Adamsv.Zajac

Michigan Court of AppealsOct 20, 1981
110 Mich. App. 522 (Mich. Ct. App. 1981)
110 Mich. App. 522313 N.W.2d 347

Docket No. 49929.

Decided October 20, 1981.

Sommers, Schwartz, Silver Schwartz, P.C. (by Jeffrey N. Shillman), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Edgar L. Church, Jr., Assistants Attorney General, for defendant Secretary of State.

Before: D.E. HOLBROOK, JR., P.J., and BRONSON and D.F. WALSH, JJ.



D.E. HOLBROOK, JR., P.J.

Plaintiff commenced this action for wrongful death against defendants Zajac and L.C.L. Transit Company alleging that they were responsible for her husband's death and against the Secretary of State pursuant to the hit-and-run provision of the Michigan Motor Vehicle Accident Claims Act (MVACA). MCL 257.1112; MSA 9.2812. Motions for accelerated judgment and summary judgment were granted in favor of Zajac and L.C.L. Transit Company, respectively. The grant of these motions is not an issue in this appeal. The trial court granted the Secretary of State's motion to dismiss on the grounds that there was no "physical contact" between Adams' vehicle and the unidentified vehicle. It is from this order that plaintiff appeals as of right.

Tommy W. Adams was killed when the truck he was operating went out of control and plunged into a creek after either striking or swerving to avoid striking a truck tire and rim assembly. The tire was between the right and middle lanes on northbound Interstate 75 near Newport. A witness to the accident was driving directly in front of decedent's vehicle. When he came upon the tire, he swerved to the right and avoided the tire. He stated that prior to coming upon the tire he saw a flatbed tractor-trailer parked along the freeway where he first observed the tire. Simultaneous with the accident, the witness observed the flatbed truck pulling away from the scene. Another witness, going southbound, also observed a flatbed tractor-trailer leaving the scene of the accident. The tire and rim assembly was retrieved by the police.

MCL 257.1112; MSA 9.2812 allows the Secretary of State to be sued by any person who would have a cause of action against an unidentified owner or driver of a motor vehicle which causes death of or personal injury to any person. In any action commenced under this act, physical contact between the unidentified vehicle and a vehicle occupied by the claimant is a condition precedent to such action.

The MVACA is remedial in nature and should be liberally construed. Dillon v Secretary of State, 61 Mich. App. 588; 233 N.W.2d 96 (1975), lv den 397 Mich. 812 (1976). One of the purposes of the act is to provide a remedy to the victim of an unidentified hit-and-run driver. Johnson v Secretary of State, 406 Mich. 420; 280 N.W.2d 9 (1979). The physical contact provision is designed to prevent fraudulent claims. The purpose of the language is to reduce the possibility of phantom vehicle claims which result when a motorist who negligently loses control of his own vehicle is able to recover by alleging that an unknown vehicle caused him to lose control. Kersten v DAIIE, 82 Mich. App. 459; 267 N.W.2d 425, lv den 403 Mich. 845 (1978).

Because of the remedial nature of this act, and because the possibility of fraud is minimal, "physical contact" has been given a wider meaning than a strict interpretation would require. Lord v Auto-Owners Ins Co, 22 Mich. App. 669; 177 N.W.2d 653 (1970). Physical contact has been construed to include situations where no direct contact occurs. The most common circumstances in which recovery is permitted is when (1) the hit-and-run vehicle strikes a second or intervening vehicle which in turn is propelled into plaintiff's vehicle, Lord, supra, and (2) an object is propelled into the plaintiff's vehicle by another vehicle which does not stop. Barfield v Ins Co of North America, 59 Tenn. App. 631; 443 S.W.2d 482 (1968), Allied Fidelity Ins Co v Lamb, ___ Ind. App. ___; 361 N.E.2d 174 (1977). Contra, Smith v Great American Ins Co, 29 N.Y.2d 116 ; 324 N.Y.S.2d 15; 272 N.E.2d 528 (1971). Courts have found that the purpose and intent of the physical contact requirement is served by accepting as sufficient a substantial but indirect physical contact with the claimant's vehicle, although not of the exact nature described in the statute.

It appears to us that accepting as sufficient a substantial physical contact between a part of the unidentified vehicle itself and the complainant's vehicle, as in the present case, involves considerably less of a departure from the act than was permitted in Lord, supra.

We would have no difficulty with this case were it not for the holding in Kersten, supra. That case involved a hit-and-run claim based on facts similar to those in the instant case. After an extensive case analysis, a panel of this Court found that "[r]ecovery is permitted where the evidence discloses a direct causal connection between the hit-and-run vehicle and plaintiff's vehicle and which connection carries through to the plaintiff's vehicle by a continuous and contemporaneously transmitted force from the hit-and-run vehicle. * * * Further, in such cases there is convincing evidence of a hit-and-run vehicle." Kersten, supra, 471. The Court held that the chain of physical contact between the tire and rim assembly and the Kersten car was too attenuated and too inferentially established to satisfy the physical contact requirement of the statute and policy.

We find nothing in the statute requiring a continuous and contemporaneously transmitted force from the hit-and-run vehicle. We could infer such a requirement perhaps as a concomitant of the required physical contact. However, we hold that the "physical contact" takes place when a vehicle or an integral part of it comes into physical contact with another vehicle. Whether the part is still attached or comes to rest after being detached from the vehicle makes little difference in principle, although in the latter case it might present some difficulties, as are present here, in carrying the burden of proof. In the final analysis, in every accident it is always a part of the vehicle which comes in contact with another vehicle, never the whole vehicle.

We do not subvert the legislative purpose of deterring fictitious claims easily contrived in the absence of physical contact. Our holding requires some type of physical contact. Recovery should not be granted where the claimant is unable to show the existence of any type of physical contact. But we question the need for a super-statutory test over and above that set forth in the statute itself, which is the result of applying Kersten. We give the language in the statute a broad construction, but it is a construction of which the words are fitting and should be adopted. This meaning of physical contact exemplifies the liberal construction required of a remedial act.

In addition, the panel of this Court in Kersten required convincing evidence of a hit-and-run vehicle. Recovery would be denied where there is only an inference of a hit-and-run vehicle. The law is replete with inferences drawn from other facts. "Human experience tells us that often a state of facts is likely to exist although it cannot be directly proven. * * * [An inference] eases the proponent's burden of production on the ultimate fact and allows a meritorious case to be established on proof of facts which justify an inference of the ultimate fact." Johnson, supra, 441.

We are of the opinion that the burden of producing evidence should be allocated to serve the special policy considerations of compensating the victims of unidentified hit-and-run drivers implicit in the MVACA. Therefore, we hold that inferential evidence rather than objective evidence is enough to establish a link between a disappearing vehicle and plaintiff's vehicle. The inference drawn from the evidence of the tire and rim assembly can be weighed with the circumstances in deciding whether another vehicle was involved.

In summary, because a purpose of the MVACA is to provide a remedy to victims of hit-and-run vehicles and because there is the absence of possible fraud, we find that the indirect physical contact in this case satisfies the condition precedent in the MVACA. However, the trier of fact ultimately decides whether physical contact did, in fact, occur and, if so, whether the contact was with a part of a hit-and-run vehicle. Accordingly, we reverse the trial court's order and remand for trial.

Reversed and remanded.