Leo Smith v. Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company--Appeal from 225th Judicial District Court of Bexar County

No. 04-02-00646-CV
Leo SMITH,
Appellant
v.
NATIONWIDE MUTUAL INSURANCE COMPANY

and Nationwide Mutual Fire Insurance Company,

Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-12342
Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice (concurring in the judgment only)

Sandee Bryan Marion, Justice

Delivered and Filed: June 18, 2003

AFFIRMED

This case illustrates the tension between the broad remedial policy of the uninsured motorist statute and the limitation on recovery mandated by the statute's "actual physical contact" requirement. Because our duty is to apply the law as written by the Legislature, even when that application results in a harsh outcome, we affirm the judgment of the trial court.

Factual and Procedural Background

Leo Smith's vehicle was damaged after it hit a metal loading ramp that detached and fell from a tractor-trailer rig traveling beside Smith on a San Antonio freeway. The truck driver did not stop and Smith was unable to obtain identifying information about the truck. Smith filed a claim for uninsured motorist (UM) benefits with Nationwide, his insurer. Nationwide denied the claim based on Article 5.06-1(2)(d) of the Texas Insurance Code, which requires "actual physical contact" between the insured vehicle and the unknown or uninsured vehicle or trailer.

Nationwide filed traditional and no-evidence motions for summary judgment, which were granted. On appeal, Smith alleges the trial court erred in finding no actual physical contact and granting summary judgment. Nationwide answers that contact between Smith's vehicle and cargo or debris from the unknown trailer is not actual physical contact between Smith's vehicle and the unknown trailer itself. Smith's second issue alleges that the trial court erred in granting Nationwide's no-evidence summary judgment because the motion contained only conclusory allegations of no evidence and failed to specify the elements on which there was no evidence.

Standard of Review

We review the grant of a traditional summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). In deciding whether a disputed material fact issue exists, we indulge every reasonable inference in the non-movant's favor. See id. A no-evidence summary judgment is equivalent to a pretrial directed verdict and is reviewed for legal sufficiency. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). A no-evidence motion is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See id. A scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When, as here, the trial court does not specify the grounds for its ruling, summary judgment will be affirmed if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Actual Physical Contact

Analysis of this appeal begins with Article 5.06-1 of the Texas Insurance Code, which reads:

.... this article shall require that in order for the insured to recover under the uninsured motorist coverages where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.

See Tex. Ins. Code Ann. 5.06-1(2)(d) (Vernon 1999).

The relevant provision of Smith's insurance policy provides that Nationwide "will pay damages which a covered person is legally entitled to recover ... because of... property damage caused by an accident." The policy defines "uninsured motor vehicle" as "a land motor vehicle or trailer of any type ... which is a hit and run vehicle whose operator or owner cannot be identified and which hits ... a vehicle which you or any family member are occupying or your covered auto...."

The term "actual physical contact" was added to the Insurance Code in 1977 to prevent fraudulent insurance claims against "phantom cars" in single-car accidents. See Tex. Farmers Ins. Co. v. DeVille, 988 S.W.2d 331, 335 (Tex. App.--Houston [1st Dist.] 1999, no pet.)(Cohen, J., concurring). The requirement of actual physical contact has been interpreted as providing two methods of covered contact: indirect contact and direct contact. See Latham v. Mountain States Mut. Cas. Co., 482 S.W.2d 655, 657 (Tex. Civ. App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.). Indirect contact occurs between car A and car C when car A strikes car B and propels it into car C. Id. Since 1972, courts have consistently declined parties' invitations to extend the indirect contact rule beyond this example, originally set forth in Latham. See, e.g., Williams v. Allstate Ins. Co., 849 S.W.2d 859, 861 (Tex. App.--Beaumont 1993, no writ). Nationwide argues that there was no such indirect contact in this case. We agree.

Nationwide also argues that there was no direct contact between Smith's vehicle and the unknown trailer. It relies on Williams v. Allstate where summary judgment in favor of the defendant insurance company was affirmed after the insured hit pieces of steel that fell from an unidentified truck as it pulled into a steel plant. See id. Nationwide also points to DeVille, where the First Court of Appeals affirmed summary judgment in favor of the defendant insurance company after the insured hit a water pump which fell from the bed of an unknown truck and hit the insured and her vehicle. See DeVille, 988 S.W.2d at 333-34.

Smith argues that because his vehicle collided with a component of the unknown trailer, his case is distinguishable from those accidents caused by cargo left in the road. He analogizes the facts of his case to those in Moore v. State Farm Mut. Auto. Ins. Co., 792 S.W.2d 818 (Tex. App.--Houston [1st Dist.] 1990, no writ), where a trailer hauled by a westbound truck came loose, crossed into eastbound traffic, and struck the plaintiff's car. The First Court of Appeals reversed the trial court's take-nothing judgment, noting that the character of the accident was such that it would not ordinarily occur in the absence of negligence. See id. at 820.

This case is unlike other reported cases because the summary judgment record shows the ramp was not cargo; rather, it was a component of the trailer that detached from the trailer immediately before colliding with Smith's vehicle. Smith contends, essentially, that the ramp was not on the road long enough to become debris; or at the very least, a fact question exists about whether the ramp was debris. We need not determine whether the ramp was debris-- whatever it was, it was not a trailer (1) or a motor vehicle (2), and Smith's policy provides UM coverage only if a "land motor vehicle or trailer" is involved.

After examining the entire record, we hold that the trial court did not err in granting summary judgment in favor of Nationwide. Because the record conclusively established the absence of any actual physical contact between Smith's vehicle and a land motor vehicle or trailer, it is unnecessary for us to reach Smith's second issue. The judgment of the trial court is affirmed in all respects.

Catherine Stone, Justice

1. A trailer is defined as "a vehicle that is designed or used to carry a load wholly on the trailer's own structure... and is drawn or designed to be drawn by a motor vehicle." Tex. Transp. Code Ann. 501.002(22) (Vernon 2003).

2. The Transportation Code also defines "motor vehicle" as "any motor driven or propelled vehicle required to be registered under the laws of this state..." Tex. Transp. Code. Ann. 501.002 (14) (Vernon 2003).