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.
|