Mississippi Sumpreme Court Holds Uninsured Motorist Coverage Not Triggered Absent Actual Physical Contact; No Coverage for "Hit and Run" Incident Resulting in Dealth

By Stempel, Jeffrey W. | Journal of Risk and Insurance, December 2000 | Go to article overview

Mississippi Sumpreme Court Holds Uninsured Motorist Coverage Not Triggered Absent Actual Physical Contact; No Coverage for "Hit and Run" Incident Resulting in Dealth


Stempel, Jeffrey W., Journal of Risk and Insurance


Massachusetts Bay Ins. Co. v. Allstate Indem. Co. v. Joyner, 736 So.2d 877 (Mississippi Supreme Court-July 20, 2000)

The facts of this case read like something out of a bad action movie. On September 19, 1996, on an interstate outside Jackson, Mississippi, two cars were traveling in the left lane. A black sport utility vehicle (SUV) was passing them on the right and found its path blocked by a slow-moving truck. Rather than braking, the SUV swerved to the right. In the left lane, Evelyn Joiner swerved farther left in response to avoid a collision with the SUV, entered the median of the highway, lost control, flipped, and was killed. The other car in the left lane witnessed the tragedy as the black SUV continued speeding on into the night, never to be apprehended.

After Joyner's death, her husband sought uninsured motorist benefits from Allstate (which provided $30,000 in such coverage) and Massachusetts Bay (which had uninsured motorist limits of $200,000). The theory of uninsured motorist coverage is that it provides the coverage that would have been available had the policyholder been able to bring a tort claim against an insured driver. Normally, of course, drivers do not flee the scene of an accident, and a prospective plaintiff knows who the alleged tortfeasor is and finds out whether that driver has sufficient insurance. To the extent that the tortfeasor driver is uninsured or underinsured, the innocent driver may recover up to applicable policy limits from its uninsured or underinsured motorist coverage.

Hit-and-run drivers have always been a problem for uninsured motorist coverage disputes as well as for society. A hit-and-run driver who escapes is constructively an uninsured motorist because neither the driver nor his or her insurance can be brought before a court. In a typical hit-and-run case involving a collision, insurers normally pay uninsured motorist benefits unless they have significant grounds for suspecting that an accident was fraudulently staged. But what about the "miss-and-run" incident, where the escaping driver did not physically collide with the injured party but otherwise caused the injury? In hit-and-run cases of this sort, insurers have tended to resist paying claims, partially on general principles ("hit" should mean "hit" rather than "cause a swerve") and partially out of concern that fraud is more likely in the absence of physical impact.

Cases dealing with miss-and-run incidents are divided. In some states, such as Mississippi, insurers have been successful in obtaining codification of a physical impact requirement for uninsured motorist coverage. State law provides that an "uninsured motor vehicle" shall mean a

motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.

Miss. Cod-Ann. 83-11-103 (1999) (emphasis added).

Mississippi recently took a strong position in favor of requiring physical impact for coverage in a 7-2 opinion, reversing a trial court ruling for the policyholder and entering judgment as a matter of law for the insurer. Despite the sympathetic factual situation and the loss to the Joyner family, the Court felt constrained by what it regarded as the clear language of the statute. …

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