COMMERCE INSURANCE COMPANY vs. MARIA A. MENDONCA.

JACOBS, J. Maria Mendonca was a passenger in a car that was stopped for a red light when it was struck from behind by another vehicle. The collision occurred at approximately

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10:30 P.M. on August 6, 1996, at the intersection of Massachusetts and Rindge Avenues in Cambridge. Joseph Corrigan, the owner and operator of the vehicle in which Mendonca was a passenger, asked her and another passenger if they were "ok," and when they answered that they were, he walked to the rear of his vehicle. There, he spoke with the other operator, who was standing outside his vehicle, which was stopped at the point of impact. Corrigan and the other operator inspected their respective vehicles and agreed that there was no significant damage. They each then drove away. There was evidence that the other operator drove through a red light when he left the scene of the collision. No identifying information was requested or obtained from the other operator or his vehicle before he drove off. Neither Mendonca nor the other passenger left Corrigan's vehicle during this incident.

After later discovering she had been injured, Mendonca sought compensation under the uninsured motorist provision of a policy issued by Commerce Insurance Company (Commerce) on a motor vehicle owned by her. [Note 1] Following the filing of this declaratory judgment action, a Superior Court judge allowed Commerce's motion for summary judgment, denied Mendonca's similar motion, and ordered a judgment declaring that Mendonca was not entitled to uninsured motorist benefits under the standard Massachusetts automobile insurance policy issued to her. We reverse.

1. Hit-and-run. Because the term "hit-and-run" is not defined in the policy or in the uninsured motorist statute, G. L. c. 175, § 113L, [Note 2] we must consider how that term is to be interpreted in the circumstances of this case, where the presumptively at fault

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operator stopped after the collision and talked to the operator of the car in which Mendonca was a passenger. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142 , 146 (1982) ("The responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court").

In the only Massachusetts appellate decision interpreting the term "hit-and-run," in the context of the uninsured motorist statute, the Supreme Judicial Court rejected a literal interpretation of "hit" and concluded that "physical contact is not part of the usual and accepted meaning of the term." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171 , 176 (1981). The court viewed the statutory words "in light of the aim to be accomplished by the Legislature . . . to minimize the catastrophic financial loss for victims of automobile accidents caused by the negligence of uninsured tortfeasors," and concluded that the retention of the "arbitrary physical contact requirement" in a policy would be inconsistent with the "broad remedial purpose" of the statute. Id. at 177.

Consistent with the nonliteral approach taken to the meaning of "hit-and-run" in Surrey is an interpretation that focuses on the failure to give identifying information and does not treat flight as an indispensable element of "run." [Note 3] This approach is widely accepted in other jurisdictions. See 1 Widiss, Uninsured

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and Underinsured Motorist Insurance § 9.10, at 632- 633 (2d ed. rev. 1999 & Supp. 2002), and cases cited ("In contrast to the rigid and literal construction sometimes accorded the 'physical contact' requirement in 'hit-and-run' cases . . . courts have almost invariably rejected the insurer's arguments with respect to the failure of a claimant to ascertain the identity of the tortfeasor [where a motorist stops at an accident scene]"). Prominent among these courts is the decision of the New York Court of Appeals in Riemenschneider v. Motor Vehicle Acc. Indemnification Corp., 20 N.Y.2d 547 (1967), where, in circumstances nearly identical to the present case, the court treated "hit and run" policy language more expansively than as colloquially understood. The court stated as follows: "An injured person who is not aware of his injury until it is too late to take steps to make the necessary identification is in precisely the same situation of deprivation of remedy as he would be if he knew he were hurt but the other driver left the scene without opportunity to identify him." Id. at 550.

Relying on jurisdictions that treat flight from the scene as the "focal element" of the term hit-and-run, Commerce argues that where, as here, the driver who caused the collision stopped, Mendonca cannot prove the "presumptively at fault vehicle was a 'hit-and-run auto.' " [Note 4] This narrow interpretation effectively would leave a gap in mandated coverage by providing protection to a person injured by an identified, but uninsured, operator or by an operator whose postaccident flight prevents identification,

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while denying protection when the operator does not immediately flee but nevertheless leaves the accident scene without being identified. Such a coverage gap is contrary to the general purpose of legislatively mandated liability and uninsured motorist insurance, which is to give some measure of financial protection to persons injured by the negligent driving of others. See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279 , 285 (1991) ("General Laws c. 175, § 113L, was enacted with the broad objective of ensuring that victims of automobile accidents would be adequately compensated for their injuries when the accidents are caused by the negligence of unidentified motorists or motorists with insufficient or no liability coverage"). See also Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. at 177. [Note 5]

2. Mendonca as claimant. Commerce, claiming only that there was no hit-and-run, makes no argument as to the policy provision which states as follows: "We will pay for hit-and-run accidents only if the owner or operator causing the accident cannot be identified." We examine the effect of that clause in this declaratory judgment action so as to comply with the purpose of G. L. c. 231A, § 9, to "remove, and to afford [the parties] relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations." See Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292 (1977). Although the clause is not apparent in or required by G. L. c. 175, § 113L(1), we view it, for purposes of this decision, as not improperly "erecting an artificial, arbitrary barrier to recovery." See Surrey v. Lumbermens Mut. Cas. Co., supra at 177. Similarly, even if the words "cannot be identified" were to be generously interpreted as imposing a due diligence duty on the operator of a vehicle which is in a collision with another vehicle to obtain identifying information if the other operator stops, such duty should not automatically be transferred to a passenger. Analogous to decisions not permitting the imputation of a driver's negligence to an ordinary passenger, see, e.g., Smerdon

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v. Fuller, 353 Mass. 774 (1968); Nolan & Sartorio, Tort Law § 391 (2d ed. 1989), Corrigan's action or inaction is not chargeable to Mendonca in the circumstances. [Note 6] In any event, it would be inequitable to impose such a duty on a passenger who is unaware of an injury at the time of the collision. See Massa v. Southern Heritage Ins. Co., 697 So. 2d 868, 872 (Fla. Dist. Ct. App. 1997) (where the plaintiff braked hard to avoid a collision, drove away without being aware of any injury, and did not identify other vehicle, the court held that any reasonable obligation to identify commences with the insured's awareness of an injury). See also Mangus v. Doe, 203 Va. 518 (1962) (at time of the accident, the plaintiff did not know he had been injured, and "there was no necessity for him to obtain [identification of the other operator or vehicle]"). In Riemenschneider, where, as noted above, the circumstances were nearly identical to the present case, the court permitted access to coverage where the policy described a hit-and-run driver as including one whose identity "cannot be ascertained." Riemenschneider v. Motor Vehicle Acc. Indemnification Corp., 20 N.Y.2d at 550. Other reasons for an inability to identify the presumptively negligent operator often are accepted as grounds for recognizing uninsured coverage. [Note 7]

Conclusion. Mendonca, as the insured, has met her burden of

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establishing that, in the circumstances, her asserted damages fall "within the description of the risks covered." Markline Co. v. Travelers Ins. Co., 384 Mass. 139 , 140 (1981). Accordingly, the order allowing Commerce's motion for summary judgment and the judgment declaring that Mendonca was not entitled to uninsured motorist benefits are reversed, and judgment is to enter declaring that Mendonca is not precluded from benefitting from the uninsured motorist coverage under the automobile insurance policy issued to her by Commerce with respect to any damages for bodily injury suffered by her in the collision of August 6, 1996. This judgment shall not obviate the necessity for proof of the negligence of the other operator or other relevant matters not addressed by the ordered declaration.

So ordered.