This declaratory judgment action seeks the interpretation of an uninsured motorist endorsement to a certain policy of automobile liability insurance.
The facts are as follows.
On February 21, 1970 plaintiff Mary Obst was a passenger in a motor vehicle owned and operated by her husband Charles Obst. They were returning home in the early morning hours from a visit to friends. Mary Obst worked night work, was tired and had dozed off. She was seated in the front seat and was suddenly awakened when she was thrown forward to the floor of the car. She had no knowledge concerning the reason for or the facts causing this incident to occur.
Her husband, who was the driver, provided the only testimony concerning the happening of the incident. He testified he was proceeding on Black Horse Pike within the speed limit and saw in his rear view mirror the lights of a car approaching rapidly. The operator of this car overtook and passed him, cut in front of Obst sharply and applied his brakes. When Obst saw the brake lights go on, he applied his brakes, skidded and turned to the left, bringing his car to an abrupt halt. There was no contact between the two vehicles. The other vehicle continued on its path and was
never identified. It left the scene. As a result of the sudden application of brakes, plaintiff Mary Obst was thrown forward into the dashboard.
She sustained no outward signs of injury. The next day her eye was swollen shut, and when the swelling went down in a few days it was observed that she had no vision in the eye. Medical attention was sought for the injury for the first time on February 24, 1970. A series of hospitalizations followed, with the end result being the loss of the eye.
Charles Obst testified that since there was no contact with the other car and no immediate signs of injury, no report of the incident was ever made to the police. There were no witnesses to the incident.
The incident was reported to defendant State Farm Mutual Automobile Insurance Company by plaintiff at the suggestion of her treating physicians on February 24, 1970.
Plaintiff's policy of insurance was issued by defendant on May 2, 1968 and was effective until October 10, 1968. It was maintained in effect thereafter by payment of semi-annual premiums and was in effect on the date the accident occurred. The policy carries limits of $20,000-$40,000 and contains coverage for bodily injury, property damage and collision insurance. The policy also contained, as insuring agreement III, uninsured automobile coverage.
The exact terms of the endorsement attached to the policy are unimportant, for it is agreed by all parties that the provisions of this uninsured motorist coverage, in effect at the time the accident occurred, was the form of the endorsement promulgated and approved by the Commissioner of Insurance on April 2, 1969.
Plaintiff made claim against defendant State Farm under the uninsured motorist endorsement. State Farm has denied liability, contending there is no coverage.
Plaintiff has also given timely notice of the accident to the Unsatisfied Claim and Judgment Fund Board (hereinafter board), and that Board has also denied liability to plaintiff on the ground that the policy of State Farm provides
coverage for the claim. Plaintiff, therefore, seeks a declaration of her rights either against State Farm under the policy in question or the Board, or either of them.
The pertinent portions of the uninsured motorist endorsement are as follows:
The company will pay all sums which the insured * * * shall be legally entitled to recover * * * caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle * * *
A "hit-and-run vehicle" is defined to mean (i) a highway vehicle which causes an accident resulting in bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, or (ii) a highway vehicle which without physical contact with the insured or with a vehicle which the insured is occupying at the ...