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Docket Number

Docket No. 49929.

Attorney(S)

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.

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Smart Summary

Adams v. Zajac, Docket No. 49929 (Mich. Ct. App. Oct. 20, 1981)

Factual and Procedural Background

Plaintiff commenced this action for wrongful death against defendants Zajac and L.C.L. Transit Company and against the Secretary of State under 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; those rulings are not at issue on 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. Plaintiff appealed as of right.

On the facts alleged in the opinion: decedent 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 located between lanes on northbound Interstate 75. A witness driving directly in front of the decedent swerved to avoid the tire and observed a flatbed tractor-trailer parked where the tire was first seen; that witness also observed the flatbed truck pulling away from the scene simultaneous with the accident. Another witness going southbound observed a flatbed tractor-trailer leaving the scene. The tire and rim assembly was recovered by police.

Legal Issues Presented

Whether the MVACA's condition precedent of "physical contact" between the unidentified vehicle and the claimant's vehicle is satisfied when an integral part (here, a tire and rim assembly) of the unidentified vehicle is found at the scene, even if that part is detached.
Whether the court may rely on inferential evidence (rather than direct, objective evidence) to establish a sufficient link between a disappearing vehicle and the claimant's vehicle under the MVACA.
Whether the stricter test articulated in Kersten v DAIIE (requiring a "continuous and contemporaneously transmitted force" and "convincing evidence" of a hit-and-run vehicle) is a required interpretation of the MVACA's physical-contact condition precedent.

Arguments of the Parties

Defendant Secretary of State

The Secretary of State moved to dismiss on the ground that there was no "physical contact" between Adams' vehicle and the unidentified vehicle, and thus the condition precedent of MCL 257.1112; MSA 9.2812 was not satisfied.

Plaintiff

The opinion does not contain a detailed account of the plaintiff's legal arguments in the trial court or on appeal beyond the fact that plaintiff appealed the dismissal and sought to have the physical-contact requirement satisfied by the facts surrounding the tire and rim assembly and the observations of witnesses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dillon v Secretary of State, 61 Mich. App. 588; 233 N.W.2d 96 (1975), lv den 397 Mich. 812 (1976)	That the MVACA is remedial in nature and should be liberally construed.	Quoted to support giving the MVACA a liberal construction in favor of victims of unidentified hit-and-run drivers.
Johnson v Secretary of State, 406 Mich. 420; 280 N.W.2d 9 (1979)	That one purpose of the MVACA is to provide a remedy to victims of unidentified hit-and-run drivers; also cited for the proposition that inferences may be drawn from other facts.	Used to justify compensating victims and to support reliance on inferential evidence to establish the involvement of a hit-and-run vehicle.
Kersten v DAIIE, 82 Mich. App. 459; 267 N.W.2d 425, lv den 403 Mich. 845 (1978)	Articulated a test that recovery is permitted only where there is a "direct causal connection" and a "continuous and contemporaneously transmitted force" from the hit-and-run vehicle to the plaintiff's vehicle, and required "convincing evidence" of a hit-and-run vehicle.	The court identified Kersten as imposing a stricter, "super-statutory" test and explained that it would not adopt Kersten's continuous-force and convincing-evidence requirements as necessary under the statute.
Lord v Auto-Owners Ins Co, 22 Mich. App. 669; 177 N.W.2d 653 (1970)	That "physical contact" has been given a wider meaning than a strict interpretation and may include situations where no direct contact occurs (e.g., where a hit-and-run vehicle strikes an intervening vehicle which is propelled into the plaintiff's vehicle).	Cited as authority for a broader meaning of "physical contact" and to note that accepting contact between a part of the unidentified vehicle and the complainant's vehicle would be a smaller departure from Lord's approach.
Barfield v Ins Co of North America, 59 Tenn. App. 631; 443 S.W.2d 482 (1968)	Example of permitting recovery when an object is propelled into the plaintiff's vehicle by another vehicle that does not stop.	Cited as an example of circumstances in which indirect physical contact has been found sufficient to permit recovery.
Allied Fidelity Ins Co v Lamb, ___ Ind. App. ___; 361 N.E.2d 174 (1977)	Another authority allowing recovery where an object is propelled into the plaintiff's vehicle by a vehicle that does not stop.	Used alongside Barfield to illustrate accepted forms of indirect contact permitting recovery.
Smith v Great American Ins Co, 29 N.Y.2d 116; 324 N.Y.S.2d 15; 272 N.E.2d 528 (1971)	Represented a contrary authority (noted as "Contra").	Cited to acknowledge that other courts have taken a different approach; the opinion does not adopt Smith's contrary position.

Court's Reasoning and Analysis

The court began from the premise that the MVACA is remedial and should be liberally construed to provide remedies to victims of unidentified hit-and-run drivers and to minimize the possibility of fraud. It acknowledged the statutory condition precedent that, in any action under the MVACA, "physical contact" between the unidentified vehicle and a vehicle occupied by the claimant is required.

The court reviewed prior authorities that had broadened the meaning of "physical contact" to include certain indirect contacts (e.g., where a hit-and-run vehicle strikes an intervening vehicle that is then propelled into the claimant's vehicle, or where an object is propelled into the claimant's vehicle by another vehicle). It then confronted Kersten, which had articulated a stricter requirement: a direct causal connection that is continuous and contemporaneously transmitted from the hit-and-run vehicle to the plaintiff's vehicle, supported by "convincing evidence" of a hit-and-run vehicle.

The court rejected Kersten's imposition of a continuous/contemporaneous-force requirement and characterized that test as a "super-statutory" addition to the statutory language. Instead, the court held that "physical contact" occurs when a vehicle or an integral part of it comes into physical contact with another vehicle, whether the part remains attached or becomes detached and comes to rest. The court acknowledged that detached parts may present evidentiary difficulties but emphasized that the statutory words can and should be given a broad construction consistent with the remedial purpose of the MVACA.

Regarding proof, the court held that inferential evidence — rather than only objective, direct evidence — is sufficient to establish a link between a disappearing vehicle and the claimant's vehicle. The court cited Johnson for the proposition that inferences drawn from other facts are permissible and appropriate when human experience supports such inferences. The court reasoned that allocating the burden of producing evidence to permit inferential proof serves the policy of compensating victims of unidentified hit-and-run drivers.

Applying these principles to the facts before it, the court concluded that the indirect physical contact present (the tire and rim assembly at the scene with witness observations of a flatbed leaving) could satisfy the MVACA's physical-contact condition precedent, but that the ultimate determination whether physical contact occurred and whether the contact was with a part of a hit-and-run vehicle is for the trier of fact.

Holding and Implications

Holding: The court reversed the trial court's order dismissing the claim against the Secretary of State and remanded the case for trial. The opinion concludes with the single-line disposition: Reversed and remanded.

Implications:

The court adopts a broader interpretation of "physical contact" under MCL 257.1112; MSA 9.2812 to include contact with an integral part of an unidentified vehicle (even if detached), subject to evidentiary proof at trial.
The court rejects the stricter Kersten test requiring a continuous and contemporaneously transmitted force and the requirement of "convincing evidence" as a separate, super-statutory hurdle.
The court holds that inferential evidence is sufficient to establish a link between a disappearing vehicle and the claimant's vehicle under the MVACA; the trier of fact must weigh such evidence to decide whether physical contact occurred and whether the contact was with a part of a hit-and-run vehicle.
The direct effect of the decision is that plaintiff's claim against the Secretary of State was reinstated and remanded for trial; the opinion clarifies the court's interpretation of "physical contact" for future cases under the MVACA.

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ADAMS v ZAJAC

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.

ADAMS v. ZAJAC