March 05, 2018
In the published opinion Jeremy Drouillard v American Alternative Insurance Corporation, ___Mich App._____(2018), issued on February 27, 2018 by the Michigan Court of Appeals, the Court held that a strict reading of the plain language of the applicable uninsured motorist provision in the controlling no-fault automobile insurance policy required the Court to look at the effect of the language requiring that the hit-and-run vehicle “cause an object to hit” the insured, an insured vehicle or a vehicle occupied by the insured.
In Drouillard, plaintiff insured was an EMT riding as a passenger in an ambulance that struck a pile of drywall and debris that had dropped from an unidentified pickup truck moments before when the pickup truck sped through an intersection. The witnesses estimated that the vehicle passed through the intersection and dropped the material just seconds before the material was struck by the ambulance. Plaintiff insured filed a claim for uninsured motorist benefits. The insurer of the ambulance, AAIC, denied the claim based upon its belief that no “uninsured motor vehicle” was involved in the accident. Plaintiff sued, and AAIC filed a motion for summary disposition arguing that the pickup truck was not a “hit-and-run” vehicle, and the pickup truck did not cause an object to hit the ambulance. The trial court rejected both arguments and denied the motion for summary disposition.
On appeal, the Court considered the language of the policy, which required the uninsured vehicle “hit, or cause an object to hit, an ‘insured’, a covered ‘auto’ or a vehicle an ‘insured’ is ‘occupying.'”
The Court first addressed AAIC’s argument that plaintiff must establish the driver of the pickup had knowledge that the materials fell off the truck and caused the ambulance to strike them in order for the pickup truck to be considered a “hit-and-run” vehicle. The Court of Appeals chose not to decide whether such knowledge was required, and instead assumed that such knowledge was required, ultimately agreeing with the Circuit Court that a question of fact existed as to the knowledge of the driver of the pickup truck. Thus, the Court of Appeals agreed AAIC was not entitled to summary disposition on that issue.
The Court then addressed AAIC’s second argument, that the pickup truck must have caused an object to hit the ambulance. Recognizing that the published decision in Dancey v Travelers Prop Cas Co., 288 Mich App 1; 792 NW2d 372 (2010) considered facts, and policy language, very similar to the present case, the Court of Appeals first addressed the application of Dancey to its case. The Court found that Dancey did not focus on the same question – how to give effect to the language requiring that the hit-and-run vehicle “cause an object to hit” the vehicle occupied by an insured – and instead focused on whether a substantial nexus existed between the object that fell from the “hit-and-run” vehicle and the “hit-and-run” vehicle itself. Thus, the Court found Dancey not dispositive and agreed with AAIC finding that the evidence did not establish the pickup truck caused the materials that fell from the pickup truck to hit the ambulance. Instead, the ambulance hit the materials. Therefore, under the policy language, plaintiff was not entitled to uninsured motorist benefits.
The concurrence, authored by Judge Turkel, focused heavily on the difference between a hit-and-run vehicle, and a run-and-hit vehicle. The concurrence opined that the Dancey Court wrongly concluded that a vehicle which starts a chain of events which later cause an accident is assumed to constitute a hit-and-run vehicle, wrongly labeling a vehicle that creates a dangerous condition short of an accident, and which continues driving, a hit-and-run vehicle. The concurrence argued a hit must first occur, before the vehicle runs,in order to satisfy the policy language. Thus, whether there was a substantial physical nexus between the material and pickup truck here, the concurrence found an important temporal requirement in the policy language which it believed Dancey failed to address.
The dissent, authored by Judge Meter, found that Dancey, and the policy language itself, suggested coverage existed in the present case and thus the Circuit Court did not err in denying summary disposition in favor of AAIC.