When a hunter’s prey falls off a vehicle and causes an accident, is that hunter a hit-and-run driver? Can the victim of such a deer accident recover uninsured motorist insurance benefits after the crash? The Michigan Court of Appeals says no.
Gina Buchman was driving east on M-59 late on October 15, 2013, when she saw something in the road. The obstruction looked to her like a deer wrapped in a tarp. She swerved and lost control of her vehicle, eventually hitting the tarp-covered deer and running head-first into a concrete barrier.
Victoria Gill saw the incident happen. When she went to help Buchman, the injured motorist asked “did you see that deer?” Gill hadn’t. But she did see Buchman lose control of her vehicle and crash into the median. Another driver saw the tarp, but not the deer. An Oakland County Sheriff Deputy who responded to the accident was not able to find the deer or the tarp.
As the result of the accident Buchman suffered two herniated discs in her neck and back, which may have been considered a serious impairment of body function, qualifying her for uninsured motorist insurance benefits. But when she filed the claim, and later the lawsuit, MemberSelect Insurance Company refused to pay benefits. Why? Because the deer accident did not involve “direct physical contact” with an uninsured motorist’s vehicle.
Uninsured Motorist Insurance Contracts
The Michigan No-Fault Act does not require drivers to buy uninsured motorist insurance. Instead, those who choose to carry this optional insurance policy, do so voluntarily. Because of this, courts interpret a UIM policy using contract law. They interpret the rights and limitations of the policy based solely on the language of the contract.
Buchman’s uninsured motorist insurance policy with MemberSelect covered any 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.” Further, the provision defines an “uninsured motor vehicle” as a motor vehicle 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.
Because Buchman stated she hit a deer wrapped in a tarp, the question for the court of appeals was whether that counted as “direct physical contact” with another vehicle.
Direct Physical Contact Requirement
In Buchman v MemberSelect Insurance Company, Michigan Court of Appeals compared the MemberSelect uninsured motorist policy with the one used in McJimpson v Auto Club Group. In that case, the injured motorist was struck by a piece of metal that flew off an unidentified motorist’s vehicle. McJimpson sued for uninsured motorist benefits under a policy that had the same “direct physical contact” requirement. That court held that the uninsured motorist provision was unlike prior cases of propelled objects, which only required a “substantial physical nexus” between the injury and the unidentified driver. Because the policy language was “written more narrowly” direct physical contact between the uninsured motorist vehicle and the plaintiff’s vehicle was required.
The court ruled that Buchman’s uninsured motorist insurance policy was the same as the McJimpson policy. Both required direct physical contact with the uninsured vehicle.
No one in Buchman claimed that such a vehicle existed. Buchman testified that she hit a deer wrapped in a tarp. The eye witness saw her swerve and lose control of her vehicle. None of the evidence pointed to another vehicle. Plaintiff even admitted there was no other vehicle involved in the accident. Thus, there was no “direct physical contact” and Buchman’s uninsured motorist insurance claim had to be dismissed.
Representing Injured Motorists After Buchman
These new, more narrowly written uninsured motorist insurance policies are making it harder for injured motorists to get the Third Party damages they need. While First Party benefits will still be available to cover medical expenses, lost wages, and attendant care costs, motorists injured because of another driver’s negligence regarding their cargo will have a harder time collecting benefits under their insurance policies.
Auto accident attorneys should warn clients to read their insurance policies closely and look for the broader coverage, even if it costs more. Otherwise, they could be out of luck if their injuries are caused by a piece of flying metal, or someone’s trophy deer laying in the road.
David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He represents the victims of single-car and multi-car accidents. If your client is facing a difficult no-fault issue, contact Christensen Law today for a referral.