Wind Shear as Physical Contact
November 23, 2015
The automobile insurer brought an action against the insured motorcyclist for a declaratory judgment that wind shear from a passing truck did not satisfy the physical contact requirement for an accident caused by a hit-and-run vehicle. This case is State Farm Mutual Automobile Insurance Company v. Benedetto, 32 N.E.3d 732 (2015).
The insured was riding on his motorcycle with his wife when a semi approached from the opposite direction. The insured claimed that the semi crossed over into his lane of travel and he swerved to the right to avoid any physical contact. The insured then said that the motorcycle was propelled off the road by the wind shear of the passing semi, throwing the insured and his wife into a ditch sustaining injuries. The semi failed to stop and its owner and operator remains unknown.
The insured filed for uninsured motorist (UM) benefits and the insurer filed a declaratory judgment action seeking a declaration that the policy did not provide UM coverage in this instance. The trial court entered summary judgment in favor of the insured and this appeal followed.
The Appellate Court of Illinois, First District, noted that the insured claimed the policy was ambiguous as to whether the UM provisions requires physical contact. The insured argued that the alleged ambiguity would allow coverage for what can be described as a miss-and-run accident with the wind shear striking the motorcycle. The insurer countered that the policy language and state law required the uninsured motor vehicle to actually strike the insured vehicle in order for the insured to collect UM benefits.
The appellate court found no ambiguity in the physical contact requirement. The court said that the policy specifically states that the hit-and-run driver must strike the insured, and the dictionary defines “strike” as “to hit in a forceful way or to cause something to hit something in a forceful way.” Thus, said the court, under the plain and ordinary meaning of the word “strike”, either direct or indirect physical contact is required. Accordingly, under Illinois law and the policy itself, the court held that the fact the semi did not hit the motorcycle eliminates the applicability of UM coverage under the policy.
As for the question of whether wind shear constitutes indirect physical contact, the court said that the trial court's conclusion that wind shear constitutes indirect physical contact is, at best, an etymological and jurisprudential leap in logic. Bluntly put, said the court, any contact with air generated by a passing vehicle does not equate to indirect physical contact like a lug nut flying off a hit-and-run vehicle. The wind shear in this incident did not satisfy the requirement for physical contact because, the court decided, no part of the truck actually touched the insured's vehicle. Accordingly, the court ruled that wind shear does not constitute physical contact under the policy or Illinois law.
The judgment of the trial court was reversed and remanded.
Editor's Note: The Appellate Court of Illinois rules that wind shear is not the physical contact necessary to recover UM benefits for an accident caused by a hit-and-run vehicle.