
    In the Matter of the Arbitration between Frederick F. Smith, Respondent, and Great American Insurance Company, Appellant.
    Argued April 22, 1971;
    decided July 6, 1971.
    
      
      Francis J. Holloway for appellant.
    I. There was no hit-and-run vehicle involved in the present accident. (MVAIC v. Eisenberg, 18 N Y 2d 1; Matter of Colestock [Utica Mut. Ins. Co.], 28 A D 2d 1205; Gavin v. MVAIC, 57 Misc 2d 335.) II. Even assuming that the tractor-trailer was a “hit and run vehicle,” there was no physical contact of such vehicle with claimant’s vehicle, as required by the standard uninsured motorist endorsement.
    
      Keith G. Flint for respondent.
    The required “ physical contact ’ ’ occurred between the hit-and-run vehicle and respondent’s vehicle. (MVAIC v. Eisenberg, 18 N Y 2d 1; Gavin v. MVAIC, 57 Misc 2d 335.)
   Breitel, J.

The issue, in this proceeding to stay arbitration, is whether there was physical contact between an unidentified vehicle and the injured claimant’s automobile as contemplated by the Accident Indemnification Law (Insurance Law, § 617). An unidentified tractor-trailer combination approached claimant ’s automobile from an opposite direction. Snow and ice were dislodged from the tractor-trailer, striking and shattering claimant’s windshield and thus causing the injuries. Special Term and the Appellate Division allowed the arbitration. There should be a reversal, because there was no physical contact as contemplated by the statute.

The statute reads: “ The protection provided by this article shall not apply to any cause of action by an insured or qualified person arising out of a motor vehicle accident occurring in this state lying against a person or persons whose identity is unascertainable, unless the bodily injury to the insured or qualified person arose out of physical contact of the motor vehicle causing such bodily injury with the insured or qualified person or with a motor vehicle which the insured or qualified person was occupying at the time of the accident. The word ‘ occupying ’ means in or upon or entering into or alighting from.” (Insurance Law, § 617, emphasis supplied.)

The claim is made by claimant as an “ insured ’ ’ under the standard uninsured motorist endorsement appended to his own automobile insurance policy which, with respect to hit-and-run accidents, follows the statutory language and includes, therefore, the same limitations.

In MVAIC v. Eisenberg (18 N Y 2d 1) Judge Keating on behalf of the court discussed the purpose and scope of the remedial statute (Insurance Law, §§ 617, 618 ) in providing protection for innocent victims of " hit-and-run ’ ’ accidents involving unknown vehicles and yet deterring the prosecution of fictitious claims. In doing so, the court construed the term " physical contact ’ ’ in the statute as not limited to direct contact with the unidentified vehicle. It, therefore, sustained the remedy in favor of one who had been injured as a result of the offending vehicle pushing another vehicle into the claimant’s automobile. It was emphasized that the intermediate vehicle was merely an involuntary object which did not insulate MVAIG in that ease from responsibility under the statute. Other hypotheses were illustratively discussed: the offending vehicle striking a telephone pole which in turn is propelled into the claimant’s vehicle; the offending vehicle striking a motorcycle whose rider is propelled through the air into a pedestrian. Contrasted, as not involving the required physical contact, were deviations from the roadway caused by the menace of an oncoming vehicle, or a collision between two automobiles caused by the menace of still a third unidentified vehicle. These last illustrations, it was noted, in the absence of physical contact lacked objective evidence that an unidentified vehicle was involved and thus opened the door to fraud and collusion.

In this case below, and in some others, the construction in the Eisenberg case, embracing indirect as well as direct contact within the statutory term of physical contact, has been broadened to include causal nexus much too convoluted to fall either within the statute or its purpose even if the statute be given a most liberal heading (see, in addition to this case below, at 35 A D 2d 233: Matter of Colestock [Utica Mut. Ins. Co.], 28 A D 2d 1205; Gavin v. MVAIC, 57 Misc 2d 335; see, also, cases cited in Ann., Hit-and-Bun Vehicle — Physical Contact, 25 ALB 3d 1299,1304-1305, including cases decided prior to the Eisenberg case). Moreover, it is obvious that even more indirect relationships may occur or may be devised, almost without end, so that the statutory limitation may be denuded of all effect.

If the analysis, application, and illustrations in the Eisenberg case are considered, it is readily evident that the kind of contact required by the statute, even if not direct, must at least originate in collision. Thus, physical contact as contemplated by the statute may involve, it is true, the continued transmission of force indirectly and simultaneously through an intermediate agency, but the initial impact must, nevertheless, be that of a collision between the unidentified vehicle with the claimant, the vehicle occupied by him, an obstruction or other object causing the bodily injury. Excluded, therefore, are objects cast off or cast up by the hit-and-run vehicle, whether it be ice accumulated on the vehicle or pebbles or rocks or other debris on the roadway surface. Every transmission of force by a moving vehicle is not a collision, and the statute is concerned only with an initial collision by the unidentified vehicle with someone or something, and then a continued transmission of the colliding force with the injured person.

Several purposes are thus served. The kind of damage sustained by claimant or his automobile, or by the intermediate object, is more likely to evidence the existence of the unidentified hit-and-run vehicle and that it was the cause of the accident (MVAIC v. Eisenberg, 18 N Y 2d 1, 5, supra). The definitional extension of the word “ contact ” in the controlling statute is not expanded beyond ordinary meaning; indeed, the only extension is not to limit contact to direct contact, a limitation not expressed in the statute. Perhaps most important, but in any event very important, is that requiring collision by the unidentified vehicle to initiate the sequence of physical events resulting in bodily injury, assures much greater probability that the offending vehicle was being operated negligently. There is only minimal probability in the great range of such accidents that the automobile operator’s negligence caused ice to accumulate on his vehicle or to become dislodged, and it is only a little more probable that negligent driving caused pebbles, rocks, dust, or other debris to be cast up by the vehicle’s wheels. In the rare case where negligence may be responsible for the accident, then there is no indemnification under the statute. Good examples of such negligently caused accidents, and yet not covered by the statute, would be those caused by objects cast off or falling from a speeding or insecurely laden hit-and-run vehicle itself, such as parts of the vehicle or its load. And this is hardly surprising, for in requiring physical contact with the offending vehicle to base responsibility under the statute the legislative purpose is evident; some negligently caused accidents are to be excluded or else the requirement of physical contact performs no function whatever. The reason for the exclusion is sufficiently developed in the opinion in the Eisenberg case; it is to deter fictitious claims, too easily contrived in the absence of physical contact.

Finally, the impulse to read the statute liberally and to effect its purpose must be limited by the language used. In statutory construction, purpose may permit a broad and even an unusually broad rendering of the statutory language. But purpose cannot be a warrant to go beyond the language used. The language is a limitation on construction even as the purpose may be a liberalizing factor (cf. e.g., Lanvin Parfums v. Le Dans, Ltd., 9 N Y 2d 516, 521; Bright Homes v. Wright, 8 N Y 2d 157, 161-162; see, also, McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 111, at pp. 230-232). The two factors must be accommodated. The Eisenberg case by its rule permitting physical contact with the offending vehicle to include indirect contact was a liberating influence. But the indirect contact, a broad construction in itself, cannot be then used again as a starting point to cover any indirect causation however convoluted, reducing the ‘ ‘ contact ’ ’ part of the statutory term to a nullity. Obviously most accidents have some physical beginning and the harm is almost always a physical consequence. The point is that between the two there must be a closer and more substantial physical nexus either in a single collision or in connected collisions.

Unfocused forces, whether produced by centrifugal force or ricochet, set off by a moving vehicle do not provide the kind of physical nexus contemplated by the statute nor understood in common parlance to constitute physical contact with the vehicle itself. On the other hand, common understanding does embrace within physical contact the limited indirect contact by collision through inert or inactive intermediate solid objects, as discussed in the Eisenberg case. The point also is that, as a matter of statutory construction, physical contact requires a narrower category of cause than would be understood in tort law as proximate cause, or again the statutory limitation would have no meaning. (For an excellent analysis, see Note: 20 So. Car. L. Rev. 790, in which the ramifications of the rule in the Eisenberg case are discussed.)

The issue involved here has troubled other courts and as may be expected there have been divergent conclusions (see Ann., Hit-and-Run Vehicle — Physical Contact, 25 ALR 3d 1299, esp. at pp. 1304-1305, supra; Notman, Study of Uninsured Motorist Endorsement, 43 Notre Dame Lawyer 5, 10-13; Aksen, Uninsured Motorist Claims, 24 Ohio St. L. J. 589, 602; Chadwick and Poche, Uninsured Motorists, 13 Hastings L. J. 194, 197-198; Note: 29 Brooklyn L. Rev. 286, 294-295; Comment: 42 Tulane L. Rev. 352, 364U365). It is not an issue easy to resolve or a test easy to apply. Nor may one be confident that any verbal formulation, however precise one might wish to make it, could or would embrace every conceivable combination of events which may arise. The goal is to accord every liberal extension to the remedial statute but not to the point of judicially removing the meaning and frustrating the purpose of limiting language deliberately inserted into the statute (e.g., Fontheim v. Third Ave. Ry. Co., 281 N. Y. 392, 394; 56 N. Y. Jur., Statutes, §§ 109, 168; see, also, id. § 229).

Accordingly, the order of the Appellate Division should be reversed, without costs and the arbitration stayed.

Chief Judge Fuld (concurring).

Since I believe that the court’s opinion goes beyond the necessities of the case, I take the liberty of writing briefly to indicate my rationale and pinpoint the basis for my conclusion.

The claimant before us, an insured under the terms of a policy issued by the appellant insurance company, grounds his claim upon the uninsured motorist endorsement in his policy. That endorsement—based on section 617 of the Insurance Law (bearing the caption “ ‘ Hit and run ’ causes of action ”) and following the language of that statute — obligates the insurer to pay to its insured all sums which the latter would be entitled to recover as damages from the owner of “an uninsured highway vehicle ” (Uninsured Motorist Endorsement, par. I). Such a vehicle is defined to include a “hit-and-run vehicle * * * which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident ” (par. V).

We start, therefore, with the undisputed and indisputable premise that, to entitle the claimant to arbitration, it must appear that there was an unidentified “vehicle which caus[ed] [his] bodily injury ”. In the case before us, there was no such vehicle. The automobile in which the claimant was riding was merely struck by some snow and ice which had become dislodged from a tractor-trailer as that vehicle and his auto passed each other going in opposite directions. The tractor-trailer itself may not be considered to have ‘ ‘ caused ’ ’ the accident. Concededly, it did not collide or come in contact with the claimant’s car — or any other (see MVAIC v. Eisenberg, 18 N Y 2d 1) —and, clearly, there was no ‘ hit-and-run ’ ’ vehicle as that term is understood. It follows, therefore, that the claimant does not come within the language of either section 617 or the Uninsured Motorist Endorsement provision.

This disposes of the case, and nothing said or decided in Eisenberg (18 N Y d 1, supra) requires us to embark on a dissertation concerning the sort of “ physical contact ” which must be established if the asserted injury or damage had actually been occasioned by a hit and run vehicle. In the Eisenberg case, there was, and this was central to our decision, such a vehicle, and we simply concluded that the requirement of ‘ ‘ physical contact ” between the hit-and-run vehicle and the claimant’s automobile was met by proof that the latter was struck by a third car which had been “ pushed [or propelled] * * * by a hit and run vehicle ” into the claimant’s auto (18 N Y 2d, at p. 3; also, p. 5). Thus, although in Eisenberg we relaxed the requirement of ‘‘ physical contact ’ ’ between the unidentified vehicle and the claimant’s, we did not eliminate or affect the basic statutory prerequisite that a hit-and-run vehicle exist and that it cause the injury. On the contrary, the court was careful to declare (18 N Y 2d, at p. 5) that [p]roof that a hit and run vehicle did in fact exist is then clearly available for, as ‘ physical contact ’ almost invariably produces visible evidence of impact, the possibility of a ‘ phantom ’ hit and run driver becomes minimal.”

In sum, I favor a reversal of the order appealed from and a stay of arbitration for the simple reason that there was here no hit and run vehicle, as contemplated either by the statute or by the uninsured motorist endorsement, which caused the claimant’s injury.

Bergan, J. (dissenting).

If one could indulge in a fresh reading of section 617 of the Insurance Law, unencumbered by the gloss of judicial construction, the court would clearly be right in holding in the present case that ice coming from a truck failing to stop did not amount to ‘ physical contact ’ ’ of that vehicle “ with ” the claimant’s car. The dissent in MVAIC v. Eisenberg (18 N Y 2d 1, 5) made the point that “ physical contact ” as used in section 617 means what it seems to mean: that the vehicles are in direct impact ‘ ‘ with ” each other.

But the holding of Eisenberg was quite the other way to the effect that if car A was in contact with car B and car B was in turn in contact with car 0 the requirement for ‘ ‘ physical contact ’ ’ between cars A and G is satisfied even though there is no contact whatever between cars A and 0.

If this sequence of events can constitute physical contact ”, as the court there held, then portions of the structure of one vehicle, as a hub cap or loose equipment; or of its loose cargo, or ice or other dangerous material left to accumulate on it and falling off, directly and not intermediately causing injury to another vehicle, must necessarily be deemed “ physical contact ”. The cars considered to have been in ‘ ‘ physical contact” in Eisenberg were actually more remote in the prescribed statutory relationship than the contact caused by physical objects coming directly from one car to the other.

Eisenberg greatly extended the effect of the statute and should be overruled. If it is not overruled it should be followed. It is not reasonably distinguishable from this case in which the ‘ ‘ contact ’ ’ was far more direct and immediate than in Eisenberg. Nothing could demonstrate more conclusively the infirmity of Eisenberg than a reading together of the majority and concurring opinions in this present case.

The order should be affirmed.

Judges Burke, Scileppi and Jasen concur with Judge Breitel; Chief Judge Fuld concurs in result in an opinion; Judge Bbegan dissents and votes to affirm in a separate opinion in which Judge Gibson concurs.

Order reversed, without costs, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein. 
      
       For post-Eisenberg eases involving impacts with intermediate vehicles, see Matter of Powers (Continental Ins. Co.) (29 A D 2d 1041); Matter of Shamrock Co. (Mack) (61 Misc 2d 240); Matter of Holad v. MVAIC (53 Misc 2d 952); Matter of Greco (MVAIC) (53 Misc 2d 344).
     