Los Angeles Uninsured and Underinsured Motorist attorney Barry P. Goldberg is regularly confronted with issues which implicate the use of Uninsured/Underinsured Motorist Coverage. It is very common that an unidentified “hit and run” vehicle is involved in serious collisions. It is not uncommon for a “phantom” vehicle to cut someone off or run someone off the road. Sometimes a collision occurs because it is necessary to avoid striking a “phantom” vehicle. In order to access Uninsured Motorist coverage for a “hit and run”, there must be some form of physical contact.
The right to uninsured motorist benefits is governed by Insurance Code § 11580.2. Section 11580.2 (a)(1), requires, all automobile liability insurance policies to provide for recovery, within specified limits, for bodily injury or wrongful death for which the owner or operator of an “uninsured motor vehicle” is responsible. Section 11580.2 (b), defines “uninsured motor vehicle,” and provides in part, “As used in this section, ‘uninsured motor vehicle’ means a motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance or bond applicable at the time of the accident,. . . or the owner or operator thereof be unknown, provided that, with respect to an ‘uninsured motor vehicle’ whose owner or operator is unknown: (1) The bodily injury has arisen out of physical contact of the automobile with the insured or with an automobile that the insured is occupying. . . .” (Emphasis added.)
Plaintiff’s lawyers have tried to “push the envelope” in order to establish sufficient “physical contact.” As was true in State Farm Mut. Auto. Ins. Co. v. Yang (1995) 35 Cal.App.4th 563 (Yang), in which the Court of Appeal affirmed a declaratory judgment denying uninsured motorist coverage to an individual who had been injured by a drive-by shooter, Smith was not hit by the dark Mercedes SUV and his injuries did not arise out of physical contact with it: “His injury arose out of physical contact with the bullet which struck him. The bullet was not set in motion or propelled by the [Mercedes]. . . . The bullet was propelled by the gun from which the bullet was fired. . . . Any movement of the car would generally be insignificant insofar as the propulsion of the bullet is concerned.” (Id. at p. 574.)
In reaching its conclusion the Yang court explained and distinguished Inter-Insurance Exchange of Auto. Club v. Lopez (1965) 238 Cal.App.2d 441 and Pham v. Allstate Ins. Co. (1988) 206 Cal.App.3d 1193. In Lopez car X had hit car B and propelled it into car C, the insured vehicle. Car X then fled the scene. The Lopez court concluded this qualified as physical contact by car X within the meaning of section 11580.2. “We hold that where an unknown vehicle has struck a second vehicle and caused it to strike the insured vehicle, there is physical contact between the unknown vehicle and the insured vehicle within the meaning of the uninsured motorist endorsement.” (Lopez, at p. 446.)
In Pham a rock fell off a dump truck as it passed the insured vehicle travelling in the opposite direction. The rock bounced on the highway and then penetrated the windshield of the insured’s car, injuring her. The Pham court concluded, as had the court in Lopez, there was coverage if the uninsured vehicle provided the direct application of force that caused another object to strike an insured’s vehicle and injure the insured: “We can discern no logical difference between an object struck and propelled by an unknown vehicle and an object falling from such vehicle.” “We conclude that there is physical contact as required by the statute when either a part of a vehicle or an object which the vehicle is carrying strikes the insured or his vehicle.” (Pham, at p. 1198.)
In contrast, in Barnes v. Nationwide Mutual Ins. Co. (1986) 186 Cal.App.3d 541, also discussed in Yang, the plaintiff-insured lost control of her car after it had collided with a box of chairs lying on the road. The court held there was no uninsured motorist coverage because there was no direct application of force from an uninsured vehicle:
“Our courts have already considered and rejected the claim Ms. Barnes makes here, that because the box was a link on an otherwise unbroken chain of physical contact between the uninsured vehicle and her own, sufficient physical contact occurred.” (Barnes, at pp. 543-544; see Orpustan v. State Farm Mut. Auto. Ins. Co. (1972) 7 Cal.3d 988, 994 [denying coverage to insured who was injured after he swerved to avoid hitting an uninsured motor vehicle; “[t]he statute makes proof of ‘physical contact’ a condition precedent in every case for the recovery of damages caused by an unknown vehicle”].)
Based on the above analysis, an insured is not entitled to uninsured motorist coverage unless there is an “unbroken chain of physical contact.” An experienced personal injury attorney with extensive knowledge of Uninsured Motorist law is the best possible resource if you are involved in a “hit and run” accident.
