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Rozenberg v Auto Club Group Ins Co (COA - UNP 12/29/2020; RB #4203)


Michigan Court of Appeals; Docket # 348773; Unpublished
Judges GadolaRonayne Krause, and O’Brienper curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

Not Applicable

Uninsured Motorist Benefits – Physical Contact Requirement

In this unanimous unpublished per curiam opinion, the Court of Appeals reversed the trial court’s order denying Defendant’s motion for summary disposition on the issue of Plaintiff’s entitlement to uninsured motorist benefits because a piece of a vehicle that struck Plaintiff’s car did not constitute “direct physical contact” necessary under the language of the policy. 

This case arose from an auto accident in which Plaintiff’s motor vehicle was struck by a piece of another vehicle that had become dislodged, causing his tire to “blow up” and his vehicle to “roll over and struck a median.” Plaintiff’s vehicle never made contact with the other truck. Following the accident, Plaintiff sought uninsured motorist benefits from Defendant, his insurer. Plaintiff’s insurance policy with Defendant defined “uninsured motor vehicle” as: 

a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with  

(1) You or a resident relative, or 
(2) A motor vehicle which an insured person is occupying[.] 

Upon Defendant’s refusal to pay Plaintiff UM benefits, Plaintiff brought suit. In response, Defendant brought a motion for summary disposition, arguing that no “direct physical contact” had occurred between the Plaintiff’s vehicle and the uninsured vehicle, precluding the payment of UM benefits. Plaintiff argued that “because the metallic object had been part of the hit-and-run truck, there was direct physical contact between his vehicle and the truck.” The trial court denied Defendant’s motion and determined that there was a question of material fact as to “whether the metallic object had been a detached part of the truck, rather than a third object thrown from or by the truck.”

On appeal, the Court first examined the policy language of the contract, noting that “the rights and limitations of [underinsured motorist coverage] are purely contractual and are construed without reference to the no-fault act.” In doing so, the Court found that some UM insurance policies were very broad and encompassed both direct and indirect physical contact, while other were much narrower and limited “to cases in which the unidentified vehicle itself strikes an injured person or vehicle.” Specifically, the Court made a comparison between the facts of this case and the facts of McJimpson v. Auto Club Group Ins. Co., 315 Mich. App. 353; 889 N.W.2d 724 (2016) in which a plaintiff was injured when a piece of metal fell off an unidentified truck and struck the plaintiff’s windshield, shattering it and injuring the plaintiff. The Court noted that 

[w]ith one confounding exception, the facts of this case are identical to the facts in McJimpson. In both cases, an object departed from the unknown vehicle and promptly impacted the insured’s vehicle, causing the insured’s injuries.  We are constrained to apply identical policy language to functionally-identical facts in an identical manner. The distinction is that, in McJimpson, the object that struck the plaintiff’s vehicle was apparently a piece of cargo; in contrast, the object in this matter was (for summary disposition purposes) a piece of the truck itself. Consequently, there is a reasonable argument that there was vehicle-to-vehicle contact in this case, especially because there was no intervening event between the object disengaging from the truck and striking plaintiff’s vehicle . . . . Indeed, any physical contact between two vehicles could only be between two parts of the vehicle.”  

However, the Court was ultimately constrained by the holdings of previous cases involving objects fallen from vehicles or involving pieces of vehicles in which the Michigan Court of Appeals found either “indirect physical contact or no physical contact at all.” In doing so, the Court noted that “this Court has implicitly always treated a disconnected piece of a vehicle as something ‘other’ than the vehicle itself – in other words, functionally indistinguishable from objects fallen from vehicles . . . [j]ust as a horseshoe is not a horse, so, too, a tire and rim is not a car.” Therefore, the Court held that “direct physical contact has been established as requiring two vehicles – as vehicles, rather than in pieces – to touch each other. Thus, we are constrained to conclude that no ‘direct physical contact’ occurred here.”

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