SUSAN L. SURREY vs. LUMBERMENS MUTUAL CASUALTY COMPANY.

LIACOS, J. This case raises a straightforward question of law: Is the physical contact requirement of the defendant's motor vehicle insurance policy unenforceable as a perversion of the aims of the uninsured motorist statute, G. L. c. 175, Section 113L? The plaintiff brought a complaint for breach of an insurance contract. The case is here on the plaintiff's appeal from the denial of her motion for summary judgement and the granting of the defendant's cross motion for same. The judge below construed G. L. c. 175, Section 113L, to preclude recovery under the plaintiff's policy for

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a hit-and-run accident absent physical contact with the plaintiff's automobile. We granted direct appellate review. We reverse.

The facts are stipulated. On September 30, 1978, the plaintiff was operating a motor vehicle on County Street in Attleboro when an automobile coming from the opposite direction forced her off the road into a guardrail [Note 1] The operator or owner of the other car was not identified. There was no physical contact between the unidentified vehicle and the plaintiff's automobile.

At the time of the accident, the plaintiff was insured under a motor vehicle policy issued by the defendant. The uninsured vehicle section of the policy contained the following limitation:

"Some autos are uninsured. Some accidents involve unidentified hit and run autos. Under this Part, we will pay damages for bodily injury to people injured or killed in certain accidents caused by uninsured or hit and run autos. We will pay only if the injured person is legally entitled to recover from the owner or operator of the uninsured or hit and run auto. (emphasis supplied).

The defendant insurer asserts that, because the limiting endorsement is clear and unambiguous, there can be no basis to construe that language in favor of the insured. Contrast Slater v. United States Fidelity & Guar. Co., 379 Mass. 801, 803 (1980) (when insurer drafts policy in ambiguous language, court will construe that language in favor of the insured). The defendant asserts also that the policy language has been approved by the Insurance Commissioner.

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These claims are beyond cavil, but they cannot render the physical contact provision enforceable if that language in the policy is in conflict with the uninsured motor vehicle statute, G. L. c. 175, Section 113L. Johnson v. Travelers Indem. Co., 359 Mass. 525, 528 (1971).

The insurer claims, however, that the policy limitation of coverage of "hit and run" accidents to those involving physical contact with the insured's vehicle comports with the denotation of "hit-and-run" as used in G. L. c. 175, Section 113L [Note 2] The insurer presses the point that the words "hit-and-run" in the statute must be read literally to mean actual physical contact. The plaintiff, on the other hand, contends that the expression "hit-and-run" does not necessarily import actual physical contact. She cites both lexical and other statutory uses of the term to buttress her argument that the defendant's policy exclusion unlawfully restricts the purpose of the uninsured motor vehicle statute: to provide the availability of compensation for bodily injury or death caused by a tortfeasor who is uninsured. Although the judge endorsed the plaintiff's reasoning, he concluded that the statutory language is to be read literally so as to require a physical contact, a "hit." The judge further concluded that any change in the effect of the statutory language is for the Legislature.

The question sub judice, a matter of first impression in the Commonwealth, has been considered by numerous other jurisdictions. Our review of those cases indicates that the

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defendant's position is no longer supported by the majority of the courts, nor is it sustained by a proper view of legislative intent. The judge below relied on Clark v. Regent Ins. Co., S.D. (1978) (270 N.W.2d 26 [1978]). The South Dakota Supreme Court noted that there are three types of uninsured motorist statutes. Id. at (id. at 28). See A. Widiss, A Guide to Uninsured Motorist Coverage Section 2.41, at 154-156 (Supp. 1980). The first type covers "uninsured motorists" generally, with no mention of hit-and-run drivers. [Note 3] The second statutory pattern, which obtains in Massachusetts, designates coverage for "hit-and-run motor vehicles" without defining that term. See note 2, supra. Third, some statutes define a "hit-and-run vehicle" specifically in terms of physical contact between the insured vehicle and the unidentified vehicle. [Note 4] In the last category the statute itself precludes any challenge to the physical contact clause. Our perusal of decisions emanating from this third category of jurisdictions undercuts the statement of the Clark court, supra at n.3 (supra at 28 n.3), that twenty jurisdictions have upheld the physical contact requirement. We note that Georgia, Mississippi, New York, North Carolina, and South Carolina have upheld physical contact endorsements, not as a matter of policy but in conformity to a statutory directive. See note 4, supra. Once these cases are excised from the Clark list as inapposite to

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the instant appeal, the tally diminishes to fourteen courts which have upheld a physical contact provision purely on policy grounds. [Note 5] See generally Simpson v. Farmers Ins. Co., 225 Kan. 508, 514 (1979). See also Annot., 25 A.L.R.3d 1299, Section 4[a] (Supp. 1980). As of this writing, seventeen courts have confronted nearly identical factual situations and have invalidated the contract term at issue. [Note 6]

More persuasive than the numbers, however, is the rationale of the latter group of decisions. All have considered and rejected the very basis upon which the judge below decided for the defendant. First, none of these courts has limited the undefined term "hit-and-run" to require physical contact. Also, our survey of both current and dated dictionaries produced only one which built the notion of a striking into its definition of "hit-and-run." American heritage Dictionary of the English Language 625 (1969). [Note 7] In all

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other lexical and decisional construction, "hit-and-run" is uniformly "synonymous with a car involved in an accident causing damages where the driver flees from the scene." Hartford Accident & Indem. Co. v. Novak, 83 Wash. 2d 576, 585 (1974). We are convinced that if the Legislature wanted to qualify the term "hit-and-run" to the narrower designation of physical contact, it would have inserted appropriate language to that effect. Compare statutes cited at note 4, supra. Instead, the Legislature has defined "hit-and-run" in other statutes without insistance on physical contact as an element of the term. See excerpts from G. L. c. 90, Section 24 (2) (a); G. L. c. 260, Section 4B, set out in the margin. [Note 8] Utilizing the very principle of statutory construction advanced by the defendant, that words not specially defined are to be given their ordinary lexical meaning, Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), we conclude that physical contact is not part of the usual and accepted meaning of the term "hit-and-run." Absent explicit legislative requirement that physical contact be shown, we can attribute no such connotation to the term "hit-and-run" as used in G. L. c. 175, Section 113L. See generally Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 596-597

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(1976); A. Widiss, supra at 156. Moreover, if, as the defendant urges, a notion of striking inheres in the usual and ordinary meaning of "hit-and-run," then the policy language at issue would be superfluous. See Hartford Accident & Indem. Co. v. Novak, supra at 585. We conclude that the insurer, in drafting the uninsured motor vehicle endorsements, sought to restrict its liability to a scope narrower than the Legislature envisioned.

An additional aspect of the principle of statutory construction is that statutory words are to be given their usual and ordinary meaning considered in light of the aim to be accomplished by the Legislature. Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212, 216 (1980). The aim of the uninsured motorist statute is to minimize the catastrophic financial loss for victims of automobile accidents caused by the negligence of uninsured tortfeasors. See 1968 Senate Doc. No. 1030, at 6-7. See also Simpson v. Farmers Ins. Co., supra at 514 (aim is to protect public from injury caused by motorists who could not make the injured party whole). Accord, Halseth v. State Farm Mut. Auto. Ins. Co., supra at 596; Clark v. Regent Ins. Co., supra at (supra at 29). We believe it is wholly inconsistent with this broad remedial purpose to permit the insurer to evade mandated coverage by erecting an artificial, arbitrary barrier to recovery.

The defendant postulates that the physical contact endorsement serves to prevent fraudulent claims by requiring of the claimant tangible proof of collision with an uninsured vehicle. This argument succumbs to the overriding purpose of the legislation. Furthermore, elimination of this arbitrary physical contact requirement does not diminish the plaintiff's burden to prove that the accident actually did occur as she says. [Note 9] We adopt the emerging and better reasoned view

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of the claimant's evidentiary burden, epitomized in the words of the Florida court:

"The argument that the policy requirement of physical contact is reasonable is fallacious. The only reason for such a requirement is to prove that the accident actually did occur as a claimant may say it did. This is a question of fact to be determined by the jury, or the judge if demand for jury trial is not made. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact. If twenty witnesses will swear they saw the accident happen, their testimony should not be deemed worthless, as it would be under the decision here for review." Brown v. Progressive Mut. Ins. Co., 249 So. 2d 429, 430 (Fla. 1971).

See generally A. Widiss, supra at 156-157.

As to the defendant's argument that the Insurance Commissioner's approval of the policy provision evinces the Legislature's intent to incorporate a physical contact restriction, the Commissioner's approval is "hardly persuasive where, as here, the endorsement so clearly limits coverage in violation of a statute." State Farm Mut. Auto. Ins. Co. v. Maryland Auto. Ins. Fund., 277 Md. 602, 606 (1976).

The summary judgment for the defendant is set aside. We remand to the Superior Court for entry of partial summary judgment in favor of the plaintiff on the question of liability and for further proceedings on the question of damages. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).

So ordered.