Michigan Court of Appeals; Docket # 329577; Unpublished
Judges O’Connell, Markey and Murray; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving a motorcycle accident and an unidentified vehicle, the Court of Appeals held that plaintiff-motorcyclist was not entitled to uninsured motorist (UM) benefits pursuant to his auto insurance policy because there was no “actual physical contact” between his motorcycle and the unidentified vehicle.
The Court further rejected plaintiff’s public policy argument for UM benefits, although there was evidence that plaintiff had not committed fraud in making his claim.
Plaintiff was riding his motorcycle and, in an attempt to avoiding hitting an unidentified vehicle, plaintiff applied his brakes. His wheels turned to the left, his bike went down and he was thrown into the air. Plaintiff acknowledged that he did not have physical contact with the unidentified vehicle or any other vehicle. Plaintiff’s insurance policy with defendant Auto Owners provided UM coverage and defined “uninsured automobile” as a “hit-and-run motor vehicle” that “causes bodily injury by actual physical contact with the injured person or the automobile the injured person is occupying; and whose owner or operator is unknown.” Auto Owners denied plaintiff’s UM claim, asserting there was no physical contact between the unidentified vehicle and plaintiff’s motorcycle, and such contact was required by the terms of the policy. Plaintiff filed this action seeking UM benefits. Auto Owners moved for summary disposition, arguing there was no contact – either direct or indirect – between the motorcycle and the unidentified vehicle. In response, plaintiff claimed the public policy reasoning behind the physical contact requirement is to prevent fraud by an injured party and he was entitled to benefits because there was no fraud in this case. Plaintiff pointed out that his account of the accident was corroborated by the affidavits of two others who were riding motorcycles with him at the time, as well as the police report. The trial court granted Auto Owners’ motion for summary disposition, finding the insurance contract required actual physical contact, which did not occur.
The Court of Appeals affirmed, holding that plaintiff was not entitled to UM benefits because there was no direct or indirect physical contact between the motorcycle and the unidentified vehicle. In so ruling, the Court rejected plaintiff’s argument that the physical contact requirement should be abandoned in cases where a plaintiff does not engage in fraud.
According to the Court of Appeals, UM benefits are generally unavailable when there is no physical contact between the insured’s vehicle and another vehicle. The Court noted that indirect physical contact may be sufficient to satisfy the physical contact requirement if the insured’s vehicle strikes an object left in the road by the unidentified vehicle, or if the unidentified vehicle propels an object or another vehicle into the insured’s vehicle. However, because neither direct nor indirect contact occurred in this case, plaintiff did not satisfy the policy’s terms for recovering UM benefits, the Court said.
Addressing plaintiff’s fraud and public policy arguments, the Court discussed Auto Club Ins Ass’n v Methner, 127 Mich App 683 (1983), where the appellate panel said the physical contact requirement is designed to reduce the possibility of fraud. Citing Methner, the Court said:
“The purpose of the language is to prevent phantom vehicle claims — the possibility that a motorist who negligently lost control of his own vehicle would recover by alleging that an unknown vehicle caused him to lose control.”
The Court, however, noted that in Kersten v DAIIE, 82 Mich App 459, 474 (1978), the Court had rejected the argument that in the absence of fraud there was no need to enforce a physical contact requirement.
The Court of Appeals continued by rejecting the “corroborative evidence test” advanced by plaintiff. This test has been adopted in Ohio and allows claims where there is independent, third-party testimony that the negligence of an unidentified vehicle was the proximate cause of the accident.
However, the Court of Appeals explained that the Ohio cases supporting the corroborative evidence test reference R.C. 3937.18, which is the Ohio statute requiring that insurance companies offer UM coverage. The Court noted that, unlike Ohio, Michigan UM coverage is not required by statute and is “purely a matter of contract.” The Court stated:
“Plaintiff’s argument ignores the fact that the policy in this case is a product of the parties’ agreement. The insurance policy unambiguously stated that there must be ‘actual physical contact’ between the unknown vehicle and ‘the injured person or the automobile the injured person is occupying.’ As a Court we are not empowered to dispense with the contractually agreed upon physical contact requirement and to instead adopt for the parties Ohio’s ‘corroborative evidence’ test.
Lastly, the Court of Appeals denounced plaintiff’s argument that the physical contact requirement in cases where fraud does not exist should be abandoned. The Court said:
“[W]e have not been provided with any policies that have been ‘adopted by the public through [the] various legal processes [that] are reflected in our state and federal constitutions, our statutes, and the common law.’”
Based on the foregoing, the Court of Appeals concluded:
“That Michigan enforces contractual ‘physical contact’ requirements, as opposed to Ohio’s ‘corroborative evidence’ test, does not mean that the Michigan approach is against public policy, as there is no indication that the Ohio ‘corroborative evidence’ test has ever been adopted through the various legal processes in Michigan or that it is ‘reflected in our state and federal constitutions, our statutes, and the common law.’ … Michigan policy does, however, favor the enforcement of otherwise valid contractual agreements.”
