazda, and, since the contact between the two vehicles was caused by the Mazda, the policy provision is satisfied. Appellants note that in Anderson, supra, we held that a hit-and-run vehicle which struck another vehicle propelling it into the plaintiff’s vehicle was “physical contact” within the meaning of the insurance policy hit-and-run provision. Do the facts in the case at issue come within the Anderson requirements?

In Anderson we referred to a number of the appellate cases which had considered the meaning of the “physical contact” provision in automobile insurance policies. 133 Ariz. 466-67, 652 P.2d 539-40. One common factor seemed to be present in the cases considered, and that factor was that the hit-and-run vehicle actually struck another object or vehicle which was forced to collide with the vehicle of the insured. Unlike the situations reviewed in Anderson, the unidentified vehicle in this case was a “miss and run” vehicle which did not come in physical contact with any object which came in contact with the insured’s vehicle. There was in fact no direct or even indirect contact by the unidentified vehicle with any of the other vehicles. Unlike Anderson, the facts of this case do not support a finding of physical contact with the unidentified vehicle.

The memorandum decision of the Court of Appeals is approved, and the judgment of the superior court is affirmed.

GORDON, V.C.J., and HAYS and CAMERON, JJ., concur.