Buckeye Ins. Co. v. Cooperman , 33 Ohio App. 2d 152 ( 1972 )

While I concur with the majority finding that the allegedly uninsured automobile involved in this case was not a "hit-and-run automobile" as defined in the policy, I must dissent because I find that such determination is not dispositive of the issues.

To constitute a hit-and-run autombile, the policy requires "physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident." In this case there was no physical contact. Since there was no physical contact, the provisos included in the definition have no application, and there is no need to determine whether they are consistent with R. C. 3937.18.

The provision of the policy relied upon is merely a definition of the term "hit-and-run automobile." The fact that a given automobile may not meet that definition does not preclude coverage. The policy includes two definitions of "uninsured automobile." The second is "hit-and-run automobile"; the first is stated as being an automobile with respect to which there is "no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile." The inclusion of hit-and-run automobiles does not limit or vary the general definition of uninsured automobile contained in the policy. Likewise, the definition of hit-and-run automobile in the policy cannot limit or vary the meaning of the term "uninsured motor vehicles" as used in R. C. 3937.18.

R. C. 3937.18 requires that an automobile liability insurance policy include provision "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom." The statute does not define what constitutes "uninsured motor vehicles" except to provide that "a motor vehicle is uninsured if the liability insurer denies coverage or is or becomes the subject of insolvency proceedings in any jurisdiction."

Operators of motor vehicles have been held liable for injuries proximately resulting from the negligent operation thereof even though there has been no physical contact with the injured party or the motor vehicle in which he was riding, e.g., Bennett v. Krauss (1956), 100 Ohio App. 495. Even though there was no physical contact, had the identity of the operator of the other automobile been ascertained, and, he would have been uninsured, the uninsured motorists coverage would be available to defendant. Plaintiff, in effect, contends that, where the identity of the operator of the other automobile cannot be ascertained, such other automobile cannot be an uninsured automobile in the absence of proof that there was "physical contact." Neither R. C. 3937.18 nor the policy so provides.

An uninsured automobile, as defined in the policy, is one with respect to which there is no liability "insurance policy applicable at the time of the accident." While the one claiming coverage under an insurance policy must bear the burden of proving coverage, burden of proof does not dispose of the issue. Where a person injured claims that he is legally entitled to recover damages from the operator of a motor vehicle but proves that he is unable to ascertain the identity of such operator, it is impossible to ascertain whether or not such operator, in fact, has liability insurance coverage.

However, the policy definition does not depend upon the existence of such a policy but, rather, depends upon whether or not such a policy is "applicable." Applicable means capable of being applied. See Whitney v. American Fidelity Co. (Mass. 1969), 215 N.E.2d 767. Where the identity of the operator of a motor vehicle cannot be ascertained, any liability insurance policy which may exist is not capable of being applied.

I would, therefore, hold that, under the circumstances of this case, there was no bodily injury liability insurance policyapplicable at the time of the accident with respect to the person claimed to be legally responsible for the use of the unknown automobile involved. Thus, such unknown automobile is an "uninsured automobile" within the policy definition, even though it was not a hit-and-run automobile. In my opinion, any contrary conclusion involves a rewriting of the policy definition to substitute "in effect" or words of similar import, for the word "applicable" as used in the policy.

Whether R. C. 3937.18 requires uninsured motorist coverage to include only situations where there is no liability insurance policy in effect, or requires such coverage to include all situations in which there is no liability insurance capable of being applied, need not be determined in this case.

In Curran v. State Auto. Mut. Ins. Co. (1971), 25 Ohio St.2d 33, Justice Corrigan stated, at page 38:

"The purpose of uninsured motorist protection was described by this court in Abate v. Pioneer Mutual Cas. Co. (1970),22 Ohio St.2d 161, 165, as follows:

"`Uninsured motorist coverage * * * is designed to protect persons injured in automobile accidents from losses which, because of the tort-feasor's lack of liability coverage, would otherwise go uncompensated.'

"R. C. 3937.18 itself indicates that uninsured motorist coverage is `for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * *.' (Emphasis added.)

"Given this express statutory purpose, we are of the opinion that the uninsured motorist statute should be construed liberally in order to effectuate the legislative purpose that coverage be provided to persons injured through the acts of uninsured motorists. * * *"

The uninsured motorists coverage provision of the policy should similarly be liberally construed.

Plaintiff in drafting the definition of uninsured automobile included in the policy chose to use the word "applicable" rather than the words "in effect" or words of similar import. Any ambiguity or uncertainty in the meaning of the language used in the insurance policy must be resolved in favor of the insured. This is the rule set forth in the first paragraph of the syllabus of Munchick v. Fidelity Casualty Co. (1965), 2 Ohio St.2d 303, which reads as follows:

"1. A contract of insurance prepared and phrased by the insurer is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language used is doubtful, uncertain or ambiguous. (Paragraph one of the syllabus of Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39, approved and followed.)"

Furthermore, there is a general presumption that that which is not clearly excluded from the operation of an insurance policy is included therein. The Home Indemnity Co. v.Plymouth (1945), 146 Ohio St. 96.

The policy contains no language excluding unknown or unidentified automobiles, which do not qualify as hit-and-run automobiles, from the operation of the uninsured motorist coverage. The language respecting hit-and-run automobiles is language of inclusion, not language of exclusion.

Had plaintiff wished to exclude unknown or unidentified automobiles, other than hit-and-run automobiles, from the uninsured motorist coverage, language to that effect could have been inserted into the policy, assuming such exclusion would be consistent with R. C. 3937.18. Plaintiff failed to insert such an exclusion into the policy. In the absence of any express language of exclusion, such an exclusion can be inserted into a policy only by construing the policy liberally in favor of the insurer rather than liberally in favor of the insured.

Plaintiff contends that one of the purposes of requiring physical contact is to prevent fraudulent claims. Assuming that to be a valid purpose, neither R. C. 3937.18 nor the policy expressly exclude coverage in circumstances where there is no physical contact. Furthermore, plaintiff makes no contention that the other automobile did not in fact exist, nor otherwise contends that the claim involved is a fraudulent claim. If no other automobile were involved, there could be no uninsured automobile.

Such issue can be raised as a basis for denying coverage. When put in issue, the burden of proof is upon the insured to prove the existence of the unknown or unidentified vehicle. With such burden of proof being upon the insured, the probability of such a fraudulent claim being successfully asserted is remote, unless one has little faith in the ability of our judicial system to ferret out truth and render justice.

Furthermore, the issue of the existence of the unidentified or unknown vehicle can also be raised in arbitration proceedings pursuant to the policy upon the issue of "whether the insured or such representative is legally entitled to recover such damages." If the unknown or unidentified automobile did not exist, or, if, it did exist but the operator thereof was not negligent, the insured could not be legally entitled to recover damages.

The exclusion that plaintiff seeks to have engrafted upon the policy would not be limited in effect to avoiding fraudulent claims, but would also bar all valid claims falling within its scope. The basic issue herein is whether, where it is proved that it is impossible to determine if a motor vehicle is, in fact, insured or uninsured, such motor vehicle is to be deemed to be insured or uninsured under the uninsured motorist coverage of the policy. I would conclude that, under such circumstances, there is no liability insurance policy applicable within the meaning of the language of the policy and, thus, the uninsured motorist coverage is available to the insured.

Accordingly, I would reverse.