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NATIONAL UNION FIRE INS. CO. v. BINKER

July 15, 1987

National Union Fire Insurance Company of Pittsburgh, PA., Plaintiff,
v.
Bonnie L. Binker, Individually, as Administratrix of the Estate of Carl William Binker, Jr., and as Legal Representative of Christiana Binker, Michele Binker, and Georgia Binker, Defendant and Third-Party Plaintiff, v. The Travelers Indemnity Co., Third-Party Defendant



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on plaintiff's Workmen's Compensation Division for leave to intervene. Plaintiff, National Union Fire Insurance Company of Pittsburgh, Pa. (National Union), filed this suit on October 20, 1983, seeking a declaratory judgment that an automobile liability policy issued by National Union to The Evening Star Newspaper Company and Times News Holdings, Inc. (Evening Star), does not provide coverage for a fatal accident involving an unidentified motorist and defendant Bonnie Binker's late husband. Mrs. Binker and the third-party defendant, The Travelers Indemnity Company (Travelers), oppose the motions. (Travelers was the decedent's personal insurance carrier.)

 Background

 This case has been stayed pending resolution of a related case in the District of Columbia's Article I courts. In Doe v. Binker, 492 A.2d 857 (D.C. 1985), the District of Columbia Court of Appeals upheld a $200,000 damage award to Mrs. Binker and her three daughters against John Doe, the unidentified driver of the car that caused the accident in which Binker's husband died. This suit now involves enforcement of that judgment.

 The defendant's decedent, Carl William Binker, Jr., delivered newspapers for the Evening Star, utilizing a truck owned and insured by The Evening Star. On September 5, 1979, at approximately 6:30 in the evening, Binker was returning to the Evening Star's facilities in the District of Columbia after finishing his Virginia deliveries. He was driving on the Rochambeau (14th Street) Bridge within the District of Columbia. Leon Towell, a 15-year-old "jumper," also was in the truck. It was raining very hard, visibility was poor, and there were high winds. According to Towell's testimony in the Superior Court of the District of Columbia, because of the adverse weather conditions Binker was driving below the speed limit with the truck's headlights on, and with was in the second lane from the left of the bridge's four lanes. A small Toyota truck was stopped in the same lane, but its lights and emergency flashers were not in operation. When Binker saw the truck, he swerved into the clear left lane. However, he lost control of the truck and hit the left side of the bridge's concrete guard rail. When Binker swerved back to the right, the truck tipped onto two of its four wheels. The truck crossed four lanes of traffic, fell on its side and slid into the right side of the bridge. After the truck came to a stop, a third vehicle, driven by Donald E.Peden, hit the truck, causing an explosion of its gas tank. Towell escaped from the burning vehicle, but Binker, sadly, could not. He subsequently died. The District of Columbia Court of Appeals ultimately characterized the accident as one involving an "unidentified driver." (I.e., the driver of the stopped Toyota which Binker swerved to avoid.)

 The Evening Star's truck was insured with National Union. The insurance contract covered accidents involving uninsured motorists. Section V of the policy's Uninsured Motorists Insurance schedule defines two types of uninsured highway vehicles:

 
(a) a highway vehicle with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured highway vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or is or becoming insolvent; or
 
(b) a hit-and-run vehicle;

 The policy defines a "hit-and-run vehicle" as:

 
a highway vehicle which causes 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, provided:
 
(a) there cannot be ascertained the identity of either the operator or owner of such highway vehicle;

 The policy complied with the District of Columbia's insurance laws in effect at the time of the accident. See D.C. Code §§ 40-401 et seq. (1981).

 Discussion

 I. Plaintiff's Motion for Summary ...


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