April 07, 2006

What is an uninsured motor vehicle?

Defining the uninsured motor vehicle is usually not difficult, but sometimes invovles some interesting factual matters. Under Alabama Code § 32-7-23(b)(1975) an uninsured motorist vehicle includes but is not limited to: “…motor vehicles with respect to which: (1) neither the owner nor the operator carries bodily injury liability insurance; (2) any applicable policy liability limits for bodily injury are below the minimum required under § 32- 7-6; (3) the insurer becomes insolvent after the policy is issued so there is no insurance applicable to, or at the time of the accident; and (4) the sum of the limits of liability under all bodily injury liability bonds and insurance policies available to an injured person after an accident is less than the damages which the injured person is legally entitled to recover.”

Additionally, Alabama Code § 32-7-23(a) defines an uninsured motor vehicle as one in which the injured and insured person is “legally entitled” to recover damages.

In Higgins v. Nationwide, 291 Ala. 462,466-467, 282 So. 2d 301, 305 (1973) the court held: “It is reasonable and safe to state that “an uninsured automobile is ordinarily defined to include motor vehicles with respect to which neither the owner nor the operator carries bodily injury liability insurance, and ‘hit and run’ automobiles.” Quoting 7 Am. Jur. 2d Automobile Insurance § 136 page 462; 79 ALR 2d 1253.

An uninsured motor vehicle is also one in which an owner or operator has a liability carrier that has lawfully denied coverage. The burden is on the plaintiff to prove this or show reasonable diligence in an effort to prove this. See Ogle v. Long, 551 So. 2d 914 (Ala. 1989). For example, an exclusion may apply for insureds breach of a duty under the policy. A lawful denial of coverage makes the insured, uninsured. An insolvent carrier may also cause an owner or operator to meet the definition of an uninsured motorist. See R. Davenport, Alabama Automobile Insurance Law §§ 20-3 & 4.

The Phantom Vehicle

One of the more controversial definitions of an uninsured motor vehicle involves an unknown operator or owner. For example, a hit and run driver or an individual who negligently or wantonly strikes the injured’s vehicle or forces the injured person off the road into an accident without actually contacting it, may also constitute an uninsured motorist. See State Farm Fire & Casualty v. Lambert, 291 Ala. 645, 285 So. 2d 917 (1973).

An unknown operator or owner who leaves something on the roadway may also constitute an uninsured motorist. For example, an oil slick in Jones v. Nationwide, 598 So. 2d 837, 838 (Ala. 1992) caused the unknown operator or owner to become an uninsured motorist. In Khirieh v. State Farm Mutual Automobile Insurance Company, 594 So. 2d 1220 (Ala. 1992) the court held that the evidence that the plaintiff’s vehicle struck a truck bench seat was evidence that the plaintiff’s injuries were caused by an unknown driver’s negligence in the ownership, maintenance, or use of his motor vehicle and that the evidence was sufficient to defeat the insurer’s summary judgment motion on the plaintiff’s uninsured motorist claim. Gravel left on the roadway which caused a loss of control of the plaintiff’s motor vehicle was held sufficient evidence to allow for an uninsured motorist claim against the phantom vehicle in the case Alfa Mutual Insurance Company v. Beard, 597 So. 2d 664 (Ala. 1992).

In situations involving a phantom vehicle. insurance carriers have tried different approaches in an attempt to require contact or some physical evidence that a phantom vehicle existed, other than the mere testimony of the injured individual.

In Walker v. GuideOne Specialty Mutual Insurance Company, 834 So. 2d 769, 773 (Ala. 2002) the court held, in examining the corroborative evidence requirement set forth in GuideOne’s uninsured motorist coverage, “The undeniable effect of GuideOne’s corroborative - evidence requirement, therefore, is to exclude from coverage those who are involved in an accident as the result of a phantom vehicle, but who cannot present “competent evidence other than the testimony of the person making [a] claim.” Such persons may be “legally entitled” to recover under § 32-7-23, but they are denied uninsured-motorist coverage because they do not meet GuideOne’s contractual burden of proof.”…because GuideOne’s corroborative evidence requirement is more restrictive than the uninsured-motorist statute, it is void and unenforceable.”

Interestingly, the Alabama Supreme Court in Walker declined to follow the case Moreno v. Nationwide Insurance Company, 114 F. 3d 168 (11th Cir. 1997). This 11th Circuit opinion involved an interpretation of the very same statute but was decided in favor of the insurance carrier. Also previously in Hannon v. Scottsdale Insurance Company, 736 So. 2d 616 (Ala. Civ. App. 1999) the Court of Civil Appeals had concluded that the corroborative evidence requirement in a hit and run accident, which required more than the testimony of the insured was not in derogation of the Alabama uninsured motorist statute or of the public policy of the state of Alabama.

Government Vehicles

Governmental Immunity of the tortfeasor may also cause the tortfeasor to be classified as an uninsured motorist. In State Farm v. Baldwin, 470 So. 2d 1230 (Ala. 1985) an army sergeant at Fort Rucker, Alabama was hurt when a vehicle operated by a civilian government employee struck his motorcycle. Under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 and as interpreted in Feres v. United States, 340 U.S. 35, 95l. ed. 152, 71 S. Ct. 153 (1950) neither Baldwin nor his wife could recover from the United States of America or the U.S. employee Mr. White. The Alabama Supreme Court held that the Feres doctrine was inapplicable and due to the fact that the Baldwins were legally entitled to recover damages against White and the government within the meaning of § 32-7-23 regardless of the fact that the U.S. statute and Feres doctrine otherwise barred the claim, the Baldwins were entitled to recover uninsured motorist benefits under their policy with State Farm.

Worker’s Compensation

In the Worker’s Compensation context plaintiff’s attorneys have sought to define a co-worker who negligently injures his fellow employee as an uninsured motorist. The Supreme Court has held in Ex parte Carlton 867 So. 2d 332 (Ala. 2003), 2003 Ala. Lexis 112, that you may not seek uninsured motorist benefits for his co-employee’s negligent or wanton conduct. Worker’s Compensation benefits are the only remedy allowed. This was due to the bar posed against co-employee suits under the Worker’s Compensation Act.