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

We editors at FC&S react much the same way. When asked to view the pedestrian-hit question from a less common perspective, we had to read it twice. An FC&S subscriber asked, “If the insured vehicle strikes a pedestrian, would the damage to the vehicle be covered by collision or 'other than 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 striking vehicle. This was a new one for me, so I looked to the law for guidance. What I found was a dearth of case law relating to this specific scenario, though the few decisions that do exist seem to lean quite comfortably in one direction. One of those is McKay v. State Farm Mutual Automobile Insurance Co., 933 F. Supp 635, (S.D.Tex., 1995).

Drunken Darting

In McKay, the plaintiff insured brought multiple causes of action against her automobile insurer that arose from its refusal to pay for damage to her car caused when an intoxicated pedestrian ran into the side of her Chevy Blazer on the freeway.

Although the driver of the Blazer had swerved in an attempt to avoid hitting the drunken darter, nonetheless the man and the vehicle collided. The man was subsequently run over by two other vehicles, and, unsurprisingly, suffered a far worse fate than the SUV. Still, the vehicle was significantly damaged and needed some major repairs.

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

The defendant insurer disagreed, maintaining that under the terms of the policy and the law of the state, the insured did not have collision coverage; the accident was a collision; and thus the insured should have no coverage. In language very much the industry standard, collision was defined in the insured's policy as “the upset, or collision with another object of your covered auto.” With its own take on the meaning of the term, the state Supreme Court had adopted a definition of collision as “the meeting and mutual striking or clashing of two moving bodies or of a moving body with a stationary one.”

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

The court was not persuaded. Rather, it agreed with the insurer that a human being is, in fact, an “object.” Relying on supporting case law precedent, the court refused to accept the insured's argument that this was not a collision because there was no object involved.

The court also pointed out that Black's Law Dictionary defines an animal as a “non-human, animate being that is endowed with the power of voluntary motion.” Further, the court stated that the word “animal” had been defined in case law to mean “animal life other than man.” Therefore, in the court's eyes, partying though he might have 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 are not in most standard form auto policies today. Typically when a term in an insurance policy is not defined, the term is to be given the meaning an “ordinary person” would apply. So we should first ask if, to an ordinary person, a person is an object? I am not so certain. I've been the object of one's affection and I've been objectified, yet I hesitate to resign myself to a mere object alone. I bet if I were to inform Joe Smith that he, too, is no less object than is, say, a mailbox, he would likely disagree as well.

But would an ordinary person consider a human being an animal? There are many perfectly sensible people who believe humans should be classified as animals. Philosophical, religious, psychological, and spiritual implications aside, many people believe humans are a type of animal, if only because it is easier to accurately identify and classify our anatomy and physiology. Moreover, etymologically speaking, 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, the requisite ambiguity in favor of coverage. It is well-settled law that, when there is ambiguity in a policy and coverage could reasonably go either way, the insured is supposed to get the benefit of coverage.

Nevertheless I must concede that, in the eyes of the law, the word “animal” still denotes, “all animal life other than humans and signifies 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 the cognizance or scrutiny of the senses, especially anything that is tangible or visible.” (Black's Law Dictionary) Until and unless courts rule otherwise on the subject, when it comes to pedestrian hits and the ubiquitous comprehensive-versus-collision debate, we may be, in fact, smarter than mules but we are no less dumb than rocks.

Special Reports /

When Man and Machine Collide

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