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Howard B. Cohen, Esq.
David H. Elibol, Esq.
Harry J. Forrest, Esq.
And the Law Firm of :
Gross Shuman Brizdle
& Gilfillan P.C.
465 Main Street, Suite 600
Buffalo, NY 14203
tel: 716.845.4300

For more info about our firm, go to www.gross-shuman.com

NOTE : PUBLICATION PENDING

 

New York’s “Hit” Requirement, A Call for Logical Interpretation of the Uninsured Motorist Coverage Endorsement

 

INTRODUCTION

New York State, by the Motor Vehicle Accident Indemnification Corporation Law (“MVAIC”) and the Insurance Department’s Supplementary Uninsured/Underinsured Motorists Coverage language (SUM) declared that it was in the utmost public interest to afford compensation to innocent victims of motor vehicle accidents for injuries and losses inflicted by a negligent unidentified motor vehicle whom leaves the scene of the accident.

 

Unfortunately, as will be illustrated, there are unfortunate circumstances where the public interest is thwarted by unnecessary rigid application of this statute’s requirements.  In a hit-and-run accident, MVAIC and SUM endorsement language requires “physical contact” between vehicles for a claimant to recover.  However, many “miss-and-run” accidents in which an unidentified motor vehicle clearly causes injury to another vehicle’s occupants, without direct physical contact between them - does not meet this State’s “physical contact” requirement.  Such a harsh effect of this rigid requirement should not be favored when the subject collision can be established by independent witness’ accounts of the accident.  Indeed, it is clear that an overly rigid application of New York’s “hit” requirement actually promotes injustice, in contravention to the very purpose of this legislation.

  

Fortunately, New York Courts, by Judicial interpretation, in limited circumstances, have tried to ameliorate this harsh effect.  We submit that the public interest can be furthered, judicially, by application of a “corroborative evidence test” which is easy to apply and advances the MVAIC legislation.

 

THE LAW

In 1958, the New York State Legislature found and declared that existing state statute did not fully accomplish its

 

“full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them.” (New York State L 1958, ch 759)". 

 

The New York State Legislature decried that “it is a matter of grave concern that such innocent victims are not recompensed for the injury and financial loss inflicted upon them and that the public interest can best be served by closing such gaps.” (New York State L 1958, ch 759). 

 

The Legislature, in enacting Insurance Law Section 5217, sought out a balance between providing innocent victims with compensation for injuries inflicted upon them by negligent operation of an unidentified or uninsured motor vehicle which leaves the scene of the accident; and avoiding fictitious accident claims which can be contrived in absence of physical contact.  See Motor Vehicle Accident Indemnification Corporation v. Eisenberg, 18 N.Y.2d 1, 2 (1996)).

 

 In doing so, MVAIC applies to a claim for a hit-and-run accident that involves

“injury to the qualified person [which] arose out of physical contact of the motor vehicle causing the injury with the qualified person or with a motor vehicle which the qualified person was occupying ... at the time of the accident” (emphasis added).  New York State L 1958, ch 759; Insurance Law Section 5201.

New York State Courts, consistent with this Legislative intent, have begun to logically expand the “physical contact” requirement to include certain situations where some form of contact can be established.  For instance, coverage was affected in a multiple vehicle collision where the injured did not come into direct “physical contact” specifically with the unidentified vehicle (see Allstate Ins. Co. V. Basdeo, 273 A.D.2d 466 (2000)); and where  an integral part of (but not the vehicle itself) an unidentified motor vehicle detaches and then causes injury to another person or their vehicle (see Allstate Ins. Co. V. Killakey, 78 N.Y.2d 325 (1991)).

 

 The decision of the First Department in Countrywide Ins. Co. v. Colon  (720 N.Y.S.2d 71 (2001)) is often cited in support of a permanent stay of arbitration when there is no proof of physical contact between the claimant’s vehicle and the hit-and-run vehicle. In Countrywide Ins. Co. v. Colon, supra, the First Department was not called upon to address an underlying factual scenario where the claimant could objectively establish the underinsured vehicle was the accident cause.  Indeed, claimant alleged an injury when his vehicle was “cut off” by another vehicle, causing claimant to lose control of his vehicle and drive into a building.  In staying arbitration, the First Department prevented claimant any recovery without proof of “physical contact” between the vehicles.  It must be noted that there was testimony obtained of the investigating officer that there was no second (unidentified) vehicle involved in this single vehicle accident.

 

The Countrywide Court appeared to give strict adherence to the earlier Court of Appeals decision in Eisenberg, which stated “the rationale for requiring proof of physical contact becomes apparent, while the requirement of actual impact between the hit-and-run vehicle and the insured’s vehicle recedes”  (18 N.Y.2d 1, 5).  The “physical contact” requirement of a Section 5217 claim serves to show the existence of a hit-and-run vehicle which almost invariably produces visible evidence of impact. 

 
 It is clear that the requirement of a “hit” minimizes the potential of false claims which was the primary concern of the Legislature in crafting the “hit” requirement.  Clearly, when such fraud concern can be overcome, rigid application of the “physical contact” requirement becomes inconsistent with the Legislative intent of providing compensation to innocent victims.

 

EXAMPLE

On September 10th, 2004, an on-duty Buffalo Police Officer was responding to an “officer in need of assistance” radio call.  The Officer, with lights and siren, proceeded on an expressway to assist.

 

Suddenly, and without warning, an unidentified motorist quickly entered the expressway and cut directly in front of the Officer’s vehicle.  By training and instinct, the Officer was able to sharply maneuver her vehicle and avoid collision with the unidentified vehicle.  Although successful in avoiding collision, the Officer lost control of her vehicle and then struck the center expressway median several times.

 

The police cruiser was totally destroyed by this collision with the center expressway median.  The Officer was admitted to Intensive Care Unit at a local Trauma Center and diagnosed with, among other injuries, a closed brain injury. 

 

This entire series of events, including the collision itself, was witnessed in full panoramic view by two disinterested witnesses - a local church Pastor and a 30 year  municipal bus driver.  The first witness stated: 

 

“If the Police Officer did not slow down by hitting her brakes, she would have plowed into the rear of the slower moving vehicle.  The driver of the slower moving vehicle kept going after the accident and did not stop at the scene.”

 The second witness stated: 

 

“The Police car then switched into the right lane and had to hit the brakes because the white car was merging into her lane and they just about collided.  After hitting the brakes, the driver of the Police car lost control of the vehicle.  The Police car then hit the left guardrail and then spun around several times looking like it was bouncing across the road.  The Police car traveled the width of the road and came to rest with the rear of the vehicle against the guardrail near the cement wall off the right side of the road”.
 

 Further:

 

“This accident happened about two to three car lengths ahead of me as I was still in the right lane and traveling about 50 miles per hour”.

 

The Police Officer had purchased Supplementary Under/Uninsured Motorist Coverage available under her Automobile Insurance Policy.  The insurer did not dispute that this witnessed collision occurred under these circumstances, but, nonetheless, denied the insured the very benefits sold to the Officer solely on the basis that the Officer’s vehicle did not come into physical contact with the unidentified motorist.  On motion, the Supreme Court, following Countrywide Ins. Co. v. Colon, supra, granted the insurer a permanent stay of arbitration.

 

Such strict adherence to the “physical contact” requirement has created a reverse statutory effect, punishing the careful driver and rewarding a less vigilant one. Without “physical contact” between the motorist’s vehicle and that of the negligent driver, the motorist who is fortunately able to avoid creating a major multi-car accident is left with limited recourse.

 

THE REMEDY

 

“Some states have balanced the need for preventing fraud with the rights of the insureds by incorporating into [uninsured motorist] statutes, either judicially or statutorily, language indicating that when no physical contact occurs, the insured must present sufficient corroborating evidence to prove that another phantom vehicle caused the accident as a condition precedent to recovering  [uninsured motorist] benefits.” (Meredith C. Nerem, Miss-And-Run Accidents and the Physical Contact Requirement: An Unfair Advantage for Insurance Companies in the Insurance Capital of the Heartland, 54 Drake L. Rev 535, 556). 

 

Some courts have held that “physical contact” requirements contained in statutory and insurance policy provisions are not enforceable where the claimant’s description of the accident can be established by evidence independent of the claimant’s own testimony.  For instance, the Ohio Supreme Court found the “physical contact” requirement unjustified and contrary to public policy, and stated that this absolute standard for recovery should be abandoned. (Girgis v. State Farm Mut. Auto. Ins. Co., 662 N.E.2d, 280, 282 (Ohio 1996)). 

 
The claimant in Girgis alleged that an unidentified vehicle swerved into her lane of travel, causing her to loose control of her vehicle, crash, and sustain injuries.  (Id.)   The insurance company denied the claimant coverage due to a lack of “physical contact.” (Id.)   The Girgis court held that the “physical contact” requirement was “contrary to public policy” and instructed that “public policy considerations should and do require the substitution of the ‘corroborative evidence test’ for the physical contact requirements” in cases where an unidentified drivers negligence causes injury.  (Id.) 

 

This “corroborative evidence test” allows a claim to go forward if the insured can produce evidence through the testimony of an independent third-party that the accident in question was proximately caused by the negligence of an unidentified vehicle. (Id.)   This test thus prevents injustice to an insured with a legitimate claim by allowing them to seek relief.  Moreover, this test’s use of independent third-party testimony helps guard against fraudulent claims.

The Girgis Court’s reasoning demonstrates that a balance can be struck between the needs of the insurance companies and the insureds.  As that court stated,

 

“we consider the danger of possible fraud acceptable compared with the current situation where insureds with legitimate claims are prevented, as a matter of law, from recovering.  Further, we are confident that the jury system will be able to distinguish between legitimate cases and fraudulent ones.” (Id. at 284). 

 

Although the corroborative evidence test will not eliminate all possible fraudulent claims, neither will it allow recovery in all innocent insured situations.  Rather, the corroborative evidence test serves to lessen the gap between these two extreme ends.
 
The West Virginia Supreme Court of Appeals likewise determined that an insured must “establish a close and substantial physical nexus between an unidentified hit-and-run vehicle and the insured vehicle” in order to satisfy the “physical contact” requirement. (Hamric v. Doe, 201 W.Va. 615, 623 (1997)).  In Hamric v. Doe, the court held that the “physical contact” requirement could not be enforced where there is sufficient independent evidence to corroborate the injured party’s account of the occurrence.  The court also determined that the West Virginia uninsured motorist statute was remedial in nature and should be interpreted liberally in order to effectuate its purpose. (Hamric v. Doe, 201 W.Va. at 623-24).  Thus, if there was no risk of fraud (the purpose for the “physical contact” requirement) there is no need to preclude benefits simply because of a lack of actual physical contact between the vehicles. 

 

The West Virginia Courts, in Dunn v. Doe (206 W.Va. 615 (1999)), extended this further finding that uninsured motorist benefits should be granted to a claimant when independent third-party evidence establishes that an unidentified vehicle sets in motion a sequence of events that is found to have proximately caused the accident for which uninsured motorist benefits are sought. The reliance on independent third-party evidence serves to minimize fraud as well as collusion.

 

CONCLUSION

It is eminently clear that such a rigid application of the “physical contact” requirement of New York State’s Motor Vehicle Accident Indemnification Corporation Law is unfair.  An innocent victim involved in an undisputed collision should not be outright denied the insurance benefits they had the foresight to purchase from their insurer.  New York Courts are well equipped to balance this injustice and the prevention of fraud by a less rigid application consistent with the Legislature’s concern for fraud and its stated intent to compensate innocent victims when sufficient corroborative evidence exists to determine that an unidentified vehicle caused their injuries. 

 

Ohio and West Virginia Courts have already demonstrated how this balance can be reached.  The use of the “corroborative evidence test” provides an objective standard which is easy to apply, and protects the interests of both the insurance company who does not want to pay fraudulent claims, and the innocent claimant whom has paid for insurance coverage for just such an unfortunate event and whom deserves compensation.

 

Rather than approaching this troubling issue by a piecemeal approach, application of the “Corroborative Evidence Test” in New York will promote and effectuate the Legislature’s declaration and intent to serve the public interest by both preventing fraudulent claims and also ensuring that innocent victims of motor vehicle accidents are adequately compensated for their loss.

 

___________________________

Howard B. Cohen is a partner at Gross, Shuman, Brizdle & Gilfillan, P.C. committed to helping injured victims of motor vehicle collisions.

Michael L.. Nisengard is a law clerk at Gross, Shuman, Brizdle & Gilfillan, P.C. and will earn his J.D. from the University at Buffalo in 2007.