This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Nary Sao, Tanratha Soeung, individually

and as natural guardians of Vary Soeung, a minor,



American Family Insurance Group,


Filed May 4, 1999


Holtan, Judge[*]

Concurring Specially, Huspeni, Judge[**]

Ramsey County District Court

File No. C3-97-010185

Carol A. Hooten, 4568 Oak Chase Road, Eagan, MN 55123 (for appellants)

Barbara M. Ross, Ann E. Walther, Best & Flanagan, L.L.P., 4000 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.



Appellants Nary Sao, Tanratha Soeung, and Vary Soeung assert that the district court erred with its determination that they were not entitled to receive uninsured motorist benefits from respondent American Family Insurance Group. The district court determined that the uninsured motorist provision of their policy did not apply because the car that hit them did not qualify as a hit-and-run vehicle. We agree and affirm.


Appellants Nary Sao, Tanratha Soeung ("Soeung"), and their two-year-old, Vary Soeung, were riding in their car on Maynard Street in St. Paul, when an unknown driver approached from the opposite direction, crossed over the center line, and collided head-on with the front of their car. Both drivers got out. Soeung asked the other driver for his driver's license and insurance card. The other driver responded that he had left both at home. Soeung proceeded to block the other car with his car, and went to a nearby house to call the police.

The police did not reach the scene until approximately an hour later. The other driver and his passenger remained at the scene during this time. Soeung and a friend walked around the other car to look at the license plate number two or three times while waiting for the police. Soeung did not attempt to get more information from the other driver during this hour, such as his name or telephone number.

When the police officer finally did arrive, he simply rolled down the window of his squad car and handed accident forms to both drivers. He also told Soeung to move his car out of the way. The other driver and his passenger pushed their car away from Soeung's and drove off, without exchanging information with Soeung or Soeung exchanging information with them.[1] Soeung thought that he wrote down the correct license plate number of the other car, but investigation revealed that it was incorrect.

The district court granted summary judgment to respondent, concluding that the other car did not qualify as a "hit-and-run vehicle" under the uninsured motorist provision of the insurance policy.


"[T]he interpretation of insurance contract language is a question of law as applied to the facts presented." Meister v. Western Nat'l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992) (citation omitted). When the material facts are not in dispute, as is the case here, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

"If the terms of an insurance policy are not specifically defined, they must be given their plain, ordinary, or popular meaning." Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130, 132 (Minn. 1984) (citation omitted). The court also looks to the meaning attributed to the term in prior cases. Boedigheimer v. Taylor, 178 N.W.2d 610, 613 (Minn. 1970).

The automobile policy at issue states that it is the duty of the insured who is involved in an auto accident to:

Tell us [the insurer] promptly. Give time, place, and details. Include names and addresses of injured persons and witnesses.

The uninsured motorist provision of the policy states that the insurer will pay compensatory damages for bodily injury to an insured who is entitled to recover from the owner or operator of an uninsured motor vehicle. It defines uninsured motor vehicle, in part, as:

A hit-and-run vehicle whose operator or owner is unknown and which causes bodily injury to you or a relative.

The term "hit-and-run vehicle" is not defined.

The Minnesota Supreme Court, however, has defined "hit-and-run" for uninsured motorist purposes as "a vehicle involved in an accident causing damages where the driver flees from the scene." Halseth v. State Farm Mut. Auto Ins. Co., 268 N.W.2d 730, 733 (Minn. 1978). This court has also adopted that definition of the phrase. Lhotka v. Illinois Farmers Ins. Co., 572 N.W.2d 772, 774 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998).

Applying the ordinary meaning and prior court interpretations, the car that hit the Soeungs' car was not a "hit-and-run vehicle," because the driver did not flee from the scene after the collision. Rather, the driver sat in his car for an hour and did not leave, even when the police came. Soeung had blocked the other car, but the driver and his passenger were finally able to push the car away from the Soeungs' car and drive away. Soeung and his friend were able to walk around the car and check the license plate several times during the hour-long wait. On these facts, we cannot conclude that the car that hit the Soeungs was a hit-and-run vehicle.

The Soeungs' attorney would have us incorporate the criminal statutes into the policy and place the burden on the other driver to come forward with information, such as his name and address, or be classified as a "hit-and-run" driver for uninsured motorist coverage purposes. But the policy at issue in this civil cause of action places a contractual duty on the insured to make a reasonable attempt to find out such information. Appellants had an hour in which to reasonably attempt to obtain information about the driver, such as his name and address, and they did not ask any questions other than to request proof of a driver's license and insurance information. The other driver stated that he could not produce these items, but there is no indication on the record that he would not have answered other questions if asked.


HUSPENI, Judge (concurring specially)

While I concur in the result reached by the majority, I write separately to express concern that unrealistic burdens not be placed upon insureds in obtaining the information insurers require when an accident occurs. Here, appellant's request for a driver's license and insurance card was met by a response that these items were both left at home. Whether this answer was deliberately evasive and misleading, and whether continued inquiry from appellant would have led to a more seriously confrontive encounter, we will never know.

Ultimately, what appellant had available to him - and arguably what every insured would have available in like circumstances - was a license plate number. If it was not the tortfeasor's car, at least one can hope that it was a car belonging to someone who could identify the tortfeasor. Unfortunately, appellant's error in writing down the license plate number in this case precludes any recovery, either from the tortfeasor, from the tortfeasor's insurer, or from appellant's UM coverage on his own car.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Neither driver complied with the requirements of Minn. Stat. § 169.09, subds. 2, 3 (1998), requiring drivers involved in accidents with other vehicles to exchange information.