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11/01/83 MICHAEL G. HAYNE v. PROGRESSIVE NORTHERN

November 1, 1983

MICHAEL G. HAYNE, PLAINTIFF-APPELLANT,
v.
PROGRESSIVE NORTHERN INSURANCE COMPANY, A FOREIGN CORPORATION, DEFENDANT-RESPONDENT



Appeal from a judgment of the Circuit Court for Waukesha County: Neal Nettesheim, Circuit Judge. On bypass from Court of Appeals.

William A. Bablitch, J. Shirley S. Abrahamson, J. (dissenting). Justice Louis J. Ceci joins this Dissent.

The opinion of the court was delivered by: Bablitch

This is an appeal from a judgment of the circuit court for Waukesha county, Honorable Neal Nettesheim, Judge, entered on September 16, 1982. The trial court dismissed Michael Hayne's complaint against Progressive Northern Insurance Co. (Progressive). Hayne appealed the judgment to the court of appeals. On December 23, 1982, Hayne filed a petition to bypass the court of appeals, which this court granted on January 11, 1983.

The sole issue on appeal is whether sec. 632.32(4) (a) 2.b., Stats., requires uninsured motorist coverage for an accident involving an insured's vehicle and an unidentified motor vehicle when there was no physical contact between the two vehicles.

We hold that sec. 632.32(4) (a) 2.b., Stats., does not mandate such coverage. We therefore affirm the judgment of the circuit court.

The stipulated facts indicate that on June 20, 1981, Hayne was operating a motor vehicle owned by Gregg Luedtke with Luedtke's consent. While Hayne was driving the vehicle on a county highway, he swerved to avoid an oncoming vehicle. Hayne lost control of his vehicle and the vehicle overturned. There was no physical contact between Hayne's vehicle and the other vehicle. Both the vehicle that Hayne swerved to avoid and its driver are unidentified.

Hayne sustained injuries as a result of the accident. He subsequently filed a claim against Progressive for payments for his medical expenses and for damages pursuant to the uninsured motorist coverage provisions of an automobile insurance policy that Progressive had issued to Luedtke, which covered the vehicle Hayne was operating at the time of the accident. Progressive denied the claim because it determined that the provisions of Luedtke's policy did not provide coverage for that type of accident.

Hayne filed a complaint against Progressive, in which he sought compensatory and punitive damages. Hayne subsequently filed an amended complaint against Progressive seeking only compensatory damages. Progressive filed a motion for summary judgment, arguing that the following provisions of the insurance policy it issued to Luedtke precluded Hayne's claim:

"Part IV -- Uninsured Motorists

"Coverage 1 -- Uninsured Motorists

"Coverage

"We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle up to the limit of liability as defined in this part. The bodily injury must be caused by accident and arise out of the ownership, maintenance or driving of the uninsured motor vehicle.

". . .

"As used in this Part:

". . .

"3. 'Uninsured motor vehicle' means a motor vehicle which is:

". . .

"d. 'hit-and-run motor vehicle'

". . .

"4. 'Hit-and-run motor vehicle' means vehicle whose operator and owner are unknown, which strikes

"a. you or a relative; or

"b. your insured car, or a vehicle which you or a relative is occupying, resulting in injury to an insured person. *fn1

". . . ."

Progressive argued that because there was no striking or physical contact between the vehicle Hayne was driving and the unidentified vehicle, the policy did not provide coverage for the type of accident Hayne was involved in. Progressive also contended that our prior decision in Amidzich v. Charter Oak Fire Insurance Co., 44 Wis. 2d 45, 170 N.W.2d 813 (1969), supported its assertion that the uninsured motorist provision of Luedtke's policy precluded Hayne's claim.

Hayne argued that he was entitled to coverage under secs. 632.32(4) (a)1. and 632.32(4) (a)2.b., Stats., 1979-80, which provided in pertinent part: *fn2

"(4) Required uninsured motorist and medical payments coverages. Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall contain therein or supplemental thereto provisions approved by the commissioner:

"(a) Uninsured motorist. 1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $15,000 per person and $30,000 per accident. The insurer may increase the coverage limits provided under this paragraph up to the bodily injury liability limits provided in the policy.

"2. In this paragraph 'uninsured motor vehicle' also includes:

". . .

"b. An unidentified motor vehicle involved in a hit-and-run accident."

Hayne asserted that sec. 632.32(4) (a) 2.b. should be construed to mandate coverage for an accident involving an unidentified motor vehicle even though there is no "hit" or physical contact between the vehicles involved in the accident.

The trial court concluded that Amidzich remains the controlling interpretative decision of Wisconsin's uninsured motorist statute. The court held that sec. 632.32 (4) (a) 2.b., Stats., does not require coverage for an accident involving an unidentified motor vehicle where there was no physical contact between the vehicles. The court therefore granted Progressive's motion and dismissed Hayne's complaint. Hayne appealed, and we granted his petition to bypass.

It is clear that the express terms of Progressive's insurance policy requiring a striking between vehicles involved in a hit-and-run accident ordinarily would preclude Hayne's claim because no striking occurred in his accident. However, coverages omitted from an insurance contract may be compelled and enforced as part of that contract where the inclusion of such coverage is statutorily required. Amidzich, 44 Wis. 2d at 53. We must therefore determine whether the uninsured motorist coverage mandated by sec. 632.32(4) (a) 2.b., Stats., includes coverage for an accident involving an unidentified motor vehicle when there was no physical contact between the vehicles involved in the accident.

In construing a statute, first recourse must be to the statutory language itself. State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981). Section 990.01(1), Stats., relating to general rules of statutory construction, provides that all non-technical statutory words and phrases must be construed according to their common and approved usage. The common and approved usage of words in a statute can be established by reference to a recognized dictionary. Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981).

The statutory language at issue in this case is the term "hit-and-run" as used in sec. 632.32(4) (a) 2.b., Stats. The question is whether the term "hit-and-run" includes "miss-and-run" or whether it requires an actual physical striking.

Webster's Third New International Dictionary 1074 (1961) defines "hit-and-run" as "2a(1) of the driver of a vehicle: guilty of leaving the scene of an accident without stopping to render assistance or to comply with legal requirements (2): caused by, resulting from, or involving a hit-and-run driver . . . ." Webster's then refers to a "hit-and-run driver" in the definition of "hit-and-runner": "one that hits and runs away; esp: a hit-and-run driver." Id. "Hit" is defined as "to reach or or get at by striking with or as if with a sudden blow." (Emphasis added.) Id. The American Heritage Dictionary 625 (1979) defines "hit-and-run" as "designating or involving the driver of a motor vehicle who drives on after striking a pedestrian or another vehicle." (Emphasis added.) Funk and Wagnall's Standard College Dictionary 636 (1968) provides the following definition of "hit-and-run": "designating, characteristic of, or caused by the driver of a vehicle who illegally continues on his way after hitting a pedestrian or another vehicle." (Emphasis added.) "Hit" is defined as "to give a blow to; strike forcibly." (Emphasis added.) Id. at 636. These definitions clearly indicate that the plain meaning of "hit-and-run" consists of two elements: a "hit" or striking, and a "run", or fleeing from the scene of an accident.

When statutory language is clear and unambiguous, we must arrive at the legislature's intention by according the language its ordinary and accepted meaning. State v. Engler, 80 Wis. 2d 402, 406, 259 N.W.2d 97 (1977). In addition, we will not resort to extrinsic aids, such as legislative history, to construe the statute when the statute is ...


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