| Q&A of the Week |
Pack-out of Contents
A Virginia subscriber recently asked the following question:
Would pack-out and storage of contents for a covered water loss to a dwelling be accounted for under the Coverage A limit or the Coverage C limit? This is a HO-3 policy.
ANSWER: Since the contents are being removed as part of damage to the structure itself, then the removal of contents would be part of coverage A. If the contents themselves were damaged then it can be seen as part of coverage C, but if the sofa needs to be moved to get it out of a soggy room so the room can be cleaned and aired out, it is coverage A. |
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| Litigation Watch |
Direct Physical Contact Requirement for Uninsured Motorists Coverage
The insurer appeals an order denying its motion for partial summary disposition. This case is McJimpson v. Auto Club Group Insurance Company, 2016 WL 2759129.
This action arises out of injuries sustained by Karen McJimpson when a piece of metal flew off an unidentified 18-wheeler semi-truck and struck her car. The police that responded to the accident reported that an arc-shaped piece of silvery metal about half the size of the windshield on McJimpson's car was the object that hit the car. McJimpson suffered numerous cuts and bruises, a tear in her left shoulder, and strains and sprains in her back and neck.
Since the semi-truck did not stop and the driver was not identified, McJimpson made a claim for uninsured motorists (UM) benefits under her insurance policy that was issued by Auto Club Group. The insurer denied coverage on the grounds that the insured did not meet the requirements of the UM provision because she was struck by an object propelled by or from the unidentified vehicle and not by the vehicle itself.
McJimpson sued and the trial court ruled in favor of the insured. The insurer appealed.
The Court of Appeals of Michigan noted that over the years, it had considered various linguistic formulations of UM coverage. Some policies reviewed by the court were written broadly and would provide coverage in situations such as the McJimpson case. Other policies were written more narrowly and would require actual physical contact between the vehicles. The court said that it had decided in these cases to construe the physical contact requirement broadly to include indirect physical contact as long as a substantial physical nexus between the disappearing vehicle and the object cast off or struck is established by the proofs. The court explained that a substantial physical nexus between the unidentified vehicle and the object causing the injury to the insured has been found where the object in question was a piece of, or projected by the unidentified vehicle, but not where the object originates from an occupant of an unidentified vehicle.
The court went on to state that the UM policy language in this instance was written more narrowly, providing coverage only where the unidentified vehicle makes direct contact with the insured or her vehicle. The language does not refer to propelled objects nor does it use the unmodified term "physical contact", thereby implicating the substantial physical nexus test. By requiring direct contact with the unidentified vehicle, the policy here limits UM coverage to cases where the unidentified vehicle itself strikes an insured person or vehicle. The court noted that that requirement is not met in this instance.
The appeals court ruled that the vehicles did not make direct contact, the policy language required direct physical contact between the hit and run vehicle and the insured, and so, the trial court erred in denying the insurer's motion to dismiss. The trial court ruling was reversed and remanded.
Editor's Note: The Court of Appeals of Michigan rules that the UM policy language requiring direct physical contact between the unidentified vehicle and the insured is not met when the insured was struck by an object that was propelled through the air, and not by the unidentified vehicle itself.
The court did list several cases it reviewed in the past to back up its opinion that the physical contact provision in UM coverage may be satisfied even though there is no direct contact between the disappearing vehicle and the insured, providing there is a sufficient causal connection between the disappearing vehicle and the striking object. However, in this instance, the actual policy language did require direct contact and that did not happen. |
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| Fraud of the Week |
Staged Accident Fraud – Louisiana
AMOUNT: Unknown
Seven people in Louisiana have been arrested for staging three separate accidents and filing fraudulent insurance claims over a five-month period. They were also involved in a "jump in" scheme some months later, where a person claims to have been in a vehicle at the time of the accident but actually was not. They were booked on multiple counts of automobile insurance fraud, felony theft, and filing or maintaining false public records.
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