An appellate court in Arkansas, affirming a trial court's decision, has ruled that an insured was not entitled to uninsured motorist ("UM") benefits where he failed to prove contact with another vehicle or that the other vehicle allegedly involved was uninsured.
The Case
Georgie Konecny, an employee of Arkansas Electric Cooperative Corporation ("AECC"), asserted that he was driving a pickup truck on an Arkansas highway when he encountered a Jeep towing another Jeep in the center of the highway. Mr. Konecny asserted that the Jeep, which was making a u-turn in the center of the highway, caused him to swerve to avoid a collision and to leave the highway. As he veered off the highway on the west side shoulder, he struck a culvert, continued traveling outside the traffic lane, and hit two trees before coming to a final rest.
There was no physical contact between the truck operated by Mr. Konecny and the Jeep. The Jeep left the scene immediately after the incident, and neither the Jeep nor its driver were ever identified.
Michael Livesay witnessed Mr. Konecny's accident and saw the driver of the Jeep leaving the accident scene. Arkansas State Police officer Kris McCrea investigated the wreck. Officer McCrea's investigation confirmed that on the basis of the evidence left at the scene, the actions of the Jeep had caused Mr. Konecny's vehicle to leave the highway. The officer's investigation confirmed that the Jeep left the scene and corroborated Mr. Livesay's statement.
Mr. Konecny sued his insurers, Federated Rural Electric Insurance Exchange and Auto-Owners Insurance Company, seeking to recover UM benefits.
The insurers moved for summary judgment, arguing that their UM provisions required (1) that Mr. Konecny provide proof that the other vehicle was uninsured, and (2) contact with a hit-and-run driver.
The trial court granted the insurers' motions for summary judgment, and Mr. Konecny appealed.
Among other things, he argued that under the terms of both policies, he was entitled to UM coverage because there was no liability insurance available to him at the time of the accident. Mr. Konecny also argued that the contract provision of the insurance policies violated Arkansas public policy, and he urged the court to overrule Ward v. Consolidated Underwriters, 535 S.W.2d 830 (Ark. 1976), the initial case that upheld the direct-contact requirement. He maintained that this requirement made no sense when, as here, there was corroborative evidence that proved that the wreck was caused by the fleeing driver, and the possibility of fraud was nonexistent.
The Appellate Court's Decision
The appellate court affirmed.
In its decision, the appellate court explained that the "plain language" of both policies required that Mr. Konecny, to obtain UM benefits, prove that the other vehicle was uninsured. It ruled that the trial court had correctly declined to allow a jury "to speculate" that the other vehicle was uninsured merely because it left the scene.
The appellate court also dismissed Mr. Konecny's contention that the fact that the other vehicle fled the scene was sufficient evidence to create a factual question as to whether that vehicle was insured, noting that there were "many possible motivations for the other driver to have left the scene other than a lack of insurance."
Simply put, the appellate court held that when a plaintiff failed to present evidence that the other vehicle was uninsured, summary judgment in favor of the insurance company was "proper."
The appellate court also pointed out that the "plain language" of the policies required, as a condition of UM coverage, that physical contact occur. Because the unidentified Jeep that fled the scene and caused the accident did not make physical contact with either Mr. Konecny or his vehicle, Mr. Konecny also did not meet this condition for coverage.
Finally, the appellate court rejected Mr. Konecny's contention that the contact requirement was inconsistent with the Arkansas UM statute, adding that it was "powerless" to overrule Arkansas Supreme Court decisions.
The case is Konecny v. Federated Rural Electric Ins. Exchange, No. CV-18-945 (Ark. Ct. App. Oct. 16, 2019). James, Carter & Priebe, LLC, by: Daniel R. Carter and Paul J. James, for appellant. Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Kimberly D. Young, for separate appellee Federated Rural Electric Insurance Exchange. Anderson, Murphy & Hopkins L.L.P., by: Randy P. Murphy and Brandon T. Cole, for separate appellee Auto-Owners Insurance Company.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].