Michigan Court of Appeals; Docket No. 102682; Unpublished
Judges Beasley, Sawyer, and Weaver; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
Underinsured Motorist Coverage: Underinsured Motorist Coverage in General
Underinsured Motorist Coverage: Physical Contact Requirement
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals held that in an action brought to recover uninsured motorist benefits, a plaintiff was not required to prove the negligence of the hit and run driver in order to receive such benefits under the terms of the insurance policy.
This is the second appeal of this case. See, Hill v Citizens (Item No. 1024).
Plaintiff’s decedent was killed when a large rock flew through the windshield of their vehicle while traveling on a state highway. The rock came through the windshield just as another vehicle passed plaintiff’s vehicle in the opposite direction. The claim that the other vehicle propelled the rock into plaintiff’s vehicle was held in the first appeal to be sufficient, without there being any direct physical contact between the two vehicles. The first appeal determined that indirect physical contact was sufficient. On remand, the lower court determined that there need not be any evidence of negligence in order to sustain a claim for injuries resulting from a hit and run accident.
On appeal, the Court of Appeals held that language in the policy requiring a report of the accident with a statement by the insured of his "cause of action" did not mean that the insured must prove negligence on the part of the hit and run driver. Citing from the Powers v DAIIE decision (Item No. 979), the Court of Appeals held that the contract language of this policy must be construed in favor of the insured. If the Court were to adopt defendant's argument that fault or negligence must be shown, the coverage for hit and run drivers becomes practically, if not actually, an illusory term in the contract. The insurer would never have to pay unless the insured proved negligence, which is practically impossible if the other driver and vehicle are not known. The Court held that a reasonable construction of the language requiring an insured to set forth his cause of action should be limited to the insured's freedom from negligence, along with facts indicating the other driver and vehicle could not be identified.
