This article expands on the Basics of Negligence article we posted a couple weeks ago. If you haven't read it already, get on it!
We've all had to speed up, swerve, or slam on the brakes because some jackleg did something untoward on the road. If you drive on a regular basis, it probably happens to you all the time. Because you're now well-versed in negligence, you know that jacklegs have a legal duty to refrain from being untoward on the road, and that they breach that duty when they do, in fact, behave in an untoward manner. When you swerve to avoid a jackleg and hit the guardrail, you have sustained damages caused, actually and proximately, by said jackleg's negligent behavior. Since you generally have to establish negligence in order to establish liability, the jackleg's negligence here entitles you to recover from him (or her), right? And since jacklegs don't typically stop after causing accidents, you'll have to look to your own policy's uninsured motorist coverage in order to recover, right?
Well, not so fast. We need to first take a look at what North Carolina law says about accidents like these. If we take a look at North Carolina General Statutes § 20-279.21(b)(3), we find the following language:
"Where the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as the result of collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, the insured may institute an action directly against the insurer ... "
So here's what we're dealing with. You're injured because of a collision between your car and another car, and you don't know who the at-fault driver is because he or she left the scene, so you get to file a claim through your own carrier and recover via uninsured motorist coverage ("UM"). Simple enough, but what happens when the phantom driver doesn't actually hit you, but negligently causes a collision between your motor vehicle and something like a tree or light pole? Does the statute still apply to allow you to recover via UM coverage?
At this point it avails us to dig a little bit deeper, delving into North Carolina case law. In 1989, the North Carolina Court of Appeals heard Petteway v. South Carolina Ins. Co., after the plaintiff was forced off the road and into a ditch by a phantom vehicle. The Court affirmed the decision of the trial court; namely that because there was no collision between motor vehicles, there was no UM coverage available under the statute. This was true even though a witness saw the accident and confirmed the plaintiff's version of the events. Similar fact patterns were adjudicated the same way in cases like East v. Reserve Insurance Co. and Hendricks v. United States Fidelity and Guaranty Co.
Now we know that UM coverage doesn't apply when a phantom vehicle causes you to collide with something other than a vehicle, but what about when the phantom vehicle does actually cause a collision between motor vehicles? That's within the language of the statute, right? Well, North Carolina case law tells a bit of a different story. In 1994, the North Carolina Supreme Court held in Andersen v. Baccus that UM coverage was not available when a phantom driver caused a collision between two motor vehicles, but didn't make physical contact with either one. The Supreme Court said that the intent behind the statute is for UM coverage to only apply when the hit-and-run vehicle actually collides with a vehicle in causing the crash. This might seem to contravene the actual language of the statute, but it's an important distinction; there will be UM coverage if the phantom driver hits your car or hits another car, which then hits you. However, there will not be UM coverage if the phantom driver doesn't make physical contact with any vehicle, even if the phantom driver's negligence is the sole cause of the collision. This illustrates an interesting interplay between our "no contact" and "sudden emergency" exceptions here in North Carolina.
While the hit-and-run scenario is the one we see most often, the "no contact" rule is also implicated when an object falls off of a vehicle and gets hit by an unsuspecting motorist later. As you may be able to predict, our courts have also held that there is no UM coverage in these situations. You may be better served in seeking to recover through your policy's collision coverage under these facts, provided that you've opted to purchase collision coverage (remember that this type of coverage is optional in North Carolina, though you're probably required to have it if you're financing or leasing your car).
In conclusion, you need to remember that a hit-and-run requires both a hit and a run before you can recover under your UM insurance in North Carolina. There's no coverage if a jackleg causes you to collide with something else, but doesn't actually hit your car, and there's no coverage if you hit an object in the road that fell off of some jackleg's car. Get it? Got it? Good!