Utter the phrase, “pedestrian hit” to most adjusters, and itwill conjure up thoughts of hospital bills, assessments ofnegligence, and injury settlements — to name but a few.

We editors at FC&S react much the same way. Whenasked to view the pedestrian-hit question from a less commonperspective, we had to read it twice. An FC&Ssubscriber asked, “If the insured vehicle strikes a pedestrian,would the damage to the vehicle be covered by collision or 'otherthan collision' under the insured's auto policy?”

So here we were not to be concerned at all about the pedestrian(at least in terms of insurance coverage — we are not heartless),but rather solely about the damage inflicted by the strikingvehicle. This was a new one for me, so I looked to the law forguidance. What I found was a dearth of case law relating to thisspecific scenario, though the few decisions that do exist seem tolean quite comfortably in one direction. One of those is McKayv. State Farm Mutual Automobile Insurance Co., 933 F. Supp635, (S.D.Tex., 1995).

Drunken Darting

In McKay, the plaintiff insured brought multiple causesof action against her automobile insurer that arose from itsrefusal to pay for damage to her car caused when an intoxicatedpedestrian ran into the side of her Chevy Blazer on thefreeway.

Although the driver of the Blazer had swerved in an attempt toavoid hitting the drunken darter, nonetheless the man and thevehicle collided. The man was subsequently run over by two othervehicles, and, unsurprisingly, suffered a far worse fate than theSUV. Still, the vehicle was significantly damaged and needed somemajor repairs.

The insured looked to her auto policy, which containedcomprehensive property coverage only. She contended that because itwas a man who ran into the side of the vehicle — instead of anobject — it was not a collision under the definition of the policy.Therefore, she argued, the policy should unambiguously provide forcoverage because it paid for direct and accidental loss to thedamaged vehicle.

The defendant insurer disagreed, maintaining that under theterms of the policy and the law of the state, the insured did nothave collision coverage; the accident was a collision; and thus theinsured should have no coverage. In language very much the industrystandard, collision was defined in the insured's policy as “theupset, or collision with another object of your covered auto.” Withits own take on the meaning of the term, the state Supreme Courthad adopted a definition of collision as “the meeting and mutualstriking or clashing of two moving bodies or of a moving body witha stationary one.”

Looking for coverage wherever it may be, the insuredalternatively argued that there was coverage under the policybecause the loss had been caused by “contact with a bird oranimal,” and thus it fell within the policy's comprehensivecoverage. After all, argued the insured, if a deer ran into theside of her vehicle, then the loss would be covered. But why wouldit be any different with a human “animal”?

The court was not persuaded. Rather, it agreed with the insurerthat a human being is, in fact, an “object.” Relying on supportingcase law precedent, the court refused to accept the insured'sargument that this was not a collision because there was no objectinvolved.

The court also pointed out that Black's Law Dictionary definesan animal as a “non-human, animate being that is endowed with thepower of voluntary motion.” Further, the court stated that the word“animal” had been defined in case law to mean “animal life otherthan man.” Therefore, in the court's eyes, partying though he mighthave been, this pedestrian was no animal.

Agree to Disagree

I cannot say I necessarily agree with the court. Neither“object,” nor “animal,” was defined in the policy, just as they arenot in most standard form auto policies today. Typically when aterm in an insurance policy is not defined, the term is to be giventhe meaning an “ordinary person” would apply. So we should firstask if, to an ordinary person, a person is an object? I am not socertain. I've been the object of one's affection and I've beenobjectified, yet I hesitate to resign myself to a mere objectalone. I bet if I were to inform Joe Smith that he, too, is no lessobject than is, say, a mailbox, he would likely disagree aswell.

But would an ordinary person consider a human being an animal?There are many perfectly sensible people who believe humans shouldbe classified as animals. Philosophical, religious, psychological,and spiritual implications aside, many people believe humans are atype of animal, if only because it is easier to accurately identifyand classify our anatomy and physiology. Moreover, etymologicallyspeaking, the word “animal” comprehends all living creatures,“whether brutish or human.”

Whether you agree or disagree with the arguments and reasoning,it seems they should be enough to create, at a minimum, therequisite ambiguity in favor of coverage. It is well-settled lawthat, when there is ambiguity in a policy and coverage couldreasonably go either way, the insured is supposed to get thebenefit of coverage.

Nevertheless I must concede that, in the eyes of the law, theword “animal” still denotes, “all animal life other than humans andsignifies an inferior or irrational sentient being, generally,though not necessarily, possessed of the power of self-motion.”(Am., Jur. 2d) and that an object is “anything that comes with thecognizance or scrutiny of the senses, especially anything that istangible or visible.” (Black's Law Dictionary) Until and unlesscourts rule otherwise on the subject, when it comes to pedestrianhits and the ubiquitous comprehensive-versus-collision debate, wemay be, in fact, smarter than mules but we are no less dumb thanrocks.