Michigan Court of Appeals; Docket # 326838; Unpublished
Judges Murphy, Stephens and Boonstra; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Majority Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits – Physical Contact Requirement
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff's claim for uninsured motorist benefits after she was injured in a single-vehicle accident, the Court of Appeals held that summary disposition was proper for defendant insurer because neither plaintiff nor her vehicle came in "direct physical contact" with an uninsured vehicle, as required by the uninsured motorist policy.
Plaintiff sustained two herniated discs, one in her neck and one in her back, when she was involved in a single-car accident. Plaintiff asserted she encountered an object on the highway while driving, which appeared to be "a deer wrapped in a tarp." Plaintiff claimed she swerved to avoid the object but lost control of her vehicle, struck the object and crashed into a concrete barrier. Victoria Gill, an eyewitness, said that plaintiff "lost control of her car going back and forth and then [crashed] into the median." Gill said she did not see a tarp or any other object in the highway. An unidentified man who arrived at the scene allegedly stated that he had seen the tarp and wanted to get if off the highway before it caused an accident. An Oakland County sheriff's deputy, who also arrived at the scene, indicated that he did not see a tarp on the highway and confirmed that plaintiff was involved in a single-car accident.
Plaintiff filed an uninsured motorist claim with defendant MemberSelect Insurance. Defendant denied the claim, reasoning that neither plaintiff nor her vehicle came in "direct physical contact" with an uninsured motorist's vehicle. Plaintiff then filed this action against defendant to recover uninsured motorist benefits. Defendant moved for summary disposition, arguing the policy's "direct physical contact" requirement was not satisfied. The trial court denied defendant's motion for summary disposition.
Plaintiff's uninsured motorist policy said that defendant would pay benefits where the insured suffered bodily injury that: "(a) is caused by accident; and (b) arises out of the ownership, operation, maintenance or use of an uninsured motor vehicle; and (c) that insured person suffers death, serious impairment of body function or permanent serious disfigurement; and (d) that insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle." The policy further defined an uninsured motor vehicle as one that is "(a) not insured by an owner's or operator's bodily injury [policy], [or] . . . (b) a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with" the insured, a resident relative of the insured or a motor vehicle occupied by the insured.
The Court of Appeals reversed, finding no genuine issue of material fact existed as to whether plaintiff or her vehicle made "direct physical contact" with an uninsured motorist's vehicle, as required under the insurance policy.
According to the Court of Appeals, plaintiff's case was analogous to McJimpson v Auto Club Group Ins Co, ___ Mich App___ (2016). In McJimpson, the Court of Appeals held that a plaintiff's uninsured motorist coverage was not triggered because the provision in her policy provided for coverage "only where the unidentified vehicle makes 'direct contact' with the insured or her vehicle," and that requirement was not met.
The policy language in this case, the Court of Appeals said, was identical to that in McJimpson. The Court further noted that, also like McJimpson, plaintiff never struck another vehicle when she tried to avoid what she believed was a "deer wrapped in a tarp." Moreover, the Court pointed out that plaintiff "admitted that no other vehicle was involved in the accident," an eyewitness testified that plaintiff was the "only vehicle involved in the accident" and law enforcement confirmed that plaintiff "was involved in a single-car accident."
Based on the foregoing, the Court of Appeals concluded:
"Therefore, it is undisputed that plaintiff's vehicle did not make 'direct physical contact' with another motor vehicle. Because plaintiff did not make 'direct physical contact' with an unidentified 'hit-and-run vehicle,' plaintiff's [sic] is not subject to uninsured motorist coverage under the policy issued by defendant. Accordingly, the trial court erred when it denied defendant's motion for summary disposition."
