Summary: Part D of the personal auto policy (PAP) has two types of coverages that may be selected to cover physical damage to the insured's auto. These are other than collision coverage (often called comprehensive because of prior policy language) and collision coverage; the insured may, of course, purchase either or both of these coverages. Conflicts between insurers and insureds may arise when only one of these coverages is purchased, with the dispute centering on whether the cause of loss that resulted in damage to the auto was one for which the insured had coverage. Or, the insured may have both types of coverage, but, say, with a higher collision deductible, leading the insured to seek other than collision coverage for a loss in order to maximize the insurance policy's coverage.
This article discusses certain loss situations and court decisions in order to shed some light on the meaning of "collision," or, in other words, just when collision coverage is appropriate as opposed to other than collision coverage. Note that the court cases discussed in this article generally use the term "comprehensive" when analyzing other than collision coverage. The cases span many years but none have been overturned. The current article may be found here.
Topics covered:
Is this a comp or collision loss
|Policy Provisions
Collision in the personal auto policy "means the upset of 'your covered auto' or a 'non-owned auto' (defined terms) or their impact with another vehicle or object."
Other than collision coverage is described by stating that "loss caused by the following is considered other than collision"; this statement is followed by ten listed causes of loss. It is important to note that this is not an exclusive list, that is, causes of loss not in the list may nonetheless fall into this category.
The listed causes of loss are: missiles or falling objects; fire; theft or larceny; explosion or earthquake; windstorm; hail, water, or flood; malicious mischief or vandalism; riot or civil commotion; contact with bird or animal; or breakage of glass. The insured can treat the last item as a collision loss if the breakage of glass is caused by a collision.
For more information on the physical damage causes of loss, see Personal Auto Policy—Part D.
Incidentally, the business auto policy defines collision a bit differently; it means "collision with another object" or "the covered auto's overturn." This represents different wording but not different meanings. For information on this, see Business Auto Form—Physical Damage Coverage.
Couch on Insurance 3d, Sections 156:45 through 156:47 sets out rules of construction for the term "collision." It is said here that collision is defined broadly to mean striking together or striking against. Courts generally follow the dictionary definition or chose a definition in accord with the usual and common meaning of the term. Going by dictionary definitions, collision has been defined as the act of colliding, and imports a striking together or against; the impact or sudden contact of a moving body with an obstruction in the line of motion; striking against something on or along the road; act of one object suddenly coming violently into contact with another in motion or standing; a meeting and mutual striking of two moving bodies or of a moving body and a stationary one; and the act of colliding, a striking together, a violent contact, and implying an impact, the sudden contact of a moving body with an obstruction in its line of motion. However these broad definitions have at times been criticized, and in some situations the contact of an automobile with the surface of the road has not been considered a collision with an object.
Various cases have held that provisions involving collision are to be held most strongly against the insurer so as not to defeat the insured's claim of indemnity. This is crucial, for as you will see in some of the following cases where both sides made a reasonable argument, the case was found for the insured due to the insured being given the benefit of the doubt. As shown above, the definitions that appear on the auto policies are not much more enlightening. However, there are at least two initial rules that may help in determining whether a loss is properly characterized as a collision loss.
First, the insured automobile need not be in motion. Second, the collision need not be with another automobile. Unfortunately, these two rules do not serve as instant and resolute clarification of the issue in every claim situation. As a Kentucky court of appeals noted in Calvert Fire Insurance Company v. Little, 421 S.W.2d 584 (Ky. Ct. App. 1967), ". . . the word 'collision' is susceptible of various constructions." The definition of the term in the auto policy does offer some guidelines by which these various constructions can be made, but enough truly murky loss situations do exist so as to keep the question "what is collision?" open to discussion.
As an example of this uncertain situation, see Fowler v. Canal Ins. Co., 389 S.E.2d 301 (S.C. App. 1990). In this case, a South Carolina court of appeals decided that "the partial overturning and loss of equilibrium of an insured's dump truck constituted an upset of the covered auto," thus putting the loss within the definition of collision as an upset of the covered auto. The truck never actually overturned or upset. For some reason, the truck leaned to the left while unloading a load of sand, with the two right tandems partially off the ground; the insured thought the truck would overturn, but it never did. The South Carolina court decided that there was enough ambiguity, both in the facts of the claim and in the wording of the policy, so that any interpretation of the situation had to be favorable to the insured. Here, a partial upset was as good as a complete upset and so, a collision, by judicial interpretation of the policy definition, occurred.
As a general rule, when the primary or proximate cause of a loss is one that falls under the other than collision category, which subsequently causes a collision loss, the resulting collision damage is covered under other than collision insurance. For example, in Tonkin v. California Ins. Co., 62 N.E.2d 215 (NY Ct. of Appeals 1945), the court held that damage resulting from collision but proximately caused by a fire under the dashboard, was a comprehensive loss. The fire was the cause of loss that set the other cause (the collision) into operation.
Another case involving collision damage resulting from a comprehensive loss is Ness v. National Indem. Co. of Nebraska, 247 F. Supp. 944 (D. Alaska 1965). The insured had purchased only collision coverage for his tractor. The tractor was parked about a block from the Valdez, Alaska, dock when an earthquake registering 8.6 on the Richter scale, with the epicenter near Valdez, caused a seismic sea wave to sweep the port. After the earthquake and wave, the tractor was found 1,000 feet from its original location, upside down, and substantially damaged. The insured argued that the tractor was covered by the collision and upset provisions of the policy. The court declined to follow this approach and found that the insured's loss was not due to collision, but was caused by a comprehensive peril.
In Allison v. Iowa Mut. Ins. Co., 258 S.E.2d 489 (N.C. Ct. App. 1979), a North Carolina court of appeals found that where the proximate cause of damage to a dump truck was the collapse of the bridge on which the truck was being driven, the insured was covered under his comprehensive insurance and coverage for the loss was not excluded as due to collision.
In Bettis v. Wayne County Mut. Ins. Assoc., 447 N.W.2d 569 (Iowa App. 1989), an Iowa court of appeals decided that "transmission damage to a tractor caused by its being towed after an accident was a direct loss resulting from the accident and, thus, was covered under the collision coverage of the policy." The facts of the case were as follows: the insured's tractor was damaged when it hit a culvert and had to be towed into town for repairs. After the tow, it was discovered that the upper and lower pinion shafts had frozen to the gears in the transmission due to towing the tractor without the engine running, thus preventing the transmission from being properly lubricated. Wayne County Mutual refused to pay the transmission repair bill, arguing that the damage was not a direct result of the collision.
The Iowa court stated that direct loss is to be interpreted as the immediate or proximate cause of loss, that "an insured event is considered the proximate cause of loss if the event sets in motion other causes which, through an unbroken sequence and connection, result in the loss. Thus, we look not necessarily to the last act in the chain of events, but rather to the predominant cause which sets in motion the chain of events causing the loss." The transmission loss in this case, decided the court, was the result of a chain of events set in motion by the collision, an insured event; therefore, the transmission damage was covered by the collision insurance.
An illustration of the reverse situation, i.e., where the initial or proximate cause of a loss is collision but damage seems to be due to something other than the initial impact, is New Hampshire Ins. Co. v. Frisby, 522 S.W.2d 418 (Ark. 1975). In this case, a bulldozer struck a valve that protruded above ground. The resulting loss, however, was a cracked engine block and radiator, caused by freezing, and the insurer denied coverage on the grounds that the loss was not directly caused by collision with an object.
The protruding valve was connected to a pressurized transmission line containing liquid propane. When the bulldozer collided with the valve, the transmission line ruptured and the gas escaped, covering the bulldozer. Upon being exposed to the atmosphere, the gas froze and covered the bulldozer with ice. The Arkansas Supreme Court rejected the insurer's contention that the loss was not caused by collision. The court held that the initiating cause of the loss, and that which set in motion the events leading to damage, was the collision with the valve.
Another example is Jones v. Allstate Ins. Co., No. 01-A-01-9009CV00333, 1991 WL 11530 (Tenn. Ct. App. Feb. 6, 1991). Here, the insured swerved off the road to avoid an oncoming truck, jumped a two foot deep ditch, and came down hard on the other side. The insured checked the underside of the car but saw no damage and drove on. Awhile later, smoke was billowing from under the hood and the insured stopped. It turned out that jumping the ditch had caused a tear in the radiator which then lost its fluid, which, in turn, caused engine damage when the insured drove the car. The insured claimed this as a collision loss but the insurer did not agree. The Tennessee court said the damage was caused by the huge jolt that the car received when it jumped the ditch and impacted with the ground; this was a collision by definition; therefore, the damage was caused by a collision.
The case of Northwest Agricultural Cooperative Assoc. v. Continental Ins. Co., 769 P.2d 218 (Ore. App. 1989) offers another example. In this case, the insured's vehicle was involved in a freeway accident. The collision started a fire that totally destroyed the vehicle. The insured had a policy that covered collision losses and another policy that applied to loss due to specified perils. The insurer with the latter policy denied coverage, saying that the proximate cause of loss was the collision. When the case got to the appeals court, the court said that the policy covered loss due to fire, and that a fire is a fire regardless of its cause. Therefore, Continental's policy applied to the loss and it would share in the loss with the insurer that covered collision losses.
Of course, a finding that subsequent damage was caused by the initial collision is not always favorable to the insured. In Boecker v. Aetna Cas. & Surety Co., 281 S.W.2d 561 (Mo. App. 1955), the insured carried only comprehensive coverage. The insured's car was parked in a state park on a gravel surface. While trying to drive the car away on the sloping, gravel surface, the car slipped sideways and collided with a tree. Apparently, no damage was done by this collision, although it was dark and difficult to see. The insured again tried to move the car and this time scraped the car in a continuous line along the right side. He argued that the proximate cause of the loss was not the initial collision, but was instead the application of power after the car and the tree were already in contact. In finding for the insurer, the court reasoned that the loss would not have occurred in the absence of the collision, that the damage was a natural consequence of the collision, and that it was the last link in the chain of circumstances beginning with the collision.
And, a Pennsylvania court in Kramer v. Ohio Farmers Ins. Co., 42 A.2d 194 (Pa. Super. 1945) said essentially that any impact with another object sufficient to cause damage is a collision. The insured was driving his car over a high-crowned road with stones embedded in the crown. When the oil pan of his car struck a stone, oil drained out of the motor causing the engine to be irreparably damaged. The court found this to be a collision loss and the insured had purchased only comprehensive coverage.
In many instances, a determination of whether there has indeed been a collision that is covered by the policy involves questions as to whether there was an object that was struck and the way in which it was struck.
Courts have generally interpreted the word "object" as a broad and all-inclusive term, but disagreements have arisen over whether contact of an automobile with, for example, a roadbed amounts to collision. The majority rule appears to be that the roadbed is an object, so that damaging contact with it is covered as a collision loss. Of course, the insurer could always clarify this point by defining collision to not include striking the roadbed.
The Empire Fire and Marine Insurance Company did just that in one of its auto policies as noted in Simpsonville Wrecker Service, Inc. v. Empire Fire and Marine Ins. Co., 793 S.W.2d 825 (Ky. App. 1989). The insurer defined collision as "the accidental collision of the vehicle with any other vehicle or object" and then went on to say that "the striking of curbing or any portion of the roadbed or the striking of rails or ties of street … shall not be deemed a collision."
It also seems that the majority of courts require no particular degree of violence in order for an impact to be considered a collision, so long as damage is inflicted by the contact. For example, in Nutchey v. Three R's Trucking Co., 674 S.W.2d 928 (Tex. App. 1984), a Texas court of appeals held that the passage of a tractor-trailer over a three to five-inch depression in the road, causing damage to the vehicle, was a collision within the meaning of the policy. In coming to this conclusion, the court referred to several prior cases, including Wood v. Southern Cas. Co., 270 S.W.2d 1055 (Tex. App 1925), another Texas appeals court decision. The Wood court said: "Without entering into an extended discussion of what has been defined and held to be an 'object' and a 'collision,' we will say that we think when the car ran into the rut and came in contact with the banks of same, causing the driver to lose control of the car, and it skidded into an adjacent ditch and turned over, that under the great weight of authority it must be held that the rut was an 'object' and that the car collided with same, as well as collided with the sides and bottom of the ditch into which it ran by reason of the 'collision' with the rut." The Nutchey court also referred to Employers Liability Assurance Corp. v. Groninger & King, 299 S.W.2d 175 (Tex. App. 1956) in which the falling of a tractor off a truck constituted a collision by the tractor with an object (i.e., the road bed).
Another case involving contact with a hole in the road is Welch v. Western Cas. and Surety Co., 567 S.W.2d 743 (Mo. App. 1978). The Missouri court found that the dump truck's collapse as a result of contact with a deep, wide hole was a collision. The hole extended completely across an access road, and the frame of the truck broke on both sides, directly behind the cab. The question at trial was whether the damage was caused by collision or mechanical breakdown of the frame. The frame had been extended to add a dump truck body, and the insurer argued that the work was improperly done and that the frame was unduly rigid at the point of extension. There was also evidence that the frame had broken at least once before and that it had been badly repaired, so that the frame was already buckling before the date of loss. However, the court stated that collision means any "striking together" or "striking against" and that in Missouri, the word "collision" "connotes no particular degree of force." Furthermore, the court pointed to previous authority, including the Wood case, for the proposition that a chasm, hole, rut, or other declivity in the roadway can be considered another object. The court did point out that it was not suggesting that every pothole in the road is another object, implying that it was the size and depth of this particular hole (20 feet across and 18 inches deep) that gave it the requisite character. Finally, the court disposed of the insurer's argument that the mechanical failure exclusion barred recovery, stating that there was sufficient evidence to show that the proximate cause of the loss was the collision even though there was evidence that the frame had been weakened.
As another example, there is the case of Loftis v. Vesta Companies, 686 N.E.2d 383 (Ill. App. 3d Dist. 1997); here, damage from traveling over a pothole was deemed to be collision damage by the court. The insured drove over a pothole and sustained $5,534 in damages; the insurer denied coverage. The appeals court said that the insured's version that this was collision with another object was a reasonable interpretation of the policy language. The court also said that the insurer's view that being jostled by running over a pothole was not a collision was also reasonable. And of course, because both interpretations were reasonable, the policy language was ambiguous and the insured got the benefit of the doubt.
Courts sometimes take into consideration whether the driver had driven the road before and was familiar with road conditions. For example, the court said that the driver's familiarity with road conditions was a significant factor in holding for the insurer in the Calvert Fire Ins. Co. case that was noted earlier. In Calvert, the driver had previously passed over a drainage ditch many times without incident, so the Kentucky appeals court found that the truck's impact with the ditch was not accidental or unforeseen by the driver and could not be a collision loss. The insured was a coal trucker under contract with the mine owner. At the time of the loss the driver had been driving the owner's dirt road for two months. The drainage ditch, which extended over the road, was 8 to 10 inches deep and from 10 inches to two feet wide. The insured had driven the road on three to four round trips a day. On the day when his truck was damaged, he passed over the ditch while loaded with 20 tons of coal and his brakes failed. He lost control of the truck and he jumped from the cab while the truck ran off the road into a coal tipple. After the accident, the insured found his right rear wheels lying in the road about forty to fifty feet downhill from the ditch; the housing of the rear axles had broken and damaged the brakeline.
The insured argued that all the damages to his truck were caused by the truck's collision with the ditch. The insurer conceded that the damages arising from the impact with the coal tipple were covered, but disputed coverage for the rest of the damage. The court, finding that the impact with the drainage ditch was not a collision, said that the "most reasonable and logical" definition of collision that it had come across was to be found in the following excerpt from Appleman, Insurance Law and Practice, Vol. 5, sec. 3201: "A 'collision' has, therefore, been held to cover all unforeseen, accidental impacts with any kind of an object, usually meaning the sudden contact of a moving body with an obstruction in its line of motion. It means the act of two objects striking together, importing violence in such meeting. Such object with which the automobile collides may be either moving or standing; nor does it matter which of the objects are in motion. Both of them need not be in motion for recovery to be had."
Certain words in this passage struck the court as significant. It referred to "unforeseen," "accidental," "sudden," and "violence" for the conclusion that a collision involves "an impact of such force as normally would be calculated to cause damage to the vehicle." Since the driver was fully aware of the ditch and had been over it many times before, the court found that "the impact with the ditch was not unforeseen, accidental, sudden or violent" nor was it an impact that normally would cause damage, as shown by the many times the driver had passed over without incident.
Of course, damage need not result from contact with a depression or elevation in the road in order for the loss to be considered a collision loss; any part of the highway may be considered an object (this would also apply to bridge abutments, guard rails, embankments, curbs, and the like). For example, in Canal Ins. Co. v. Adams, 37 S.W.3d 677 (Ark. App. 2001), the court decided that damage caused by crossing railroad tracks was collision damage since the tracks were an object.
As another example of this reasoning, the Supreme Court of Louisiana, in Albritton v. Fireman's Fund Ins. Co., 70 So. 2d 111 (La. 1953) held that impact with the regular roadbed, even though caused by a wheel coming off the insured automobile, was covered by the collision insuring clause. A Texas court of appeals made a similar decision in Home Service Cas. Ins. Co. v. Barry, 277 S.W.2d 280 (Tex. App. 1955).
As another example, in the case of Payne v. Western Cas. & Surety Co., 379 S.W.2d 209 (Mo. App. 1964), a tractor-trailer was wrecked when it slipped off the highway during a rainy day onto a very soft shoulder, into which it sank to an abrupt stop. The weight of the load, combined with the abrupt stop, caused the trailer to be seriously damaged by wrenching, twisting, and smashing. The Missouri court of appeals construed "collision with another object" to include an object off the regular paved roadway—such as a soft shoulder. The court said: "The majority of courts, often noting there is no proof that the word 'collision' has some commonly known and generally recognized restrictive meaning in insurance contracts take the viewpoint that the word 'collision' should be defined broadly and in its dictionary sense to mean 'striking together' or 'striking against,' thus including every contact with any part of the highway."
The court also addressed the meaning of "object." The term is not to be narrowly construed as confined to objects similar to an automobile or another vehicle, the court noted; it means anything that is tangible and visible.
Incidentally, the court also addressed the issue of whether a specific level of impact—i.e., one that is violent—is required for an impact to be characterized as a collision. It stated that "violent is a relative term. No particular degree of force is required to constitute violence. Violence is broadly defined in Webster's New International Dictionary, 2d Ed., as 'the exertion of any physical force considered with reference to its effect on another than the agent.'" On the other hand, with reference to this degree of violence theme, see Sawyer v. Shelter Ins. Co., 702 So. 2d 29 (La. App. 1997). The appeals court in that case said that collision called for a violent contact with an object, whether moving or stationary. Here, the wheels of a vehicle came into contact with a high cornrow and could not roll over it. That caused the wheels to slip and spin in the mud, damaging the vehicle. The insured said the vehicle collided with the cornrow, but the court did not see a collision since there was no violent impact of the vehicle with an object.
Not every court has found that contact with the roadbed or ground surface amounts to a collision. Comprehensive coverage for the falling of a truck was found in City Coal & Supply Co. v. American Auto. Ins. Co., 133 N.E.2d 415 (Oh. Ct. App. 1954). The truck was backed close to the edge of an excavation and the earth at the edge crumbled, dropping the rear of the truck into the excavation. The truck did not roll over, the front wheels being suspended at the top of the excavation, and the Ohio court of appeals held that the damage was covered under the comprehensive insuring agreement. This case also throws light on the question of whether the expense of removing the vehicle from the scene of the accident should be covered, since it can be considerably more expensive than the cost of repairing the vehicle. The appeals court held specifically that both costs were covered.
A question is sometimes raised as to whether water can be considered an object within the meaning of the collision insuring agreement. The weight of legal opinion is that water is an object within the meaning of the law of accident insurance policies, and so, an automobile that runs into water can be said to collide with an object. Some court decisions dealing with water loss as collision are as follows.
The Supreme Court of North Carolina held, in Morton v. Blue Ridge Ins. Co., 121 S.E.2d 716 (NC 1961), that damage was from collision when a car rolled into a canal as its owner was launching his boat from a boat trailer; this case was later cited with approval by a 1968 Georgia court of appeals decision, Tuten v. First of Georgia Ins. Co., 160 S.E.2d 903 (Ga. Ct. App. 1968). The Morton court, finding that water was an object within the meaning of the insurance coverage, also found that a car started by any means, whether by an external force, by gravity, or by brake failure, that runs uncontrolled against any object in its way "is in collision with such object." In Providence Washington Ins. Co. v. Proffitt, 239 S.W.2d 379 (Tex. 1951), the Texas Supreme Court found coverage under collision insurance where the car was swept off a causeway by river flood waters. The court ruled that the force of the flood waters against the car was a collision.
In a somewhat contradictory vein is Saul v. St. Paul-Mercury Indem. Co., 250 P.2d 819 (Kan. 1952). Here, the insured's stationary truck was damaged by rising flood waters. The court reasoned that even if it could be assumed that contact of rising waters with a stationary truck could be a collision, the comprehensive clause expressly excluded such collision coverage by stating that flood or water is not considered loss caused by collision. The court found that the insured would have been protected against this loss if he had purchased comprehensive coverage, but collision coverage did not apply.
This last case points out a complication in the issue in that the other than collision coverage does include loss caused by water or flood; so, an insurer could be justified in claiming a water loss is not a collision loss. Of course, courts can look at claims and insurance coverage in ways that do not always agree with an insurer's position. Some examples are as follows.
In Harris v. Allstate Ins. Co., 127 N.E.2d 816 (NY Ct. App. 1955), the insured lost control of his car while driving through a deep puddle during a heavy rain, the car swerving and going over a bank. New York's highest court held that this was a collision and not a comprehensive loss. The Supreme Court of Arkansas in Washington Fire & Marine Ins. Co. v. Ryburn, 311 S.W.2d 302 (Ark. 1958) found that the insured could recover for water damage even though he did not have comprehensive coverage. The insured's truck hit a slick place in the highway and the driver lost control, running off the highway and hitting a small hill. The truck bounced off the hill and plunged into a drainage ditch, where it settled in water that completely submerged the motor. There was damage to the car body and the radiator, and the motor was almost completely ruined; the water damage to the motor constituted most of the claim for damages. The insurer argued that coverage would have fallen under comprehensive insurance, but the insured had bought only collision coverage. The insurer relied on policy language found in the comprehensive section of the policy that declared that water and flood loss "shall not be deemed loss caused by collision or upset." The court rejected the application of this language to the collision section of the policy, saying that the insurer could have added the same language to the collision section if it had meant to limit coverage for water damage to comprehensive coverage only.
In support of its position, the Arkansas court took note of a case from Oregon—Ringo v. Auto. Ins. Co. of Hartford, 22 P.2d 887 (Ore. 1933)—and the legal comment quoted in that case. This quote is suggested at the beginning of this section: "the weight of opinion is that water and land are objects within the meaning of the law of accident insurance policies, and an auto that runs into either or both collides with an object" (Simpson on The Law Relating to Automobile Insurance 2d).
The insuring agreement of the personal auto policy provides that loss caused by missiles or falling objects is considered an other than collision loss. But, as seen above in the loss by water discussion, this can be a complication if the insured has chosen either collision coverage or other than collision coverage, but not both. The cases that follow focus on this issue.
In Concordia Fire Ins. Co. v. Smith, 237 P.2d 631 (Okla. 1951), the insured automobile and a truck crossed a bridge in opposing traffic lanes. The right rear wheel of the truck struck the side of the bridge. This impact threw the rear of the truck to the side and into the air. The left rear wheel struck the insured automobile while descending. The Oklahoma Supreme Court held that the truck was not a falling object because it was impelled by the impact with the bridge, and that damage to the insured automobile was caused by collision and was not covered under the comprehensive section of the policy.
A New York appellate court in Pohl v. Commercial Ins. Co. of Newark, 232 N.Y.S.2d 92 (NY App. Ct. 1962) held that a truck wheel and tire that came off another vehicle and hurtled through the air about three feet off the ground was a falling object, and that damage so caused was covered by the comprehensive insuring clause. This is a decision in contrast with the Concordia Fire case, and the New York court also distinguished this case from Boenzle v. United States Fidelity & Guaranty Co., 258 S.W.2d 938 (Mo. Ct. App. 1953), decided by a Missouri appeals court, in which dual wheels from a tractor-trailer rolled into an insured automobile and caused collision damage. (Further discussion of the Boenzle case is provided later in this article.)
These court cases do not fully settle the question of what constitutes damage by falling object, but they do point to the rather trite conclusion that each case has to be decided based on the facts particular to the case itself. For example, it would seem reasonable to suggest that if an object hits the ground and then rolls into the insured's car causing damage, that is a collision. But see Getzoff v. Piedmont Fire Ins. Co., 122 N.Y.S.2d 43 (Sup. Ct. App. Div. 1953) wherein the court held that a stone that fell from a truck to the ground, rolled under an insured auto, struck the car and damaged it, was damage due to a falling object.
Under another aspect of this topic, in the Ness case—discussed in the proximate cause part of this article—the court made a distinction between collisions caused by accidents and by natural catastrophes. The former would be considered a collision loss, while the latter would not be so considered. Coverage for the latter might very well be available under such other than collision perils as falling objects or even wind. For example, see the case of Watkins v. American Security Ins. Co., 220 S.E.2d 304 (Ga. Ct. App. 1973). In this case, the insured's car was damaged when it was struck by a chimney that had blown off his house due to a strong wind; the insured had collision insurance only. The court held that the sole cause of the damage was wind, that wind was not a peril insured against under collision coverage, and that the damage was not caused by a collision. The Georgia court distinguished the insured's situation from a case where a tree or other object falls onto a car because of an accident caused by human, rather than natural forces, such as when a tree is being cut down. As an example, see Jones v. Virginia Surety Co., 401 P.2d 570 (Mont. 1965) wherein the Montana Supreme Court held that there was a collision loss when the insured's truck was damaged when a log, felled by a logging contractor, hit the truck as the insured was driving down the road.
In Fisher v. California Ins. Co., 388 P.2d 441 (Ore. 1964), the Oregon Supreme Court decided that the insured's car was not damaged by a collision when a heavy wind blew a tree down onto it. The court took the position that accidents involving "acts of God" are not collisions.
A federal district court, applying Pennsylvania law, found that damage to several automobiles caused by the collapse of a roof and garage walls during a storm did not constitute collision damage. In Jacobs v. Camden Fire Ins. Assoc., 135 F. Supp. 837 (E.D. Pa. 1955), the insured carried collision coverage, but had not purchased comprehensive insurance. The court decided that the cars had been damaged by falling objects, that the damage had been caused by the elements of nature, that the collapse of the roof and walls was not a collision or upset, and, therefore, collision coverage was not applicable.
A Texas court of appeals, in Great American Ins. Co. v. Lane, 398 S.W.2d 592 (Tex. Civ. App. 1966), found that a truck was covered by its collision insurance when a dragline bucket fell on the truck while it was being loaded with dirt. The court rejected the insurer's contention that the insured, by selecting only collision coverage, had chosen not to cover his vehicle for damage caused by falling objects. In this case, the court noted that loss by falling objects was "not named as a specific, separate, segregated type of coverage," and thus the insured was not given the type of choice that the insurer suggested. The court took the position that the purpose of the provision that loss by certain perils is not considered a collision is to enlarge the insurer's liability under comprehensive coverage, not to restrict coverage under collision insurance.
Another Texas case upholding collision coverage for damage by a falling object is Shillings v. Michigan Millers Mut. Ins. Co., 536 S.W.2d 627 (Tex. Civ. App. 1976) in which the court found that damage caused by a tree falling on a Caterpillar tractor was covered as a collision loss under an inland marine policy. The tractor was used for clearing trees and had a cutting blade attached for that purpose. The trees normally fell away from the tractor, but on this occasion, the tree was hollow and fell onto the vehicle.
When objects are thrown against or fly into the bottom of an automobile and the insured is unaware of the extent of the damage and drives on, causing further damage, it generally appears that: (1) such accidents can be covered under either comprehensive insurance as missile damage or, if there is only collision coverage, under collision; (2) the entire damage, including resulting damage to the motor, is covered; and (3) whether the insured breached the duty to protect the vehicle from further damage by driving on after first contact is a question of fact for the jury to decide. This means, for practical purposes, that this condition will void coverage only in cases of obvious or flagrant neglect by the insured.
As an example of this breach of duty item, there was no breach of care by the insured in Harris v. Preferred Fire Ins. Co., 1987 Automobile Law Reports 28, CCH Insurance Law Reports, when a rock thrown from the roadbed by the wheels of the automobile broke the oil pan, resulting in damage to the crankshaft and rods from loss of oil. The Tennessee Court of Appeals held this damage to be covered by the insured's comprehensive insurance as missile damage. Nor was there any breach, under similar facts, in the later case of Runner v. Calvert Fire Ins. Co., 76 S.E.2d 244 (W. Va. Ct. App. 1953). The court held that minor impacts are common and the question of whether the insured acted prudently was for the jury to decide. It also found that the subsequent damage to the motor was covered, even though it actually occurred some time after the impact with the missile. Similarly, a Texas appeals court held that the ensuing loss from the car running without oil was covered after the car struck a loose rock and suffered collision damage in Calvert Fire Ins. Co. v. Koenig, 259 S.W.2d 574 (Tex. Ct. App. 1953).
In contrast to these examples is a case involving obvious neglect, Calvert Fire Ins. Co. v. Robinson, 266 S.W.2d 326 (Ky. Ct. App. 1954). Here the insured saw a large rock thrown under his car and heard it strike, but did not stop. After he had driven two miles, the motor stopped and the insured, instead of examining the automobile, had it pushed in gear for three miles. The Kentucky appeals court held that the insured had not exercised ordinary prudence and the ensuing damage to the motor was not covered.
In another vein, not all cases involving loss by missiles result in breach of duty disputes over subsequent motor damage; but, they may involve other types of ensuing loss and clarify what a court thinks a missile is.
In Guenther v. American Indem. Co., 17 N.W.2d 570 (Wisc. 1945), a large piece of ice became detached from a moving Greyhound bus. It struck the insured automobile, which was being driven in the opposite direction, causing the insured to lose control of the automobile. The car went off the road and struck an embankment. The insurer claimed that the damages resulted from collision. The insurer also argued that even if the ice could be considered a missile, coverage should be limited to damages caused by its immediate impact. The Wisconsin Supreme Court held the entire damage—both from the impact and from the subsequent upset—was covered by the comprehensive insuring clause. The court reasoned that "the conclusion appears to us to be inevitable that certain types of collision, namely those between a missile and an automobile, are covered by the policy. In this insurance policy we consider that the term 'collision' relates to (1) impact between the insured automobile and another vehicle or object moving upon the highway, or to (2) impact between the insured automobile and a stationary object or obstacle on or off the highway. We consider that it was the intent of the policy to provide coverage in cases where an object is hurled against or dropped upon the automobile and this regardless of the size of the object…The fact that it is hurled or dropped proves that it is capable of being a missile."
The Wisconsin court reached these conclusions based on a definition of "missile" very similar to that used in Boenzle v. United States Fidelity & Guaranty Co., 258 S.W.2d 938 (Mo. Ct. App. 1953), yet the Boenzle court came to a very different conclusion. In Boenzle, the insured's wife was driving the family car uphill when she saw a tractor-trailer approaching from the opposite direction. She saw it tip and thought that it was turning over, but it dropped down suddenly and the wheels from the left rear side came off and rolled into her car. Shortly after this impact, the trailer also struck the automobile, causing additional damage. The tractor-trailer eventually stopped 300 feet beyond the insured automobile. The insureds had comprehensive coverage only. The insurer argued that it was liable only for glass breakage under the comprehensive insurance provision that "breakage of glass and loss by missiles…shall not be deemed loss caused by collision or upset." The Missouri appeals court held that both the wheels and the trailer were objects within the meaning of collision, and that they were not missiles. Only the glass breakage was covered.
The court reasoned that the word "object" has a very general scope, but that "missile" has a much more restricted meaning, stating: "In ordinary everyday acceptation the word 'missile' comprehends an object which is intentionally thrown, hurled or projected, or which if set in motion unintentionally, is nevertheless designed for the purpose of being thrown, hurled, or projected, or readily adaptable to or customarily associated with such use. It excludes objects which are set in motion by an act of God, accident, casualty or fortuitous circumstance unless such objects are designed for, suitable or readily adaptable to, or commonly associated with the purpose and use of being thrown, hurled or projected." The court further elaborated, saying that "It excludes objects thrown, hurled or projected by the chance breakdown or failure of a mechanical device or instrumentality which is not designed or built for the purpose of throwing, hurling or projecting objects…."
A later case analyzing the meaning of the term has unusual facts. In Beaulieu v. Minnehoma Ins. Co., 171 N.W.2d 348 (Wisc. 1969), the Wisconsin Supreme Court determined that a parked mobile home, used solely as housing, suffered missile damage and was covered by the insured's comprehensive coverage when a car that was passing on the highway struck a parked automobile and hurled it into the mobile home. The insured had purchased comprehensive coverage, but not collision coverage because he never intended to move the mobile home. The comprehensive coverage provision was standard and stated that loss caused by missiles was not deemed loss caused by collision. The court quoted Webster's New International Dictionary, 3d Ed., for a definition of "missile" as "a weapon or other object thrown or projected…." and also noted the broad definition of "collision." The court concluded that the accident under consideration was a collision, but also concluded, as it had previously in the Guenther case, that "certain types of collision, namely, those between a missile and a mobile home, are covered by the comprehensive coverage provision of the policy." Otherwise, the court reasoned, the provision for the coverage of damage by missiles would be meaningless.
Disputes between insurers and insureds over claims brought under coverage for vandalism or malicious mischief involve questions of what degree of wrongful intent is required for coverage to apply. Some courts have found that for vandalism coverage, the specific intent to destroy the particular item of property is not required; instead, coverage is granted if the damage resulted from an intentionally wrongful act by a third party. This is in keeping with the definition of "vandalism" that is found in Black's Law Dictionary; that is, "willful or ignorant destruction of property." The meaning of the term "malicious mischief" has come before the courts less frequently, but it seems clear that only willful and intentional wrongdoing is covered. This—like the term "vandalism"—is in keeping with the legal definition of malicious mischief which is "willful destruction of property from actual ill will or resentment towards its owner or possessor. A reckless disregard for another's property is generally not sufficient to constitute malicious mischief".
Incidentally, for more information on the concept of vandalism and malicious mischief as causes of loss, see Vandalism as a Cause of Loss.
Another point raised by cases involving claims under vandalism or malicious mischief coverage is whether the insured must carry the burden of proving that the loss was caused as claimed, or whether the insurer has the burden of disproving the insured's claim. For example, if the insurer attributes the loss to a collision, does it have the burden of proof in establishing that the loss was not caused by vandalism or malicious mischief?
All these issues are explored in the following cases.
In Rea v. Motors Ins. Corp., 144 P.2d 676 (N.M. 1944), a car that was parked on the street was damaged by a drunken driver. The insured claimed that this constituted malicious mischief, that it was the proximate cause of his loss, and that comprehensive coverage should apply. The New Mexico Supreme Court said that this was a collision—because malicious mischief implies an intentional and malicious act, an intent to injure.
In Unkelsbee v. Homestead Fire Ins. Co., 41 A.2d 168 (D.C. App. 1945), the insured had left his automobile parked on a hill. A small child got in, released the brakes and attempted to steer the automobile. It rolled down the hill and collided with another car. The District of Columbia municipal court of appeals held this loss to be proximately caused by vandalism and covered under comprehensive physical damage insurance.
The Massachusetts case of Rich v. United Mut. Fire Ins. Co., 102 N.E.2d 431 (Mass. Sup. Judicial Ct. 1951) is contrary to the holding in Unkelsbee. Here the automobile was also damaged by rolling down a hill after it had been parked for a few hours. The insured suspected that children had tampered with the car, but could not prove it. The court held this to be a collision loss and not covered under the comprehensive section, primarily because the insured had failed to prove otherwise. It implied, however, that in Massachusetts the term "vandalism" means intentional damage and does not include the mischievous act of a child.
A substantially similar case is Penza v. Equitable Fire & Marine Ins. Co., 137 A.2d 530 (R.I. 1958), decided by the Supreme Court of Rhode Island. The insured parked his car near his home facing downhill. He put the car in reverse gear and put on the emergency brake, took the key with him, but left the car unlocked. There were a number of small children playing nearby. About an hour and a half later, he heard a neighbor downstairs cry out: "The kids, the kids, your car." He ran out and found his car against a house at the bottom of the hill. The car was in neutral and the brake had been released. Without much elaboration, the court found that there was no evidence of malicious mischief or vandalism, the implication again being that wrongful intent must be proved.
In another case involving damage to a parked car, Hurt v. Merchants & Manufacturers Ins. Co., 221 S.W.2d 808 (Tenn. 1949), the car was found with the rear fender, bumper and tail light damaged, but no witnesses could be found. The insured claimed that the insurance company had the burden of proving that the damage was due to collision. The Tennessee Supreme Court rejected this position and held that there was sufficient evidence that the loss was caused by collision, and hence there was no coverage under the insured's comprehensive insurance.
In a case that cited Unkelsbee, the Alabama Supreme Court held that the insured could recover for vandalism damage in Great American Ins. Co. v. Dedmon, 70 So. 2d 421 (Ala. 1953). The insured's car was wrecked by his mentally unstable twenty-year-old son. The son, while drunk, broke into the locked car without permission and drove it at high speed until the accident. The court, adopting the Unkelsbee definition of vandalism as being "any unusual destruction wrought in the doing of a wrongful act," held the loss covered under the insured's comprehensive insurance.
A Louisiana court of appeals took the opposite view in Ducote v. United States Fidelity & Guaranty Co., 125 So. 2d 176 (La. Ct. App. 1960). One of the insured's trucks was taken by an intoxicated employee while the business was closed. The employee drove into the back of a parked car and seriously damaged the truck. The court ruled that there was no element of malicious mischief or vandalism because there was no evidence that the employee intended to damage or destroy the truck or that he drove it in a manner to indicate such intent. The court also ruled out coverage for theft because there was no intent on the part of the employee to permanently deprive the owner of the truck. The appeals court referred to the Unkelsbee and Dedmon cases but refused to follow them.
Similarly, a Missouri court of appeals found that the owner of a car that was damaged when struck by another car whose occupants were fleeing the police could not recover for malicious mischief. The insured had comprehensive insurance, but was not covered for collision, in Cruse v. Government Employees Ins. Co., 391 S.W.2d 1 (Mo. Ct. App. 1965). The court found that the insured's car was struck unintentionally, accidentally, and that the accident was a collision. The court said: "We believe that an act to constitute malicious mischief must be done willfully and intentionally. The intent does not have to against one particular and certain object. The perpetrator may or may not know the owner of the object struck, but he must do the act on purpose. Herein lies the malice."
The Minnesota Supreme Court found that the insured's car had been vandalized in the case of O'Connor v. Schwartz, 229 N.W.2d 511 (Minn. 1975). Here, the insured left his car with Schwartz for body and painting repairs, only to receive it back with a damaged engine. An auto mechanic testified that he had tuned the engine, which was in good condition at the time, and turned the car over to Schwartz. The mechanic said that the engine had been damaged, probably due to extreme overheating without proper lubrication, apparently when someone unknown drove the car into deep mud and raced the engine while trying to get it out. The trial court found that the cause of the damage was "malicious mischief and vandalism" occurring during unauthorized use of the car while in Schwartz's possession. In response, the insurer argued that the evidence was insufficient to support the trial court's findings, and that the court should have found that the damage was a "mechanical breakdown or failure" expressly excluded from coverage. The court stated that since the loss was "caused other than by collision," there was a presumption that the insured had coverage "unless defendant insurance company sustained its burden to prove its affirmative defense that the loss was due to mechanical 'breakdown or failure.'" The exclusion involved included the same language as in the PAP, stating that the insurer would not pay for damage due and confined to mechanical breakdown or failure, and the court found that the insurer failed to meet its burden of proof.
In McKinney v. Educator & Executive Ins., Inc., 569 S.W.2d 829 (Tenn. Ct. App. 1977), a Tennessee court of appeals held that the insured could not recover under his comprehensive policy for malicious mischief or theft when the evidence showed that another person, while using the car with permission for the stated purpose of determining whether he wished to buy it, used it for drag racing and caused serious engine damage by driving at excessive speed. The trial court, in finding for the insurer, had quoted the following language from an earlier Texas case, Imperial Cas. v. Terry, 451 S.W.2d 303 (Tex. Ct. App. 1970): " Regardless of how careless, negligent or illegal an act might be, it is not malicious mischief absent evidence that the act was motivated by malice toward the property or its owner, i.e., by fixed intent to cause injury to specific property."
In the Imperial Casualty case, the insured tried to recover for damage to a truck motor that was damaged by the presence of a foreign substance in the lubricating system. The jury found that the truck had been damaged by malicious mischief and not by wear and tear, and the insurer appealed. The court of appeals reversed the judgment. It held that "it is the insured's burden of proving the essential elements of malicious mischief." The truck driver did not testify at trial. The appeals court noted that there was no evidence as to the activity in which the truck had been engaged, where it had been, or what conditions had preceded the breakdown, and there was no direct evidence as to how, when, or over what period of time the foreign substance got into the lubricating system. Although the owner testified, stating that the oil had just been changed before the trip during which the breakdown occurred, that the oil was changed every 6,000 miles, and that the truck had traveled about 1,800 miles after servicing when the breakdown took place, there were serious gaps in the evidence presented. The court found that the insured had not met his burden of proving his allegation by a preponderance of the evidence.
Another Texas appeals court case involving dirt in the lubricating system, this time in the insured's favor, is Hunter v. National County Mut. Fire Ins. Co., 687 S.W.2d 110 (Tex. Ct. App. 1985). The insured's diesel truck was insured for vandalism and malicious mischief when the engine failed. Witnesses testified that the truck was being used in a very dusty location and that it became immobile in a dirt pit and could not be driven out. The insurer's experts testified that the engine damage was caused by an improperly maintained air filter. The insured's experts disagreed, testifying that the loss was caused by dirt entering directly through the oil filler pipe and producing abrasion of all engine parts lubricated by oil. The jury found for the insured, but the trial judge granted judgment for the insurer notwithstanding the verdict, and the insured appealed. The appeals court, adopting the position of the insured's experts, found that the sudden appearance, in a short time, of a large quantity of dirt directly into the lubricating oil was direct evidence that the dirt entered through the oil filler tube. This evidence, and the experts' testimony that such an amount of dirt could only have been introduced by a person, was enough for the court to infer that the "human agency acted 'deliberately and with malicious intent,' the legal essence of vandalism and malicious mischief."
To support its position, the court discussed an earlier case from Massachusetts, Pintsopolous v. Home Insurance Co., 166 N.E.2d 559 (Mass. Sup. Judicial Ct. 1960). The Massachusetts court found that the burden of proving the vandalism claim was on the insured, and that the insured had met the burden through credible evidence. In this case, the motor of a bulldozer was damaged by sand or dirt less than two weeks after purchase. It was not proved at the trial how sand got into the motor, but the court apparently accepted expert testimony that it could not have been sucked in through the air intake. A quart of dirt or sand was found in the oil. Further, there was evidence that there was animosity at the time the vehicle was purchased at auction. The court found that the jury could conclude that someone had placed the sand there—hence, vandalism occurred and the insured was covered by the comprehensive insurance on the tractor.
Cases dealing with a possible windstorm loss generally hold that, to recover damages due to a windstorm, the wind must be the efficient and proximate cause of the damages. But, this leads to the principle problem with claims involving windstorm damage, which is establishing the facts. In most cases in which the courts believed that damage was actually caused by the force of wind, losses were held covered by comprehensive insurance, or some other form of insurance protecting against windstorm. However, at least two cases have held that the loss was caused by collision because there was no satisfactory evidence of wind damage.
In the case of Matthews v. Shelby Mutual Plate Glass & Cas. Co., 46 N.E.2d 473 (Ohio Ct. App. 1939), the insured claimed that his car, which had been parked at the top of a hill, had been blown down the hill by a high wind. The Ohio appeals court held the loss caused by collision. A similar case, decided by a Georgia court of appeals, is McClelland v. Northwestern Fire and Marine Insurance Co., 86 S.E.2d 729 (Ga. App. 1955). The insured maintained that his automobile had been damaged by wind which rolled the car out of a carport and down a hill into a tree. The wind on the day of the accident was described as a moderate breeze—between 18 and 23 miles per hour. The court held that this was a collision loss and not due to windstorm.
On the other hand, there are the cases in which wind damage was held covered by comprehensive insurance and not by collision. In the Oklahoma case of Shirey v. Tri-State Insurance Co., 274 P.2d 386 (Okla. 1954), and the Texas case of Farmers Ins. Exchange v. Wallace, 275 S.W.2d 864 (Tex. App. 1955), comprehensive coverage was found to apply. In both of these cases, the insured automobile was forced off the road and damaged while being driven in strong wind, and the courts found that the proximate cause of the damage was the wind. The Shirey court went further and said that "a windstorm must be taken to be a wind of such extraordinary force and violence as to be capable of damaging property; an ordinary gust of wind, no matter how prolonged, is not a windstorm."
A similar case is Friedman v. Ins. Co. of North America, 91 N.W.2d 328 (Wisc. 1958). A truck overturned while rounding a curve in a windstorm. The Supreme Court of Wisconsin held that the damage was proximately caused by wind and covered under comprehensive insurance, rejecting the insurer's argument that the loss was excluded under collision and upset. And, in contrast to the Matthews case mentioned above, an Ohio court of appeals in a 1991 case awarded comprehensive coverage to an insured who alleged that the wind had propelled a shopping cart into his car, damaging the side of the car. In Gargallo v. Nationwide General Ins. Co., 598 N.E.2d 1219 (Ohio Ct. App. 1991), the insured contended that the wind had caused the damage to his car; the insurer countered that another, unknown force had pushed the shopping cart into the insured's car, and since the insured failed to prove exactly what force put the cart in motion, the insured should only receive collision coverage. The Ohio court decided that since the cause of the propulsion of the cart was unknown and because "collision coverage was an exclusion from comprehensive coverage, the insured was entitled to comprehensive coverage". Not stated by the court but certainly present in the reasoning is the notion that the insured is entitled to the benefit of the doubt in any dispute with the insurer over a claim.
The question before a Texas court of appeals in American Auto. Ins. Co. v. Baker, 5 S.W.2d 252 (Tex. Ct. App. 1928) was whether hail damage to the insured's auto was covered by collision insurance. The court, holding that hail damage did not qualify as collision under the terms of the policy said: "In the usual and popular understanding of the term, a collision does not result, we think, from the force of gravity alone, especially when unaided by any human agency contributing thereto." Had the insured's policy contained comprehensive coverage, the loss, of course, would have been insured.
Since the other than collision insuring clause states that loss caused by theft is not considered a collision loss, the insured is clearly covered under the comprehensive coverage if the insured automobile is stolen and wrecked. There are a number of court cases attesting to this fact, among them Fireman's Ins. Co. v. Universal Credit Co., 85 S.W.2d 1061 (Tex. App. Ct. 1935) which was decided by a Texas appeals court.
The question is sometimes raised as to whether there would be coverage if a stolen automobile were found intact when recovered from the thief, but damaged before it was returned to the insured. This is what happened in Bolling v. Northern Ins. Co. of New York, 19 N.E.2d 920 (N.Y. App. Div. (1939). The insured car was stolen and a few hours later a police officer found it abandoned. While the officer was driving the car to the station, it was involved in a collision. The New York court of appeals held that since the theft was the proximate cause of the damage, the entire loss was to be paid under the comprehensive section of the policy.
A problem arises with so-called "joyride" cases. It is not always clear whether there is other than collision coverage when the car is "borrowed" by someone without permission (such as a garage attendant) and wrecked. The insuring agreement of part D of the personal auto policy, in discussing other than collision coverage, refers to "theft or larceny," so that the contract does not cover all unauthorized use. Hence, collision losses resulting from joyriding seem covered under comprehensive coverage only if the taking of the automobile actually constitutes theft or larceny in the state where it occurs. For example, in Block v. Standard Ins. Co. of New York, 54 N.E.2d 821 (N.Y. App. Div. 1944), the insureds were covered for a loss resulting from their chauffeur's joyride because the state statute included joyriding within the meaning of larceny.
The definition of "theft" and "larceny" is important because of the issue of coverage should the car be damaged or lost when someone takes it from the insured's possession. The court in Pangburn v. Travelers Insurance Company, 688 N.Y.S.2d 339 (N.Y. App. Div. 1999) said that it "must give effect to the ordinary definition of theft" when it ruled that the seizure of an insured's car by the sheriff's department was not theft. Black's Law Dictionary defines "theft" as "the unlawful taking of property without the owner's consent with the intent to deprive the owner of the item permanently." In the Pangburn case, the car was no doubt taken without the owner's consent, but this taking was not unlawful and there was no intent to deprive the owner of the car permanently. So in this example, if the car had been damaged in a collision following the seizure by the sheriff's department, there would not be an issue of whether the loss is a collision loss or an other than collision loss.
The same can be said of a larceny. Larceny is defined as "obtaining possession of the property of another by fraud, trick, or device with the preconceived design or intent to steal the property." As an example of larceny, see Sacks v. Hartford Ins. Co., 416 N.Y.S.2d 292 (N.Y. App. Div. 1979) wherein the court ruled that theft or larceny coverage applied when a prospective buyer of the insured's vehicle took the car on a test drive and never returned. If the vehicle had been damaged in a collision after the buyer's taking of the vehicle by fraud, the loss would have been covered as an other than collision loss.
The insuring agreement of the personal auto policy states that contact with a bird or animal is not considered a collision loss. Thus, when the insured carries both collision and other than collision coverage, loss by collision with a bird or animal is settled as a loss covered by other than collision. It does not matter whether the animal falls on the car while in flight, runs into the car, or is run into by the car.
A question that arises occasionally is whether collision with a dead animal also qualifies as an other than collision loss. The usual argument against other than collision coverage under these circumstances is that an animal can only be a living organism; once it has died, the animal is like any other inanimate object, and contact with it is a collision. However, the common or popular meaning of "animal" is sufficiently broader than the technical definition and allows for coverage in this situation. Although "carcass" is probably a more precise word for describing the remains of an animal, the expression "dead animal" seems equally acceptable in everyday usage. Furthermore, dead animals in the roadway present the hazard that they do precisely because they were once capable of presenting themselves on the roadway, so it is logical to include both living and dead animals within the scope of comprehensive coverage.
Another question that arises in this area is whether a human can be considered an animal. In McKay v. State Farm Mut. Auto Ins. Co., 933 F. Supp. 635 (S.D. Texas 1995), the court decided that a man running into a car was a collision loss because a man is an object, but he is not an animal. The court noted that the legal definition of "animal" excludes a human.
Breakage of glass is one of the perils stated in the other than collision insuring agreement. The agreement also provides that if breakage of glass is caused by a collision, the insured may elect to have it considered a loss caused by collision. Thus, if glass is broken by any cause, including collision, the insured may have it covered under other than collision insurance to take advantage of a lower deductible. Or, if a collision involves both glass breakage and other collision damage, the entire loss can be considered as a collision and the insured can avoid the other than collision deductible.
There have been a number of cases involving automobiles damaged by collisions that resulted from perils not specifically mentioned in the list of "other than collision" perils. These include such things as skidding on ice and snow or rain, the driver's being temporarily blinded by light, tire blowouts, and the like. Perhaps because each of these cases involved collisions that resulted from ordinary hazards of driving, the courts have generally held that such losses are to be covered as collision and are excluded from coverage under other than collision insurance. However, it is difficult to predict the response that courts may have to future cases (especially since the list of other than collision causes of loss is not an exclusive list).
In Weinstein v. Granite State Fire Ins. Co., 54 A.2d 573 (Mun. Ct. App. D.C. 1947), the insured maintained that he collided with another car at an intersection because he was blinded by the sun. The insured carried comprehensive coverage and the loss was held to be excluded as a collision. Similarly, in Witherspoon v. Lumbermen's Mut. Ins. Co., 203 S.W.2d 185 (Ark. 1947), the Arkansas Supreme Court held that the loss was a collision not covered by comprehensive insurance when the insured was blinded by lights while driving at night, and his car left the road and overturned.
In Colley v. Pearl Assurance Co., 195 S.W.2d 15 (Tenn. 1946), the cause of the damage to the insured automobile was a tire blowout. The blowout caused the insured to lose control of his car and strike the abutment of a bridge. The Tennessee Supreme Court ruled that this was a collision loss, because a tire could blow out without a collision occurring.
The case of Bruener v. Twin City Fire Ins. Co., 222 P.2d 833 (Wn. 1950) involved skidding. The insured had comprehensive coverage only. His car skidded on an icy highway and hit an embankment. The insured argued that the proximate cause of the collision was the skidding. The Supreme Court of Washington held that the loss was not covered because, in the final analysis, collision and not skidding was the "direct, violent and efficient cause of the damage." Note, however, that this "immediate physical cause" analysis was overruled by a later Washington Supreme Court decision; this was the case of Graham v. Pub. Employees Mut. Ins. Co., 98 Wash. 2d 533, 656 P.2d 1077 (1983).
From time to time the question arises as to the status of damage resulting from the shifting of a vehicle's cargo. A tractor-trailer might be transporting heavy steel machinery; or a compact hatchback might be used for bringing home a bundle of two-by-fours from the neighborhood lumberyard. If the vehicle stops suddenly and the machinery is propelled into the front of the trailer or the lumber slides into the dashboard, is the resulting loss to the auto paid under collision or other than collision coverage?
On the one hand, elements of collision are present. The auto has, in a sense, collided with another object—the cargo—and there is nothing in the policy limiting collision to impact with objects outside the vehicle. On the other hand, the propulsion of the cargo into the auto—especially if it flies through the air—bears a resemblance to the action of a missile or, depending on the circumstances, a falling object. If the cargo slides or rolls to its damaging impact with the auto, it is questionable whether the cargo has actually collided with the auto, since the two objects were already in contact before the collision.
An interesting twist to this issue is when the cargo is live, for example, a horse or cows. If the insured is hauling an animal in his vehicle, and the animal, for whatever reason, rears up and starts kicking and butting the inside of the vehicle, is the damage caused by collision or other than collision? There certainly was an impact between the vehicle and an object, but the personal auto policy denotes contact with a bird or animal as an other than collision loss; the policy does not specify that the animal has to be outside the vehicle when it makes contact with the car. So, the more reasonable choice would be to categorize such a loss as an other than collision loss.
Of course, given the uncertainties surrounding this issue, the traditionally acceptable interpretation is to construe the policy in favor of the insured. If the insured carries both collision and comprehensive, with a lower deductible on comprehensive, the loss can be settled under the comprehensive insurance; if the insured carries collision only, there is no restriction in the policy to prevent a settlement under that coverage.
The following scenarios represent typical comp vs. collision loss situations that have been presented to FC&S by readers. These scenarios may help all readers handle the claim questions that arise in the everyday business of insurance.
Tire Blowout: The insured's tire blows out and tread from the tire strikes the fenders and muffler causing several hundred dollars damage. Is this a collision or other than collision loss? It depends on whether the tread actually separates from the vehicle before causing the damage. "Collision" is defined as an impact with another vehicle or object. If the tire tread had completely separated from the rest of the tire and wheel at the time it struck the fenders and muffler, collision is the proper coverage; this is because if the tread had separated from the tire and wheel, it was another object that collided with the insured's auto. If the tread was still somehow connected to the auto at the time of the damage, then it cannot be considered as another object, separate from the insured's auto. In such an instance, the other than collision coverage can be applied to the claim.
Falling Garage Door: The insured's garage door fell off its track onto the car and caused extensive damage. Is this a collision or other than collision loss? This is an other than collision loss; it is damage caused by a falling object. If the garage door had been driven down its track onto the car due to some kind of mechanical failure, that would be a collision loss because of the car's impact with another object. If the door just falls because of loose bolts or something like that, that is a loss due to a falling object.
Glass Breakage: The insured lost control of his car and hit a bridge. The windshield shattered as a result of the accident. Would the windshield damage be covered under comprehensive coverage? The current personal auto policy states that the breakage of glass is an other than collision loss. However, if the breakage is caused by a collision, the insured may choose (but is not required) to have the glass breakage considered part of the collision damage.
Horseplay: The insured and a friend were playing around while working on their autos. The friend threw a screw driver at the insured but hit the insured's car, damaging the hood. Would this be considered a collision loss? There was an impact between the insured's car and another object, but the damage was caused by an object that fits the ordinary everyday definition of "missile"; that is, an object thrown or projected to strike something at a distance. The screw driver was thrown at the insured and fits into the category of a missile, an other than collision cause of loss.
Contact with an Electric Wire: The insured backed his vehicle into a low hanging electric wire. When he came into contact with the wire, an electrical current ran from the wire to the vehicle causing severe damage. Is this a comprehensive loss due to damage caused by the electrical power current, or a collision loss since the vehicle actually collided with the wire? This is an other than collision loss since the actual damage was done by the electrical current. The wire did not do the damage, electricity did. So, while the car may have touched the wire, there was no damage due to a collision.
Falling through the Ice: The insured drove his car onto a frozen lake and parked it. Then, the car started to fall through some thin ice and the insured could not get the car out. Is this a comp loss or a collision loss? Water is an object and if a car runs into water or the water smashes into the car (e.g. a tidal wave), that can be seen as an impact with another object—that is, a collision. On the other hand, this scenario does not represent one moving object impacting with another; being submerged into water just does not paint a picture of some forceful striking together, which is how an impact is defined. Besides, the auto policy does call damage due to water an other than collision loss. The circumstances of this loss make it a comp loss.
Rolling Rock: The insured hit a rock that was rolling down the road after falling from a hillside. The undercarriage of the car was damaged. Is this a collision loss or damage from a falling object? The car collided with another object, and even though the rock fell from the hill, it was not a falling object when it caused the damage. If the rock had been airborne at the time of the accident and fell on the car, that would be damage by a falling object. As it was, the rock was rolling on the road and impacted with the car.
Pulling off a Bumper: The insured was towing a friend's car with a rope attached to the bumpers of both cars. The bumper of the insured's car was pulled off, causing some damage to the body of the car. Is this a collision loss or an other than collision loss? This does not fit the definition of collision in that there was neither an upset of the car nor an impact with another object. The damage was caused by some force pulling a part from the insured's car; this is an other than collision loss.
Wind Damage or Collision: The insured opened his car door just as a big truck was passing by and the breeze from the passing truck caused the car door to open wide into the front fender. The car door, the fender, and the door hinge were all damaged. Was the damage caused by the wind or was this a collision? The wind caused this damage. The definition of collision requires the impact of the insured car with another object. The truck did not hit the car and the door which did the damage was part of the car; the covered auto cannot collide with itself or a part of itself if that part is still attached to the car.
Wind Damage or Collision, Part Two: The insured parked his car in a store's parking lot on a windy day. A shopping cart rolled into the side of the car and caused a huge dent. Is this a collision loss or an other than collision loss? This is a collision loss because the actual damage was done by the cart (an object) impacting with the insured's car. Wind damage is when the actual damage is caused by the force of the wind, such as heavy and continuous gusts of wind tearing off a fender or some other part of the car.
These loss situations are just a few examples of the everyday type of comp versus collision questions that insureds and insurers face. What these examples show and what this article in general has shown is that the comp versus collision disputes have to be decided based on the particular facts of each loss. And, if there is any doubt about which type of coverage applies, doubt based on reasonable interpretations of the facts, the insured gets the benefit of the doubt. For a visual on determining collision, See Collision Coverage
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
Reviewed July 1, 2016
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