July 22, 2022
We thought we already knew what a “hit and run” accident was. And for purposes of making clear what a “hit and run” vehicle is within the meaning of an auto insurance policy’s provision of uninsured motorist benefits for injuries caused by a “hit and run” vehicle, there never seemed to be much need for a published appellate decision. That is, not until the case of Wasik v Auto Club Ins Assoc, __ Mich App __ (No. 355848, 6/2/2022), came along, a case in which Garan Lucow Miller, P.C. attorneys Rick Plumb and Dan Saylor represented Progressive in the Circuit Court and Court of Appeals proceedings, respectively. Now, however, we have clear authority stating what is, and what is not, a “hit and run” vehicle.
In Wasik, the plaintiff was a passenger in a car belonging to his girlfriend, Anna Mayer, one winter evening near the campus of Michigan State University. While starting to turn right after having stopped for a red light, their car was bumped from behind by a Ford Explorer that had slipped on a patch of ice. Both drivers turned on their emergency flashers, then the Explorer immediately followed Mayer’s car into a parking lot. Mayer and the other driver exited their vehicles, together examined their respective bumpers to confirm there was no damage, and spoke to each other to ensure that nobody was injured. Then, having agreed not to bother calling the police, Mayer and the other driver left the scene without exchanging information.
Plaintiff Wasik himself, who also had briefly exited the vehicle and ultimately admitted having had the opportunity to ask for identifying information or take down the Explorer’s license plate number, began complaining of pain soon after the accident. Later that night his girlfriend took him to an emergency room where he was diagnosed with a concussion. Given his inability to identify the allegedly at-fault party in his accident, Wasik brought claims for uninsured motorist (UM) benefits against his parents’ insurer, Progressive, and the insurer of his girlfriend’s car, Auto Club. The claims were rejected, and when he sued them in the Oakland County Circuit Court, the insurers prevailed on motions for summary disposition. Wasik appealed, arguing that he was, in fact, injured by a “hit-and-run vehicle.”
Both the Progressive and the Auto Club policies provided coverage for UM benefits in hit and run accident situations. They did so by defining an “uninsured motor vehicle” to include a motor vehicle “that is a hit-and-run vehicle whose owner or operator cannot be identified…” (the Progressive policy), or (in the case of the Auto Club policy) a motor vehicle that is “a hit-and-run motor vehicle of which the operator and owner are unknown…” It is important to note that, in both of these policy provisions, a “hit-and-run vehicle” is not itself defined. Rather, the policies leave the meaning of a “hit-and-run vehicle” to its plain, commonly understood sense. Both policies do also require that the owner or operator of the vehicle be unidentified or unknown, but these are phrased as an additional requirement. For instance, if the police, in a true “hit and run” situation, were to succeed in tracking down the driver and make the identifying information available to the claimant, this “hit and run vehicle” would not qualify as an “uninsured vehicle” because it would fail the second element of the policy definition; thus, no UM coverage – even though the offending vehicle still would unquestionably constitute a “hit and run vehicle.”
Here, since Wasik was left with no identifying information about the owner or driver of the Explorer that struck his girlfriend’s car, he maintained that the offending vehicle thus qualified as a “hit and run vehicle” for purposes of his claim for UM benefits. In fact, there have been auto insurance policies, different from the Auto Club and Progressive policies in this case, that do specifically define a “hit and run vehicle” in a way that would support Wasik’s position. E.g., Berry v State Farm Mut Ins Co, 219 Mich App 340 (1996) (policy’s UM coverage defined “hit-and-run vehicle” as “a land motor vehicle whose owner or driver remains unknown…”). Under such terminology, a UM claim like Wasik’s would likely be valid since, instead of meeting the commonly understood meaning of “hit and run vehicle,” the claimant would need only to establish that the identity of the at-fault driver was never obtained. Insurers are advised, therefore, to be attentive to the specific phrasing of their hit and run UM provisions to ascertain whether the policy defines “hit-and-run vehicle” or relies on the phrase’s plain, commonly understood meaning.
In Wasik’s case, however, the issue became whether, as a matter of common understanding, and based on the facts presented, the offending Explorer in his accident qualified as a “hit-and-run vehicle.” Wasik’s argument relied mainly on the obligations all Michigan drivers have, when involved in a motor vehicle accident, to remain at the scene and provide their name, address, and vehicle information to those involved in the accident. The Michigan vehicle code imposes penalties for failing to satisfy these requirements. Wasik thus argued that it is this failure to provide identifying information that forms the essence of a “hit and run” accident. But the Court of Appeals rejected this argument – mainly because the phrase “hit and run” does not appear anywhere in these provisions of the Michigan vehicle code. (“The referenced statutes neither define ‘hit-and-run vehicle,’ nor do they contain that phrase.”)
Instead, the Court of Appeals provided a commonly understood meaning of a “hit and run vehicle” in a way that comports with the purpose of the clauses used by the defendants’ UM coverage provisions:
[W]e hold that under these contracts, “hit and run vehicle” means a vehicle that hits another vehicle and the driver leaves the scene of the accident—either without stopping or at any time before an exchange of information can take place.
Under the Court’s reasoning, the mere fact that the striking car stops at the scene does not automatically keep it from being a “hit-and-run vehicle,” if circumstances still prevented the other driver from identifying the offending vehicle:
[T]he “run” has to occur before the opportunity to exchange information can take place. And that type of “run” occurs if a vehicle flees without stopping, or if the vehicle stops but leaves before there is an opportunity to exchange information.
Having so described what a “hit-and-run vehicle” is for purposes of Wasik’s claim against Auto Club and Progressive, the Court easily concluded that the striking Explorer in this case was not a “hit-and-run vehicle.” Where the drivers of both cars took the time to discuss the accident together, examine their vehicles for damage, and agree not to contact the police but instead just to go on their way, there clearly was an opportunity to exchange information identifying the offending vehicle and its driver. The trial court’s ruling in favor of the insurer defendants was thus affirmed. Since the plaintiff declined to pursue an appeal to the Michigan Supreme Court, the published opinion of the Court of Appeals now stands as the controlling authority on this issue.