Lopez

Appeal from a declaratory judgment establishing an insurer’s nonliability under the uninsured motorist provisions of an automobile insurance policy.

Lopez was driving the insured automobile, and was struck by an automobile from across the center divider driven by Clements. Clements had been struck by a third vehicle, which threw his ear into the path of the Lopez automobile. The third vehicle continued on its way, and its identity is unknown. For purposes of this action it was stipulated that the act of the hit-and-run vehicle was a proximate cause of the accident.

The policy covering the Lopez vehicle contained the uninsured motorist coverage required by Insurance Code, section 11580.2. It provided, in statutory terms, that the insurer would pay all sums which the insured would become legally entitled to recover as damages for bodily injury from the owner or operator of an uninsured motor vehicle. An uninsured motor vehicle included a hit-and-run automobile “which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying. . . .” (Italics added.)

The sole issue is whether there was…