United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 00-2669

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Beth R. Throesch, *

*

Appellee, *

*

v. *

*

United States Fidelity and Guaranty *

Company, *

*

Appellant. *

 __________ Appeals from the United States 

District Court for the

 No. 00-2704 Eastern District of Arkansas.

 ___________

Beth R. Throesch, *

*

Appellant, *

*

v. *

*

United States Fidelity and Guaranty *

Company, *

*

Appellee. *

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Submitted: April 11, 2001

Filed: July 9, 2001

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1The Honorable Richard W. Goldberg, Judge, United States Court of

International Trade, sitting by designation.

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Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,1

Judge.

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WOLLMAN, Chief Judge.

United States Fidelity and Guaranty Company (USF&G) appeals from the

district court’s entry of judgment entitling Beth R. Throesch to coverage under her

vehicle’s automobile insurance policy; Throesch cross-appeals. We reverse in part and

affirm in part.

I.

The facts of this case are undisputed. On April 26, 1997, while driving south on

Highway 67 near Pocahontas, Arkansas, Throesch swerved off the road and onto the

shoulder. She subsequently lost control of the vehicle, which overturned, causing her

serious injuries. According to Throesch and two eyewitnesses, Throesch swerved to

successfully avoid colliding with a truck coming from the opposite direction that had

crossed the center line of traffic and entered her lane. The truck’s driver did not stop,

and Throesch was unable to identify him or locate him or the truck.

In relevant part, Throesch’s insurance policy issued by USF&G provides:

PART C – UNINSURED MOTORISTS COVERAGE

. . .

We will pay compensatory damages which an “insured” is legally entitled to

recover from the owner or operator of an “uninsured motor vehicle” . . . .

. . .

“Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
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1. To which no bodily injury liability bond or policy applies at the time of

the accident.

. . .

3. Which is a hit-and-run vehicle whose operator or owner cannot be

identified and which hits:

a. You or any “family member”;

b. A vehicle which you or any “family member” are “occupying”; or

c. “Your covered auto”.

Appellant’s App. at 53. Throesch seeks coverage under provisions 1 and/or 3, which

provide different definitions for the “uninsured motor vehicle” involved in the accident.

USF&G denied Throesch’s request for coverage under provision 3 because the

truck did not hit her or her vehicle, and determined that because Throesch had not

shown that the truck was uninsured, her injuries were not covered under provision 1.

The district court granted summary judgment to USF&G on the hit-and-run

policy provision, concluding that, in this case, it required physical contact between the

vehicles as a condition of coverage. The court subsequently determined, however, that

Arkansas statute section 27-19-503 created a presumption, applicable in this case, that

both the unidentified motorist and the truck he was operating were uninsured.

Accordingly, the court concluded that Throesch’s injuries were covered under the

policy and entered judgment for Throesch. USF&G appeals from the court’s judgment

and ruling on the statutory presumption, and Throesch cross-appeals the court’s grant

of summary judgment on the hit-and-run provision.

II.

“State law controls the construction of insurance policies when a federal court

is exercising diversity jurisdiction.” Bell v. Allstate Life Ins. Co., 160 F.3d 452, 455

(8th Cir. 1998). We review de novo the district court’s determination of state law, id.,
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and its grant of summary judgment. Henerey v. City of St. Charles, 200 F.3d 1128,

1131 (8th Cir. 1999).

A. Arkansas statute section 27-19-503

Arkansas statute section 27-19-503 provides:

Presumption of uninsured.

There shall be a presumption created that a motorist who has failed

to file, or caused to be filed in his behalf, within ninety (90) days of the

date of an accident, a certificate proving he is insured in at least minimum

insurance limits as required by law, is uninsured, and any person alleging

or contending that the motorist is insured shall have the burden of proving

that coverage.

Ark. Code. Ann. § 27-19-503 (Michie 1994). This provision is part of the Motor

Vehicle Safety Responsibility Act, which requires a driver of a vehicle involved in an

accident in Arkansas that resulted in bodily injury to file a report with the Department

of Finance and Administration. See id. at § 27-19-501 (Michie 1994).

USF&G argues that section 27-19-503 does not create a presumption that the

truck itself was uninsured. Thus, USF&G contends, because Throesch has no other

evidence to demonstrate that the truck was uninsured, her claim must fail. USF&G also

argues that even if the section creates such a presumption, it is not applicable here

because section 27-19-503 is part of the statutory scheme for the administration and

regulation of licensing and registration rather than one of the statutes that concerns

uninsured motorist liability. Additionally, USF&G contends that section 27-19-503

violates the Arkansas Constitution.

We agree with USF&G that the plain language of the statute does not create a

presumption that the truck was uninsured. By its own terms, the section’s presumption
2We note that even the background information cited by the district court to

support the vehicle presumption complains only of the difficulty of locating identified

but uninsured motorists and makes no references to vehicles.

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applies only to motorists, not vehicles. The plain language leaves no room for grafting

onto the statute a presumption that any vehicle is uninsured.2

Under Arkansas law, the distinction between an uninsured motorist and the

vehicle he was driving is critical. Arkansas’s uninsurance statutes focus both on

uninsured motorists and uninsured vehicles. See Ark. Code Ann. § 23-89-403 (Michie

1999). A claimant bears the burden of showing that the vehicle and the motorist

involved in an accident were uninsured. Home Ins. Co. v. Harwell, 568 S.W.2d 17, 18

(Ark. 1978) (vehicle); Southern Farm Bureau Cas. Ins. Co. v. Gottsponer, 434 S.W.2d

280, 283 (Ark. 1968) (motorist). For uninsured vehicles, the claimant must specifically

demonstrate that the vehicle is uninsured, not just the driver. Harwell, 568 S.W.2d at

18 (stipulation that driver was uninsured insufficient to show vehicle uninsured);

Southwestern Underwriters Ins. Co. v. Miller, 493 S.W.2d 432, 434 (Ark. 1973)

(statement by driver that he was uninsured insufficient to establish vehicle uninsured).

Therefore, assuming arguendo that section 27-19-503 creates a statutory presumption

that the motorist was uninsured, it does not aid Throesch’s claim because it contains

no mention of uninsured vehicles.

Because Throesch’s attempts to locate either the driver or the truck have been

unsuccessful, she has no evidence to show that the truck was uninsured. Her claim,

therefore, cannot succeed. See id. Accordingly, the district court erred when it

concluded that Throesch could recover under provision 1.
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B. Hit-and-Run Provision

Noting that the Arkansas Supreme Court has upheld against public policy

challenges a hit-and-run provision that provided coverage only for injuries “arising out

of physical contact,” the district court held that Throesch was required to establish that

the on-coming truck made physical contact with her vehicle as a condition of coverage

under her policy.

We agree with the district court that the language of the hit-and-run provision is

unambiguous and that it requires that the uninsured vehicle be one “which hits,” that

is, physically contacts the insured or another vehicle. Cf. Bruner v. USAA Property

and Cas. Ins. Co., 649 So. 2d 584, 585 (La. Ct. App. 1994) (same language, same

holding). The cases cited by Throesch indicate that hit-and-run policy provisions may

encompass “miss-and-run” situations, but they reach that conclusion through either an

interpretation of the term “hit-and-run” in clauses that lack the additional requirement

of “which hits” and thus do not apply in the present case, or through the voiding of a

physical contact requirement through the interpretation of state public policy and state

statutes. See, e.g., Clark v. Regent Ins. Co., 270 N.W.2d 26, 27-31 (S.D. 1978)

(discussing various approaches; voiding contact provision on statutory grounds).

Throesch accordingly turns to public policy arguments. She contends that a

clause like the one in this case, which does not provide coverage for a “near hit” even

when supported by eyewitness accounts, is unconscionable under Arkansas public

policy and does not further the clause’s purported purpose of preventing fraud. As the

district court observed, although the Arkansas Supreme Court has not addressed this

specific argument, it has concluded that a hit-and-run provision that requires physical

contact is valid and does not violate public policy. See Ward v. Consolidated

Underwriters, 535 S.W.2d 830, 832 (Ark. 1976). We agree with the district court that

given this precedent the Arkansas courts are unlikely to find the provision to be

unconscionable or contrary to the public policy of the state. The physical contact
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requirement of the hit-and-run provision of Throesch’s policy is thus enforceable, and

her claim under this provision also fails.

The other arguments raised are either without merit or have been rendered moot

by our disposition of the case. Accordingly, the judgment is affirmed in part and

reversed in part, and the case is remanded to the district court with instructions to enter

judgment in favor of USF&G.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.