Brown v. Progressive Mutual Insurance Co.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (Progressive Mutual Insurance Company v. Brown, 229 So.2d 645), which allegedly conflicts with a prior decision of the District Court of Appeal, Third District (Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73), on the same point of law. Fla. Const., art. V, § 4, F.S.A. This case involves application of Fla.Stat. § 627.0851, F.S.A., the uninsured motorist statute, to a hit-and-run accident.

We have jurisdiction. In the Butts case, a motorist was run off the road and into a utility pole by a hit-and-run driver, and the injured motorist’s insurance policy contained the standard clause limiting liability to those cases where the hit-and-run driver made physical contact with the insured or the vehicle in which the insured was riding. In view of the uninsured motorist statute, the insured was held to be covered.

In the instant case, the injured petitioner’s vehicle was run off the road by a hit- and-run driver, but it is not known that physical contact was made between the two vehicles. By application of the policy requirement of physical contact, the District Court of Appeal concluded that the injured person was not entitled to a recovery; this reversed the ruling of the trial court, which found that the restrictive clause was void as against public policy, being an attempt to restrict the language of Fla.Stat. § 627.0851, F.S.A., the uninsured motorist statute.

The purpose of the uninsured motorist statute is to protect persons who are injured or damaged by other motorists who in turn are not insured and cannot make whole the injured party. The statute is designed for the protection of injured persons, not for the benefit of insurance companies or motorists who cause damage to others. The effect of the District Court of Appeal decision here for review is to place on the injured person in every case the burden of proving that the offending party was without insurance regardless of the circumstances, the equities or the difficulties. Failure on the part of the injured party to make such proof results in nonre-covery, and the certainty that in some cases at least, injured persons then become the burden of society or of the state, despite their attempt to protect themselves by purchase of insurance intended to shield them against damages inflicted by a party from whom recovery cannot be made in person or through his insurance.

In deciding whether a person is entitled to the protection of Fla.Stat. § 627.-0851, F.S.A., the question to be answered is whether the offending motorist has insurance available for the protection of the injured party, for whose benefit the statute was written; the test should not be simply whether or not the injured party can prove the offending party was uninsured, which is, in many instances, impossible in hit- and-run cases. Any other construction of the statute is unfair and unduly restricts the application intended by the Legislature.

The argument that the policy requirement of physical contact is reasonable is fallacious. The only reason for such a requirement is to prove that the accident actually did occur as a claimant may say it did. This is a question of fact to be determined by the jury, or the judge if demand for jury trial is not made. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact. If twenty witnesses will swear they saw the accident happen, their testimony should not be deemed worthless, as it would be under the decision here for review.

The decision of the District Court of Appeal is quashed, and the cause is remanded to the District Court of Appeal with instructions to reinstate the judgment of the trial court.

ERVIN, CARLTON, and McCAIN, JJ„ concur.

DEKLE, J., dissents with opinion.

■ ROBERTS, C. J., and BOYD, J., dissent.