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Injuries can come from all kinds of auto accidents. You won’t always have an at-fault driver to sue. Sometimes damage is caused by indirect physical contact. When a hit-and-run accident only involves indirect physical contact, your client’s recovery could hinge on the language of his or her uninsured motorist policy.
A newly published Michigan Court of Appeals decision, McJimpson v Auto Club Group Insurance Company, addresses uninsured motorist coverage when an accident is caused by indirect physical contact. As with all optional auto insurance coverages, the decision depends on the language of the statute.
In April 2012, Karen McJimpson was injured when a piece of metal flew off of a semi-truck two car-lengths ahead of her, traveling in the same direction. The bouncing arc of metal caused nearby cars to swerve before hitting McJimpson’s car, shattering her windshield. She suffered from a SLAP tear in her left shoulder, strains and sprains in her neck and back, and spinal injuries, primarily as a result of slamming on the breaks. The tractor trailer drove off without ever stopping.
McJimpson filed first-party and third party claims against Auto Club Group Insurance Company under her uninsured motorist policy. This optional coverage entitled McJimpson to benefits if the vehicle that caused her injury was an uninsured motor vehicle. “Uninsured motorist” included:
“A hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with: (1) you or a resident relative, or (2) a motor vehicle which an insured person is occupying.”
Because uninsured motorist coverage is optional in Michigan, the court reviewed the policy under contract law. It was up to the court to construe the terms of the contract, particularly where those terms are unambiguous. The court reviewed two common forms of policy language before moving on to McJimpson’s coverage.
The court noted that some uninsured motorist policies include broadly worded coverage. They require that “the [unidentified] vehicle must hit or cause an object to hit, an insured, a covered ‘auto’ or a vehicle an ‘insured’ is occupying.” Because these policies are written broadly, these policies unambiguously cover any indirect physical contact resulting in damage, like the metal that hit McJimpson.
Other policies are more narrow. The terms of these policies require that there be “physical contact.” between the uninsured vehicle and the injured motorist. These policies don’t explicitly include cases where a vehicle causes an object to hit the Plaintiff or his or her vehicle.
However, in previous cases, Michigan courts have interpreted these policies to include indirect physical contact “as long as a substantial physical nexus between the disappearing vehicle and the object cast off or struck is established by the proofs.” Berry v State Farm Mut Auto Ins Co. That can include a piece of the unidentified vehicle, or something projected from it, but not something cast off by the occupants of that vehicle. Had the policy had been drafted to simply require “physical contact,” McJimpson would have been entitle to uninsured motorist benefits.
Unfortunately, the Auto Club uninsured motorist policy was even more restrictive. It required “direct contact” between the unidentified vehicle and the injured motorist or her vehicle. The court interpreted the contract,noting that it “does not refer to propelled objects.” The requirement of “direct contact” eliminated her access to benefits under the “substantial physical nexus” test. Because McJimpson wasn’t injured as a result of direct contact with the hit-and-run vehicle, her uninsured motorist vehicle was no help in paying for her personal injury damages.
Plaintiffs’ attorneys don’t often get the chance to advise clients about which uninsured motorist insurance to buy. If we did, McJimpson would give us grounds to warn our clients to read their policies carefully. Unfortunately, we don’t usually get involved until after the auto accident happens. That means we have to work with whatever policy our clients bring us.
McJimpson also gives trial attorneys a primer on reading and interpreting an uninsured motorist policy. Once you decide where your client’s policy falls on the spectrum, you can use McJimpson to explain whether your client will be able to collect benefits for indirect physical contact.
David Christensen is an auto accident attorney at Christensen Law in Southfield Michigan. He has been fighting back against restrictive insurance policies for over 20 years. If your client has an unusual auto injury claim, contact Christensen Law today for a referral.