November 2024

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Greetings from Kristi Kautz

This year has truly flown by in a flash, giving credence to the old saying that days are long but years are short!

 

It seems like it was summer only yesterday…or maybe that’s because here in Texas it still felt like summer yesterday. Yet despite the temperatures, the holidays are in full swing and we are enjoying both our office gatherings and time with our families.  

 

We know many of you are working hard to close out this busy year and we are doing the same with mediations, depositions and hearings galore. We truly appreciate the opportunity we have had to work with all of you throughout this year and into the next. As you finish 2024 and gather with family around holiday tables and with friends and coworkers at holiday celebrations, we wish you a successful completion of the year and all the joy of this season!

There is a Split in Authority Across the Country about what Constitutes an Unknown or Unidentified Driver and there are no Texas Cases

by Craig Reese

Many people are involved in what appear to be minor accidents. Because of time constraints or the lack of any obvious bodily injury or property damage, the drivers will just agree to go their separate ways, not report the accident, and otherwise not exchange information. Then, the driver that was hit develops symptoms of bodily injury or discovers that the car was damaged in ways that were not readily apparent. The owner of the vehicle then wants to make a UM/UIM claim because they don’t have any information on the other driver.


Section 1952.104 of the Texas Insurance Code provides for certain required provisions in any auto policy that provides coverage for uninsured or underinsured motorist coverage. One of those provisions provides that the coverage must:

[R]equire that, for the insured to recover under the uninsured motorist coverage if the owner or operator of any motor vehicle that causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.

Tex. Ins. Code Ann. § 1952.104(3).

 

Section 550.022 of the Texas Transportation Code requires that the operator of a vehicle involved in a collision resulting only in damage to a vehicle that is driven by another person shall (1) immediately stope the vehicle at the scene of the collision or as close as possible, and (2) remain at the scene until the operator complies with the requirements of Section 555.023. Tex. Transp. Code Ann.§ 550.022(a). A person commits an offense if the person does not stop and comply with these requirements. Id. at § 550.022(c).


Section 550.023 of the Texas Transportation Code requires that a person involved in a collision resulting in injury or damage to a vehicle shall (1) give the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operator’s motor vehicle liability insurer to any person injured or the operator or occupant of the vehicle involved in the collision, and (2) if requested, show the operator’s driver’s license to a person described in (1) above. Tex. Transp. Code Ann.§ 550.023.


There is no commensurate statutory duty upon the other driver of the vehicle that was involved in the collision to obtain information.


Although the average person would likely consider a hit-and-run driver to be one who flees the scene, the law is not clear about whether fleeing the scene is a required element for coverage under UM. In fact, there is a split in authority amongst the decided cases. Unfortunately, there are no Texas authorities on this issue. At this point in time, there is no clear answer on which way a Texas court might lean given that the split is fairly even. As will noted in this discussion, courts that have found coverage to exist do so either because the court finds that the failure to define the term “hit-and-run” vehicle or the failure to define the term “unidentified” or “unknown” renders these terms ambiguous such that the court will construe the terms in favor of the insured. Other courts have focused on whether the insured knew he or she was injured and whether the insured was the driver or passenger.


One of the most recent cases to discuss these issues recognized the split in authority on what constitutes a hit-and-run motor vehicle. Metropolitan Direct Prop. & Cas. Ins. Co. v. Farmer, 2019 WL 3412909 (E.D. Ky. 2019). In that case the insured claimed that he was hit by a car while walking near a grocery store. The driver stopped and spoke with the insured, but the insured did not exchange information with the driver and the driver remained unidentified. The insured claimed he did not realize he was injured at the accident scene, but began to experience pain several days later. It was later discovered that the insured had a massive tear in his rotator cuff. The carrier denied uninsured motorist benefits because the incident was neither reported to the police within 24 hours nor reported to Metropolitan within 30 days. As a result, the carrier argued it suffered substantial prejudice.

Joke of the month:

Why did the lawyer eat the whole pie at Thanksgiving? (see answer at the bottom of the newsletter)

Thank you for being an essential part of our success. Happy Anniversary!

Clarissa Perez

11/1 - 3 years

Craig Reese

11/27 - 29 years

Citrus Spice Cranberry Sauce

Ingredients:

  • 4 whole cloves
  • 3 star anise
  • 3 cinnamon sticks
  • 2 medium navel oranges
  • 2 14-ounce cans whole-berry cranberry sauce


Directions:

  1. Place spices in a cheesecloth and gather into pouch. Tie with twine.
  2. Zest 1 orange. Remove peel from both oranges. Slice oranges into segment s and place in pot. Discard membranes.
  3. Add cranberry sauce and spice pouch to pot. Bring to simmer on medium heat. Reduce to medium-low and stir occasionally until slightly thickened, about 15 minutes.
  4. Remove spice pouch. Stir in zest. Serve warm or at room temperature.

The Metropolitan policy defined a hit-and-run vehicle as one that causes bodily injury as a result of striking the insured or a vehicle in which the insured is located. The policy then conditioned that definition by stating that it only applied (a) if the identity of the driver was unknown, (b) the accident was reported to law enforcement within 24 hours, (c) the accident was reported to the carrier within 30 days, and (d) the injured person made available for inspection, the motor vehicle occupied by that person at the time of the accident. Id. at *3. The court noted that although the policy contained the conditions for coverage to apply, it did not otherwise define “hit-and-run” anywhere in the policy. Id.


The court was faced with determining whether the use of the phrase was ambiguous. The insured argued that the phrase is not ambiguous and should be afforded its ordinary meaning. He contended that the common understanding of the phrase refers to a vehicle that has left the scene without stopping. The insured argued that the dictionary, which defines the term as “being or involving a motor-vehicle driver who does not stop after being involved in an accident” supported his argument. Id. at *4 (citation omitted). The carrier argued that the policy provided clarification of the meaning of the term by noting that the identity of the driver must be unknown, but noted the policy did not require that the driver leave the scene without stopping. Id.


The court noted that courts across the country disagree on the meaning of the phrase hit-and-run.” It noted that some courts have determined that the phrase encompasses an accident where the at-fault driver does not immediately flee the scene, but nevertheless leaves the accident without being identified. Id. (citations omitted). The court noted that other courts agree, but only where the injured individual does not know of the injury at the time of the accident. Id. (citations omitted). Other courts additionally consider whether the injured person made reasonable attempts to identify and locate the offender. Id. (citations omitted). Other courts require that the driver flee the scene post-accident for the accident to be considered a “hit-and-run” accident. Id. (citations omitted).


The court ultimately concluded that the term was ambiguous, noting:


The jurisdictional split among courts confirms that the phrase “hit and run” is susceptible to two different, reasonable constructions. Given the foregoing and considering that the parties ultimately disagree on the meaning of that phrase “hit and run,” the Court finds that “hit and run” as used in the…insurance policy, is ambiguous. Because “hit and run” is ambiguous, the Court construes it in favor of finding coverage for the insured.


Id. at *5.

 

Therefore, just because the insured allowed the other driver to leave without getting information may not ultimately preclude a UM/UIM claim.


Current Events

CLM DALLAS PANEL


CLM Dallas hosted a great event at the Arts District Mansion. Our very own Fred Arias was on the panel and shared his expertise on the "Anatomy of a Billion Dollar Trial" Discussion.

NATIONAL BUSINESS INSTITUTE WEBINAR



Kristi Kautz was the speaker for the National Business Institutes' webinar, "From Defects to Delays: Your Blueprint to Insurance Coverage Issues in Construction Claims".


Inquire about speakers for your event by contacting our office!

ATTORNEY MEETING


This month, our attorneys had the pleasure of listening to Lorin Subar discuss valuable insights on responsibility in car accidents.

Joke of the month:

Because they believe in full dish-closure!

Fletcher Farley Shipman & Salinas LLP


fletcherfarley.com

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