The Wisconsin Supreme Court Reaffirms That Uninsured Motorist Coverage Is Not Required For Miss-and-Run Accidents
In a case of déjà vu, the Wisconsin Supreme Court, in Progressive Northern Insurance Company v. Romanshek-1, revisited the issue of whether an insurer must provide uninsured motorist (UM) coverage when there is no contact between the insured or any part of the insured's vehicle and the miss-and-run vehicle. The court concluded, consistent with its decision twenty-two years earlier, that UM coverage is not required under these circumstances.
In the seminal case of Hayne v. Progressive Northern Insurance Company-2, the Wisconsin Supreme Court upheld the Progressive policy language that required a striking by the hit-and-run vehicle in order for the insured to collect under the UM coverage. The court in Hayne held that 632.32(4)(a)2.b., Wis. Stats., did not mandate UM coverage when there was no physical contact between the hit-and-run vehicle and the insured vehicle.
In June of this year, the court again considered this issue in Progressive Northern Insurance Company v. Romanshek. Progressive's insured, Richard Romanshek, was injured while operating his motorcycle in Florida. An unidentified vehicle turned in front of Romanshek, causing him to lose control and fall from the motorcycle. Neither Romanshek nor his motorcycle ever came into contact with the unknown vehicle, which disappeared and has never been identified.
When Romanshek made a claim for UM benefits, Progressive denied the claim because the unknown vehicle was not an "uninsured motor vehicle" as defined in the policy. The policy defined an uninsured motor vehicle, in part, as follows:
"Uninsured motor vehicle" means a land motor vehicle of any type or a trailer while used with a land motor vehicle:
- 1. That is a hit-and-run vehicle whose operator or owner cannot be identified and which strikes you or arelative;
a vehicle that you or a relative are occupying; or
a covered vehicle;
Progressive filed a motion for declaratory/summary judgment, arguing that its policy provided no UM coverage since the unknown vehicle did not strike Romanshek's motorcycle and thus it was not an uninsured motor vehicle as defined in the policy.-3
In an effort to avoid the application of Hayne, Romanshek contended that the Wisconsin courts have so eroded the "striking" requirement in UM cases in recent years that it should be eliminated. Romanshek also argued that the physical contact requirement contravenes the intent of UM coverage, and that the majority trend across the country has been to require the insurer to provide UM coverage, especially where the insurer has conceded that the insured is not fabricating the facts surrounding the accident.
The court (Chief Justice Abrahamson dissenting)-4 rejected Romanshek's arguments and held that "hit-and-run" as used in the definition of "uninsured motor vehicle" in 632.32(4)(a)2.b., Stats., does not require an insurer to provide UM benefits when its insured is the victim of a miss-and-run accident.
The court retraced the common law and statutory history of the term "hit-and-run." The court's thorough analysis encompassed a review of Hayne, as well as subsequent Wisconsin cases relied on by Romanshek to show, or at least suggest, a purported erosion of Hayne's physical contact requirement. These cases included Wegner v. Heritage Mutual Insurance Company -5, where the court held that UM coverage was not mandated in a three vehicle accident when the first car swerved into the lane of the second car, then the second car to swerved into the insured's lane, causing the insured's vehicle to go off the road; Dehnel v. State Farm Mutual Automobile Insurance Co -6, in which the court determined that UM coverage was not required when the insured's vehicle was struck by a piece of ice that fell off of a passing semitrailer; Theis v. Midwest Security Insurance Co. -7, where the court ruled that UM coverage was required when a detached piece of an unidentified motor vehicle was propelled into the insured's vehicle by an unidentified motor vehicle; and Smith v. General Casualty Insurance Co. -8, where UM coverage was required when an unidentified car in the left lane of an interstate struck a vehicle in the center lane, which then struck the insured's vehicle in the right lane. The court in Smith determined that the physical contact requirement was satisfied through the indirect hit by the unidentified vehicle, which had precipitated the accident through contact with the intermediate vehicle-9.
The court rejected Romanshek's argument that these cases have eroded and undermined the phyical contact requirement. The court maintained that for over twenty years, it had consistently adhered to the plain meaning of ' 632.32(4)(a)2.b., Stats., as set forth in Hayne, holding that UM coverage is not mandated in miss-and-run accidents-10.
The court also refused Romanshek's invitation to overrule Hayne because, according to Romanshek, a majority of other states have abandoned the physical contact requirement and it contravenes the intent of UM coverage. The court determined that Romanshek had not met his burden of showing why to court should depart from the doctrine of stare decisis and overrule Hayne, pointing out that the court's statutory interpretation in Hayne "clearly involves contracts and implicates reliance interests." -11
The court was not swayed by the fact that other states require coverage for miss-and-run accidents, noting that the underlying UM statutes vary in their language and interpretation.-12Indeed, at least six states have statutorily eliminated a physical contract requirement for UM coverage if there is some type of independent corroboration of the insured's version of the accident.-13 Several other states that do not require physical contact do not use the terminology "hit-and-run" in the UM statute, or do not define an uninsured vehicle as a hit-and-run vehicle.-14 The court in Romanshek did note that the legislature had not amended or changed our UM statute since the court's interpretation of it in , which indicated legislative acquiescence in the judicial construction of ' 632.32(4)(a)2.b., Stats.-15
The court also held that the physical contact requirement did not contravene public policy. Instead, because Hayne concluded that the physical contact requirement is part of the UM statute, "it cannot contravene public policy; it is public policy.-16
Finally, the court was unpersuaded by Romanshek's argument that UM coverage should be required because Progressive did not challenge his version of the how the accident occurred, and conceded that he was not attempting to perpetuate a fraud. The court stated that no change in the law is justified simply by a case with more egregious facts, and noted that prior hit-and-run cases had also involved uncontested, underlying factual allegations surrounding the accident.-17 The court further took note of the fact that while insurance policies may contain provision excluding UM coverage when there is no physical contact in order to avoid fraudulent claims, that is no justification for altering the court's interpretation of 632.32(4)(a)2.b. when fraud is not present.-18
The court was not unmindful of Romanshek's plight, and recognized that it may be good public policy to mandate UM coverage for an insured injured in a miss-and-run accident. However, the public policy arguments are best left to the legislature, which is the body charged with developing Wisconsin's public policy.-19
The Wisconsin Supreme Court has again spoken, for the second time in twenty-two years, on UM coverage for non-contact, miss-and-run motor vehicle accidents. If the legislature disagrees with the court's reaffirmance of its analysis in Hayne and its adherence to physical contact as a requirement of mandatory UM coverage, then it can change or amend 632.32(4)(a)2.b., Stats., as acknowledged by the Wisconsin Supreme Court in Romanshek. Unless and until that occurs, insurers in Wisconsin are not required to provide UM coverage to an insured involved in a miss-and-run accident.
1- 2005 WI 67, 697 N.W.2d 417.
2- 115 Wis. 2d 68, 339 N.W.2d 588 (1983).
3- Kasdorf, Lewis & Swietlik, S.C., represented Progressive Northern Insurance Company in both Hayne and Romanshek.
4- Chief Justice Abrahamson was also the sole dissenting Justice in Hayne v. Progressive Northern Insurance Company.
5- 173 Wis. 2d 118, 496 N.W.2d 140 (Ct. App. 1992).
6- 231 Wis. 2d 14, 604 N.W.2d 575 (Ct. App. 1999).
7- 2000 WI 127, 239 Wis. 2d 646.
8- 2000 WI 127, 239 Wis. 2d 646
9- Id. at & 12.
10- 2005 WI 67 at & 39.
11- Id.at& 47. The court also noted that, reliance interests of other parties aside, Progressive was the very insurer whose policy was implicated in Hayne.
12- Id.at & & 48-50.
13- Arizona, Kansas, Louisiana, Oregon, Utah and Washington.
14- Alabama, Connecticut, Florida, Maryland, Montana, New Jersey, New Mexico, Ohio and Pennsylvania.
15- Id.at && 52-58.
16- Id . at & 60.
17- Id.at & 61.
18- Id.at & 62.
19- Id.at & 65.