WIND SHEAR IS NOT PHYSICAL CONTACT

Automobile	Motorcycle
Uninsured Motorist	Hit and Run

On April 10, 2003, State Farm Mutual Automobile Insurance Company issued a policy, including uninsured motorist coverage, to John J. Benedetto Jr., for his 2003 Big Dog 1750 motorcycle. On September 6, 2009, Benedetto filed an uninsured motorist claim after his motorcycle left the roadway and hit a gravel shoulder, causing Benedetto and his wife, Colleen, to be thrown from the motorcycle.

Benedetto asserted that wind shear from a still unidentified, passing semi-tractor trailer truck caused his motorcycle to leave the road. State Farm filed a complaint on March 8, 2013, seeking a declaration that no uninsured motorist coverage was available to Benedetto and thus State Farm had no obligation to arbitrate his claim. Thereafter both State Farm and Benedetto filed cross-motions for summary judgment on the issue of whether uninsured motorist coverage was available to Benedetto under the policy.

Both parties stipulated to the arbitration statements of Benedetto and his wife that on the night of the incident, at approximately 7:30 p.m., Benedetto was operating his motorcycle in or near Chester, Illinois, with his wife Colleen as a passenger. They were traveling west on Highway 150, a two-lane highway, as the motorcycle came to a bend in the road. As Benedetto entered the curve, a semi coming from the opposite direction crossed over into his lane of travel. Benedetto said he swerved to the right and avoided any physical contact with the semi but that his motorcycle was then propelled off the roadway by the wind shear of the passing semi onto a gravel shoulder and into a ditch where they were thrown off the motorcycle, sustaining injuries. For whatever reason, the semi failed to stop, and its owner and operator driver remains unknown.

The relevant section of the policy is commonly referred to as a “hit and run” provision. In his motion for summary judgment, Benedetto alleged that this policy provision was ambiguous and did not require physical contact between the insured and the unidentified hit-and-run driver to recover under the uninsured motorist provision and that, even if physical contact was required, wind shear sufficed. In turn, State Farm alleged in its cross-motion for summary judgment that physical contact was required under both Illinois law and the unambiguous insurance policy and that wind shear does not constitute physical contact. The trial court granted Benedetto’s motion, noting that wind shear was sufficient physical contact to invoke coverage under Illinois law. State Farm appealed.

On appeal, the court noted that Benedetto contended that the policy was ambiguous as to whether the uninsured motorist clause required physical contact, which is not specifically required under Illinois law. “Essentially, [Benedetto] argues that the alleged ambiguity would allow coverage for what can fairly be described as a ‘miss and hit’ accident with ‘wind shear’ striking his vehicle.” The court disagreed, citing a state supreme court decision that denied recovery in a similar incident because there had been no physical contact between the plaintiff’s vehicle and the unknown hit-and-run vehicle as required under the policy. The trial court’s judgment was reversed.

State Farm Mutual Automobile Insurance Company vs. Benedetto-Appellate Court of Illinois-May 6, 2015-No. 01–14–1521.