For Want of a Word In Policy Insurer Loses

Hit and Run Driver Who Forces One Vehicle into Another Allows for UM Coverage

Uninsured motorist (UM) coverage covers injuries caused by a phantom vehicle that causes injury and runs from the scene – a classic hit-and-run accident. Because of widespread fraud insurers have included language in their policies requiring actual, physical contact between the phantom vehicle and the vehicle of the person making an UM claim.

In Ronald Tucker v. John Doe and Metropolitan Group Property And Casualty Insurance Company, Court of Appeals of Michigan, 2017 WL 999513, No. 330199 (3/14/17) a hit-and-run driver struck a van, which then struck plaintiff’s vehicle. Plaintiff had just parked his car when a dark-colored minivan, traveling at a speed of 70 to 80 miles per hour, struck a white van traveling through a nearby intersection. The force of the impact caused the white van to hit plaintiff’s car while plaintiff was still inside. The dark-colored minivan left the scene of the accident.


At the time of the accident, plaintiff had a no-fault insurance policy with defendant, which included uninsured motorist coverage. The policy provided this uninsured motorist coverage.  The policy defined the phrase “uninsured motor vehicle” defined as “a hit and run motor vehicle which causes bodily injury to a person covered under this section as the result of striking that person or a motor vehicle which that person is occupying at the time of the accident ….”


Based on these provisions, plaintiff sought uninsured motorist benefits under the insurance policy. However, the insurer denied the claim, reasoning that plaintiff could not satisfy the “striking” requirement in the policy. Thereafter, plaintiff filed suit against defendant. The insurer moved for summary disposition, which the trial court granted based on the conclusion that plaintiff could not claim uninsured motorist benefits under the policy because the hit-and-run minivan did not “strike” plaintiff or his vehicle.  The insured appealed.

On appeal, plaintiff argues that the trial court erred by granting defendant’s motion for summary disposition because there was a “substantial physical nexus” between the hit-and-run vehicle and the van that struck plaintiff’s vehicle, which satisfied the striking requirement under plaintiff’s automobile insurance policy. In particular, plaintiff maintains that the insurance policy, as written, does not require direct physical contact between plaintiff’s vehicle and that of the hit-and-run vehicle. Instead, plaintiff contends that the striking requirement is satisfied in this case because the hit-and-run vehicle accomplished the striking of plaintiff’s vehicle through the use of an intermediary vehicle.


Uninsured motorist insurance permits an injured motorist to obtain coverage from his or her own insurance company to the extent that a third-party claim would be permitted against the uninsured at-fault driver.  Because Michigan’s no-fault act does not require uninsured motorist coverage, the rights and limitations of such coverage are purely contractual and are construed without reference to the no-fault act. The proper interpretation of contracts and the legal effect of contractual provisions are questions of law subject to review. Insurance policies are construed in the same manner as any other species of contract, giving its terms their ordinary and plain meaning if such would be apparent to a reader of the instrument.

A variety of linguistic formulations have been used in providing for uninsured motorist coverage in cases of hit-and-run accidents. Commonly, these policies require some sort of “physical contact” between the injured party’s vehicle and the hit- and-run vehicle. The purpose of this “physical contact” requirement is to reduce the possibility of fraudulent phantom vehicle claims.

The manner of physical contact required—that is, whether the hit-and-run vehicle must have direct physical contact with the injured party’s vehicle, or whether contact can occur through an intermediate object—will depend on the wording of the specific policy. For instance, in one case the court determined that “direct” physical contact was required because the policy at issue required “direct physical contact” with the hit-and-run motor vehicle. In contrast, in the absence of a modifying term, such as “direct,” the Court has repeatedly recognized that a “physical contact” requirement is satisfied by direct or indirect contact. The most common circumstances in which recovery is permitted is when (1) the hit-and-run vehicle strikes a second or intervening vehicle which in turn is propelled into plaintiff’s vehicle and (2) an object is propelled into the plaintiff’s vehicle by another vehicle which does not stop.

Uninsured motorist insurance coverage exists under the policy in the event of a hit-and-run accident when a hit-and-run motor vehicle causes bodily injury to a person covered under this section as the result of striking that person or a motor vehicle which that person is occupying at the time of the accident.

In the absence of a modifying term such as “direct,” use of the term “striking” allows for direct or indirect physical contact.  In this respect, as commonly understood, the term “strike” generally allows that striking may be accomplished through an instrumentality. Instead, striking with an intermediate object will suffice, and the question in this case becomes whether there was a “substantial physical nexus” between the hit-and-run vehicle and the vehicle that struck plaintiff’s car.

Clearly, in this case, there is at least a question of fact with regard to whether the hit-and-run vehicle struck plaintiff’s vehicle within the meaning of the policy. Plaintiff testified, and statements by the driver of the intermediate vehicle confirmed, that the hit-and-run vehicle forced the intermediate vehicle into plaintiff’s vehicle.

Given this evidence, it could reasonably be concluded that there is a substantial physical nexus and that the hit-and-run vehicle accomplished the striking of plaintiff’s car through the use of the intermediate vehicle. Consequently, the trial court erred by granting defendant’s motion for summary disposition and the Court of Appeal reversed and remanded the case to the trial court for trial.


People who write insurance policies – a very difficult task – usually choose their words carefully and are guided by court decisions. Metropolitan wrote its policy to only require the striking of the insured’s building and left out the word “direct” that other insurers used. In so doing, if the vehicle is struck in a Rube Goldberg machine fashion, or by striking one vehicle that then strikes the plaintiff, the insurer’s defense fails. Metropolitan’s claim people and the author of the policy failed to work together.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

This article and all of the blog posts on this site summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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