Nevada Law requires all motor vehicle insurers to offer coverage protecting drivers in the event of a car accident with
underinsured motorists. The legal perimeters of these UM/UIM policies are determined not only by the terms of the policies themselves, but also by State Law. Several states, including Nevada, have adopted so called "physical contact" requirements in their UM/UIM statutes. As the name suggests, these regulations require that actual physical contact occur between the insured and adverse drivers' vehicles prior to UM/UIM recovery.
Nevada’s physical contact requirement is found at NRS 690B.020(3)(F) and provides:
For the purposes of this section the term “uninsured motor vehicle” means a motor vehicle…the owner or operator of which is unknown or after reasonable diligence cannot be found if: (1) The bodily injury or death has resulted from physical contact of the automobile with the named insured or the person claiming under him or with an automobile which the named insured or such a person is occupying; and (2) The named insured or someone on his behalf has reported the accident within the time required by NRS 484.223, 484.225 or 484.227 to the police department of the city where it occurred, or if it occurred in an unincorporated area, to the sheriff of the county or to the Nevada Highway Patrol.
In Kern v. Nevada Insurance Guaranty, 109 Nev. 752, 856 P.2d 1390 (1993), the Plaintiff sought recovery from an unknown motorist who had spilled an oily substance on the roadway causing several vehicles to slide off of the road. In rejecting the Plaintiff's claim, the Nevada Supreme Court held that: "the language of NRS 690B.020(3)(f)(1) clearly requires "physical contact" as a prerequisite for recovery under an insured's UM coverage." Id. at 757. Although the Kern Court indicated that NRS 690B.020(3)(F) "clearly requires 'physical contact' as a prerequisite for recovery…" it is important to remember that NRS 690B.020(3)(F) only applies in situations where the owner or operator of the at fault vehicle is unknown, or after reasonable diligence cannot be found.
The significance of this consideration was made clear in Estate of LoMastro ex rel. LoMastro v. Am. FamilyIns. Group, 124 Nev. 1060, 195 P.3d 339, 351-52 (Nev.2008). In LoMastro, the plaintiff sought recovery under a UM/UIM policy for injuries sustained while he was a passenger in a single vehicle accident where the driver was underinsured. Relying on the holding of Kern, the defendant argued that because there was only one vehicle involved in the accident, no physical contact had occurred and recovery was not possible under Nevada's UM/UIM statue. The Nevada Supreme Court quickly dismissed of the defendant's argument by noting that: "The purpose of the physical contact requirement, as clarified in Kern, only applies in situations where the party at fault is unknown or unidentifiable. Thus, in a case like this one, where the identity of the alleged tortfeasor is known, the physical contact requirement serves no purpose and is thus inapplicable. Id. at 1075.
Based on the reasoning of the Court in LoMastro, physical contact is not the primary concern of Nevada's UM/UIM statute; rather, the primary concern is identifying the adverse driver so as to prevent insurance fraud. The holding in LoMastro suggests that recovery under UM/UIM policies is available where there is no physical contact between two motorists, but the at fault driver remains on the scene of the accident. Less certain under the holding of LoMastro is whether recovery would be available in "miss & run" accidents where the at-fault driver causes the insured to veer off the roadway without physical contact, flees the scene, but is identifiable through corroborating evidence. Several jurisdictions have expressly allowed recovery in that situation, and it is certainly consistent with the holding of LoMastro and the plain language of NRS 690B.020(3)(f)(1).