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Volume XXVIII, No. 16, May 20, 2016        

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau

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THE COURT OF APPEALS APPLIES THE “DIRECT PHYSICAL CONTACT” LANGUAGE
IN AN UNINSURED MOTORIST COVERAGE PROVISION

By Caryn Ford

The Court of Appeals published decision in McJimpson v Auto Club Group Ins Co, ___ Mich App ___ (May 12, 2016)[1] determined that uninsured motorist (UM) coverage was not triggered because the Plaintiff did not make “direct physical contact” with the unidentified vehicle as required by the policy terms in order to trigger UM coverage.

In McJimpson, the plaintiff was operating her motor vehicle on I-96 when a piece of metal flew off an unidentified 18-wheeler semi-truck and struck her car, shattering her windshield.  Plaintiff claimed she suffered an injury as a result of the accident and sought uninsured motorist benefits from her insurer, Auto Club Group Insurance Company.

Under the policy, Plaintiff was entitled to UM benefits if the vehicle that caused her injuries met the contractual definition of an “uninsured motor vehicle,” which includes “a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with: (1) you or a resident relative, or (2) a motor vehicle which an insured person is occupying.”

Auto Club filed a motion for summary disposition seeking a determination that Plaintiff was not entitled to UM benefits because she did not meet the requirements of the UM provision which required direct physical contact with the unidentified vehicle.  The trial court denied this motion.

On appeal, the Court of Appeals reversed the trial court’s order and determined that Auto Club was entitled to summary disposition because no direct physical contact was made between Plaintiff’s vehicle and the unidentified semi and, thus, no UM coverage was triggered under the policy.  In reaching this decision, the Court distinguished the unambiguous “direct physical contact” language from UM policy language previously interpreted by the Court.

For instance, the Court noted that some policies are written broadly and would provide coverage in this setting.  In Dancey v Travelers Prop Cas Co, 288 Mich App 1, 7; 792 NW2d 372 (2010), the UM coverage required that “the [unidentified] vehicle must hit or cause an object to hit, an insured, a covered ‘auto’ or a vehicle an insured is occupying.”   Had the Auto Club policy at issue had similar language, then coverage would have been triggered in this instance.

The Court also noted that when a UM policy requires only “physical contact” between the vehicles the Court has found that to mean both direct and indirect contact are sufficient to trigger coverage.  Indirect physical contact has included a rock being thrown or an object being cast off by the hit-and-run vehicle.

The language in this case, however, is different than the “physical contact” language.  The Court of Appeals found that Auto Club’s policy is written more narrowly, providing for coverage only where the unidentified vehicle makes “direct physical contact” with the insured or her vehicle.  The Court noted that it does not refer to propelled objects nor does it use the unmodified term “physical contact”.  Instead it uses the limiting language of “direct physical contact” with the unidentified vehicle.  Because this requirement was not met here, the Court of Appeals determined that Plaintiff was not entitled to UM benefits and, thus, reversed the trial court’s order denying Auto Club’s motion for summary disposition.


[1] The McJimpson case was handled in the Court of Appeals by Ms. Ford.