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Ferega v. State Farm Mutual Automobile Ins. Co.

OCTOBER 31, 1973.




APPEAL from the Circuit Court of Christian County; the Hon. DANIEL H. DAILEY, Judge, presiding.


Plaintiff filed an action for declaratory judgment against plaintiff's insurance company alleging that the plaintiff was riding north on a road and an unidentified vehicle was being driven south; that light beams from the headlights from the oncoming unidentified vehicle made physical contact with the plaintiff's vehicle, and that plaintiff thereupon turned his vehicle to the right to avoid a head-on collision. Plaintiffs vehicle struck and made physical contact with a roadside culvert on the east side of the roadway, causing injuries to plaintiff and his spouse.

The defendant company denied liability based upon section 3 of the Uninsured Motorists vehicle coverage provided under their policy, which agrees to "pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle." The definition of uninsured motor vehicle includes, among other things, a hit and run motor vehicle, as defined — "a land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured * * *." By reason of absence of physical contact, the company claimed no benefits were payable. Among other things, it was stipulated that the plaintiff would testify "I do not remember his car striking my car or sideswiping it; there was to the best of my knowledge and recollection no physical impact by the parts of the automobile, but the headlight beams as such certainly contacted my eyes, my car, my entire vehicle." The trial court denied plaintiff's claim and plaintiff appeals, alleging that under the law and the trend of the law, liability should be found and that there was "constructive" physical contact between the insured vehicle and the hit and run vehicle.

• 1-3 If the language of the policy is clear and unambiguous, the plain ordinary and popular sense of meaning applies, and the contract made between the parties will be enforced. (Zitnik v. Burik, 395 Ill. 182, 69 N.E.2d 888.) It appears here that the plain ordinary meaning of the language requiring "physical contact" means "physical contact." We cannot accept the proposition that shining automobile lights on another vehicle can be considered physical contact.

The chief argument of the plaintiff is that the policy of the law is moving in the direction of eliminating identification of the hit and run vehicle and if there is no fraud on the part of the party making the claim, that a claim should be allowed regardless of physical contact or other considerations if the hit and run vehicle is unidentified. We are invited to join with the plaintiff's judgment of the trend or policy of the law. There have been many cases considering various aspects of uninsured motorists' claims. Many of these decisions have allowed liability holding, in the most usual posture, that when the company has attempted to frustrate the legislative purpose by making too restrictive provisions in its policy to meet the legislative requirements, that those provisions will not be given effect. Plaintiff's points and authorities do not present such an argument. The point was considered and decided unfavorably to this argument in Prosk v. Allstate Insurance Co., 82 Ill. App.2d 457, 226 N.E.2d 498.

In essence, plaintiff's contention is that the policy of the law is moving in the direction that an innocent motorist with uninsured motorists' coverage who is injured on the highway should be permitted to recover against his insurance company.

• 4 We are unaware of the existence of any such policy. Reasonable men might disagree about the trend which the law has taken and where it will end if it ends anywhere. Whatever the trend in the law may be, in our judgment, no such trend has appeared in any Illinois statute or judicial policy. The use of the words "hit and run vehicle" by the legislature seems to indicate a policy having to do with "hitting," which is spelled out as a physical impact. The legislature has not seen fit to include the "phantom automobile" as one presumably uninsured and thus included in the Act providing for uninsured motorist coverage. Absent such legislation, the courts should not assume the "phantom automobile" to be uninsured.

Besides, the courts have not traditionally been willing, nor do they consider themselves constitutionally free, to reform contracts to agree with the policy of the law which they may consider desirable.

The willingness of our Supreme Court to extend or create new forms of tort liability have always been accompanied with statements that in tort law, maintenance of the rule of stare decisis is not so significant. The rules and policies are to the contrary, however, in contract law. To be sure, courts have lent a willing ear to equivocal language, construed policies against the drafter and the issuer, found and pointed out inconsistencies and contradictions. All these positions are well within the high regard courts have always given to considerations of non-impairment of the obligation of contracts.

The constructive contact argument is an interesting one. It goes like this; the injured party is innocent and he is not making a fraudulent claim. Such a party deserves to recover. Since the contract requires contact, the court should construe contact out of innocence or lack of fraudulent purpose. It had made similar constructions before, it is argued, where the parties were innocent such as constructive notice, constructive possessions, constructive trusts, constructive frauds, and a constructive process by publication which, it is said, construes non-residents to be residents.

Without parsing the matter, it seems sufficient to say that in each instance which the court has seen fit to construe conduct, status, or a state of affairs to constitute something which it is not, it has occurred because of peculiar qualities of the conduct, status, or incident. In some instances, based on the fault or wrong of a party, certain considerations were construed by the court against him. In the particular instance involved, the liability to be fixed is against the insurance company pursuant to a contract. We are unable to perceive any condition of fault or blameworthiness about an insurer. While insurers are not favorites of the law, they are legitimate businesses. There is, therefore, no moving considerations which persuade us to find against the insurer that non-contact should be considered to be constructive physical contact.

Judgment affirmed.

EBERSPACHER, P.J., concurs.


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