No. 84-510 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JOHN McGLYNN and GORDON TRACY, 

Plaintiffs, 

SAFECO INSURANCE COMPANIES OF 

AP.ERICA, 

Defendants. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Plaintiffs: 

Johnson, Skakles & Kebe; David Wing argued, Anaconda, 

Montana 

Knight, Dahood, McLean & Everett; Edward Beaudette 

argued, Anaconda, Montana 

Keller, Reynolds, Drake, Sternhagen & Johnson; P. 

Keith Keller, Helena, B4ontana 

For Defendants: 

Williams Law Firm; Richard Ranney argued, Missoula, 

Montana 

Filed: 

Submitted: May 16, 1385 

Gecided: June 19, 1985 

- Clerk 
Mr. Justice IfiTilliarn E. Hunt, Sr., delivered the Opinion of 

the Court. 

The United States District Court for the District of 

Montana, Butte Division, W. D. Murray, J., certified the 

following question to this Court for resolution: 

"May an insurance company issuing a policy of 

automobile liability insurance in the State of 

Montana require physical contact of a vehicle 

driven by an unknown driver with that of the 

insured, as a precondition of coverage under the 

uninsured motorist provision of the policy required 

by MCA, section 33-23-201?" 

This is a case of first impression in Montana. After 

due deliberation, we answer the question in the negative. 

On October 19, 1982, John McGlynn was riding as a 

passenger in a vehicle driven by Gordon Tracy. The vehicle 

was heading north on Interstate Highway 15, approximately 17 

miles north of Butte, Montana. As their vehicle approached a 

bridge, another vehicle approached from the opposite 

direction. Just when their vehicle was a short distance from 

the bridge, the other vehicle crossed over the centerline 

into their lane of travel. In order to avoid a collision, 

Tracy swerved his vehicle, and. in so doing, squarely struck 

the bridge abutment. As a result, McGlynn received serious 

injury, including loss of hearing, and inability to pursue 

the employment in which he had engaged prior to the accident. 

It is undisputed there was no physical contact between 

the two vehicles. The other vehicle stopped. briefly after 

the accident, but then continued on, and the identity of the 

driver or the vehicle remains unknown. Tracy carried 

insurance through Safeco Insurance Companies of America. 

Following the above-described. events, McGlynn filed a 

negligence action against Tracy, and an action against 
Safeco, which listed Tracy as its insured on a policy of 

automobile liability insurance. The claim aga-inst Safeco was 

based on the tortious conduct of the driver who crossed the 

centerline and McGlynn sought benefits under the policy's 

uninsured motorist provisions. 

Safeco answered and filed an affirmative defense. Tracy 

filed a cross-claim against Safeco for uninsured motorist 

benefits. On November 30, 1983, the case was removed to 

Federal District Court in Butte on the ground of diversity of 

citizenship. Safeco then moved to dismiss by summary 

judgment, on the basis that the policy contains a clause 

which defines an uninsured motorist as a hit-and-run 

automobile, and that the accident must arise "out of physical 

contact of such automobile with the insured or with an 

automobile which the insured is occupying." Certification to 

this Court followed. 

Joined as plaintiffs in the cross-claim against Safeco, 

McGlynn and Tracy contend that the physical contact 

requirement of the uninsured motorist provisions asserted by 

Safeco is repugnant to our uninsured motorist statute, S 

33-23-201, MCA, and to public policy, and that that 

requirement is therefore null and void. 

They further contend that proof of absence of liability 

insurance of the unidentified motorist is not a condition 

precedent to the recovery of benefits. A separate discussion 

of this subissue is unnecessary because of the language 

contained in the policy itself. 

Safeco takes the position that the statute protects only 

those insureds who are "legally entitled to recover" from 

uninsured motor vehicle operators, and that the statute 
should not be broadened to include unknown and unidentified 

motor vehicle operators as well. 

Further, it asserts that if the legislature had meant to 

extend coverage to situations where there was no physical 

contact it could have so provided, and that it is not the 

role of the Supreme Court to create new law. 

Our uninsured motorist statute, 5 33-23-201, MCA, 

contains no prerequisite of physical contact, and makes no 

reference to hit-and-run drivers: 

"Motor vehicle liabilit olicies to include 

uninsured motorist covers$--%ejection insured.. 

(1 No automobile liability or motor vehicle 

I-iability policy insuring against loss resulting 

from liability imposed by law for bodily injury or 

death suffered by any person arising out of the 

ownership, maintenance, or use of a motor vehicle 

shall be delivered. or issued for delivery in this 

state, with respect to any motor vehicle registered 

or principally garaged in this state, unless 

coverage is provided therein or supplemental 

thereto, in limits for bodily injury or death set 

forth in 61-6-103, under provisions filed with and 

approved by the commissioner, for the protection of 

persons insured thereunder who are legally entitled 

to recover damages from owners or operators of 

uninsured motor vehicles because of bodily injury, 

sickness, or disease, including death, resulting 

therefrom. 

" (2) The named insured shall have the right to 

reject such coverage. Unless the named insured 

requests such coverage in writing, such coverage 

need not be provided in or supplemental to a 

renewa.1 pol.icy where the named insured had rejected 

the coverage in connection with the policy 

previousl-y issued to him by the same insurer." 

Safeco contends its policy is in conformity with 

Montana's uninsured motorist statute, and that it extends 

coverage in words similar to the statute: 

"To pay all sums which the insured or his legal 

representative shall be legally entitled to recover 

- as damages -- from the owner or operator of an 

uninsured motor vehicle because of bodily injury . . . " Coverage G, at 4 of policy. (Emphasis 

added. ) 
The uninsured motorist definition in the Safeco policy 

provides : 

"'uninsured motor vehicle' includes a trailer of 

any type and means: 

"(a) an automobile or trailer with respect to the 

ownership, maintenance or use of which there is, in 

at least the amounts specified by the financial 

responsibility law of the state in which the 

insured automobile is principally garaged, no 

bodily injury liability bond or insura-nce policy 

applicable at the time of the accident with respect 

to any person or organization legally responsible 

for the use of such automobile, or with respect to 

which there is a bodily injury liability bond or 

insurance policy applicable at the time of the 

accident but the company writing the same denies 

coverage thereund.er or is or becomes insolvent; or 

"(b) a hit-and-run automobile; 

"'hit-and-run automobile' means an automobile which 

causes bodily injury to an insured arising out of 

physical contact - of - such automobile - with - the 

insured --- or with an automobile which - the insured is 

occupying at the time of the accident, provided: 

(1) there cannot be ascertained the identity of 

either the operator or the owner of such 'hit-andrun automobile ' ; (2) the insured or someone on his 

behalf shall have reported the accident within 24 

hours to a police, peace or judicial officer or to 

the commissioner of motor vehicles, and shall have 

filed with SAFECO within 30 days thereafter a 

statement under oath that the insured or his legal 

representative has a cause or causes of action 

arising out of such accident for damages against a 

person or persons whose identity is 

unascertainable, and setting forth the facts in 

support thereof; and (3) at SAFECO's request, the 

insured or his legal representative makes available 

for inspection the automobile which the insured was 

occupying at the time of the accident." (Emphasis 

added. ) 

There is a variety of positions in jurisdictions around 

the country concerning whether coverage should or should not 

attach. The most recent opinion collecting and analyzing 

these positions derives from our sister state of Idaho. In 

Hammon v. Farmers Insurance Group (Idaho App. 19841, 692 p.2d 

1202, that court ruled that the policy requirement of 

physical contact was void as contrary to statute. We note 
Idaho's uninsured motorist statute contains language 

strikingly similar to ours, and in pertinent part, verbatim 

to ours: 

. . . for the protection of persons insured 

thereunder who are legally entitled to recover 

damages from owners or operators of uninsured motor 

vehicles because of bodily injury, sickness or 

disease, including death, resulting therefrom . . ." Hammon, supra, 692 P.2d at 1203. 

We believe that reading the statute as extending 

coverage is a very salutary approach, for three reasons. 

First, we must read 5 33-23-201, MCA, in conjunction with 5 

61-6-301, MCA. The latter statute provides mandatory 

liability protection: 

"Required motor vehicle insurance. (1) Every 

owner of a motor vehicle which is resistered a and 

operated in Montana by the owner or with his 

permission shall continuously provide insurance 

against loss resulting from liability imposed by 

law for bodily injury or death or damage to 

property suffered by any person caused by 

maintenance or use of a motor vehicle . . ." 

Since the purpose of our uninsured motorist statute is to 

afford the same protection to a person injured by an 

uninsured motorist as he would have had if the negligent 

motorist had carried liability insurance, it would defeat the 

purpose of the statute to allow insurance policies to require 

physical impact before coverage is extended to the insured. 

Second, there has been no flood of fraudulent claims 

with so-called "phantom vehicles. I' Certainly, invalid 

allegations of hit-and-run vehicles are a concern. The point 

was well-covered in Clark v. Regent Ins. Co. (S.D. 1978), 270 

"The contention that the physical contact 

requirement prevents fraudulent claims appears to 

be of dubious merit. We have not found any signs 

of a flood of 'phantom vehicle' claims in the 

states rejecting the requirement, nor have the 

legislatures of those states found it necessary to 

enact a physical contact requirement to their 
uninsured motorist statutes. We perceive no sound 

reason to deprive an injured insured of recompense 

for a valid claim to prevent the 'flood of 

fraud.ulent claims' which has not materialized in 

other states." 

The burden of proof is upon the claimant to show the accident 

was caused by an unidentified. driver, but recovery should not 

be denied simply because there was no physical contact with 

the offending car. 

That brings us to the third reason coverage should 

attach--the distinction between "hit-and-run" and 

"cause-and-run." Again, the Clark opinion provides insight: 

"The fallacy in interpreting the phrase from the 

literal meaning of the word 'hit' lies in the fact 

that it ignores the commonly accepted meaning of 

the entire phrase. 'In a majority of 

jurisdictions, statutes have been enacted imposing 

a duty upon an individual operating or in control 

of a motor vehicle involved in an accident causing 

personal injury or property damage, to stop, give 

certain information, and to render aid to those who 

have been injured.' . . . "The term 'hit-and-run' is a baseball colloquialism 

which was used to describe violations of the motor 

vehicle code requirement that a driver involved in 

an accident must stop, render aid and leave his 

identification as required by SDCL 32-34-3 to 

32-34-9. Although the term 'hit-and-run' is not 

used in the body of those statutes, the compilers 

have consistently used it in the captions, and this 

court has referred to them as 'hit-and-run' 

statutes (see State v. Minkel, S.D., 230 N.W.2d 233 

(1975)) even thouTh there is no statutory 

requirement of a physical contact, only tha.t the 

automobile be 'involved in an accident.' It 

appea.rs that it was the legislature's intention in 

using the term 'hit-and-run' in SDCL 58-11-9 to 

refer to any motorists involved in an accident who 

failed to comply with SDCL 32-34-3 through 32-34-9, 

without a requirement of physical contact." 270 

N.W.2d at 31. 

We agree. In Sullivan v. Doe (1972), 159 Mont. 50, 60, 495 

P.2d 193, 198, we ruled: 

"The basic purpose of this statute is obvious--to 

provide protection for the automobile insurance 

policyholder a.gainst the risk of inadequate 

compensation for injuries or death caused &- the 

negligence of financially irresponsible motorists." 

(Emphasis added.) 
Concededly, the issue giving rise to that statement in 

Sullivan was whether workers' compensation benefits could be 

offset against uninsured motorist coverage, not - whether 

"hit-and-run" could be or should be synonymous with 

"cause-and-run." It should be noted also that Sullivan did 

involve a head-on collision, but nothing in the opinion 

suggested recovery turned on a physical impact. At the same 

time, lack of statutory mention of "hit-and-run" or "physical 

contact" is consistent with a result finding liability caused 

the negligence of a financially irresponsible motorist. 

In the present case, McGlynn was occupying the vehicle 

Tracy was driving. Tracy swerved in an attempt to extricate 

himself from the collision that was imminent. His 

alternatives were limited: either maintain his course into a 

head-on collision, or swerve in an attempt to avoid such a 

collision. One case discussed those "alternatives." In Webb 

v. United States Automobile Ass'n. (Pa. Super. 1974), 323 

A.2d 737, 743, it was noted: 

"If the legislature intended to 'provide protection 

against innocent victims of irresponsible drivers,' 

(Citations omitted) it could not also intend. that 

the motorist faced with the decision whether to 

collide with another vehicle or to av0i.d it should 

choose to collide or else lose his protection." 

The problem was also the subject of a state bar journal 

article. In 55 I11.Bar J. 143, 147 (1966): 

"An alert, athletic pedestrian who barely manages 

to avoid contact with such a car by leaping through 

a plate glass window receives the unkindest cuts of 

all for his efforts, but cannot qualify. Snubbed, 

too, is the driver who miraculously manages to 

steer his car off the highway and thus avoid a 

col-lision with an oncoming vehicle traveling in the 

wrong lane, but in so doing effects a rather abrupt 

stop against an unyielding bridge abutment." 

That is exactly Tracy's plight. His injuries were caused & 

an unknown or uninsured motorist. 
From a policy standpoint, construction of statutes is a 

role embraced uniquely by the court system. The Supreme 

Court of Kansas recently reviewed a wealth of ca.ses which 

construed their state's uninsured motorist statute, and 

concluded that the purpose of the statute, and the clear 

legislative intent was to expand insurance protection to the 

public who use the streets and highways. Simpson v. Farmers 

Ins. Co., Inc. (Kan. 1979), 592 P.2d 445, 450. 

To allow Safeco to interpret our statute as to deny 

coverage would seem to limit or restrict coverage rather than 

to expand it. The Hammon case, supra, addressed this point 

as well. There, the court noted that even though the State 

Director of Insurance must approve all policies, and often 

approves policies containing physical contact requirements, 

such posture does not render the Director's judgment final as 

to the validity of coverage, especially when that coverage is 

legislatively mandated.. 692 P.2d at 1206. 

For the above reasons, we hold that the physical contact 

requirement of the policy of insurance Safeco provided to 

Tracy, is repugnant to Montana's uninsured motorist statute. 

Our construction of the statute neither expands nor broadens 

the scope of uninsured motorist insurance coverage in 

Montana; it mere1.y clarifies the coverage to which the 

legislature has deemed cl-aimants such as Tracy are legally 

entitled. It is enough for a claimant to show his injuries 

were caused & an uninsured or unidentified motorist, in 

order to come within the protection of 5 33-23-201, MCA. 

/ 
We Concur: / 

/ Justices