Mohamad Elchehimi, Individually and as Parent and Next Friend of K.E. and L.E., Minor Children v. Nationwide Insurance Company--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00298-CV

Mohamad Elchehimi, Individually

and as Parent and Next Friend of

K.E. and L.E., Minor Children,

Appellant

v.

Nationwide Insurance Company,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 03-C-3352

Opinion

Mohamad Elchehimi filed suit to recover under the uninsured motorist provisions of his automobile insurance policy for injuries his children and he suffered after his car was struck by an axle and attached wheels which broke away from a truck tractor driving in the opposite direction on a divided highway. The trial court granted Nationwide Insurance Company s summary judgment motion. Elchehimi contends in his sole issue that a genuine issue of material fact remains on the question of whether the collision is sufficient to constitute actual physical contact with the semi as required for uninsured motorist coverage under article 5.06 1(2)(d) of the Insurance Code. We will reverse and remand.

 TexasLaw

Article 5.06 1(2)(d) provides in pertinent part:

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.

Tex. Ins. Code Ann. art. 5.06 1(2)(d) (Vernon Supp. 2005).

Texas courts have uniformly concluded that this statute excludes from coverage a collision with cargo which has fallen from a vehicle the owner of which is unknown. E.g. Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 332-34 (Tex. App. Houston [1st Dist.] 1999, no pet.); Republic Ins. Co. v. Stoker, 867 S.W.2d 74, 77-78 (Tex. App. El Paso 1993), rev d on other grounds, 903 S.W.2d 338 (Tex. 1995); Williams v. Allstate Ins. Co., 849 S.W.2d 859, 859-61 (Tex. App. Beaumont 1993, no writ).

The San Antonio Court has concluded that the requisite contact did not occur in a case involving a collision between an insured s vehicle and a component of a semitrailer which had detached from the trailer immediately before colliding with the insured s vehicle. See Smith v. Nationwide Mut. Ins. Co., 2003 WL 21391534 at **2-3 (Tex. App. San Antonio June 18, 2003, pet. denied) (mem. op.). This is the only Texas decision our research has disclosed on the issue of whether uninsured motorist coverage should be provided when an integral part of an unidentified vehicle collides with an insured s vehicle. In our view however, the San Antonio Court did not give adequate weight to the distinction between cargo which has fallen from an unidentified vehicle and an integral part of an unidentified vehicle which strikes an insured s vehicle in an unbroken chain of events.

A review of decisions from other states which require physical contact as a prerequisite to uninsured motorist coverage reveals that a majority of these states which have addressed this issue have concluded that the requisite contact is established when an integral part of an unidentified vehicle collides with an insured s vehicle in an unbroken chain of events. See Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 131-32 & nn. 10-12 (Tex. 2004) (reviewing decisions of other states to resolve novel coverage issue).

States With Statutes Requiring Physical Contact

According to our research, twenty-three states[1] besides Texas have statutes which require physical contact. Of these, nine have expressly held that the requisite contact occurs when an integral part of an unidentified vehicle, cargo dropped from an unidentified vehicle,[2] or an object propelled by the tire of an unidentified vehicle collides with the insured vehicle. See Thi Pham v. Allstate Ins. Co., 206 Cal. App. 3d 1193, 1198 (Cal. App. 2d Dist. 1988); State Farm Fire & Cas. Co. v. Guest, 203 Ga. App. 711, 417 S.E.2d 419, 422 (1992); Ill. Natl. Ins. Co. v. Palmer, 116 Ill. App. 3d 1067, 452 N.E.2d 707, 708-09 (Ill. App. 1st Dist. 1983); Brooks v. State Farm Mut. Automobile Ins. Co., 855 So. 2d 419, 423-25 (La. App. 4th Cir. 2003); Adams v. Zajac, 110 Mich. App. 522, 313 N.W.2d 347, 349 (1981); S. Farm Bureau Cas. Ins. Co. v. Brewer, 507 So. 2d 369, 370-72 (Miss. 1987); Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 580 N.E.2d 399, 401 (1991); Barfield v. Ins. Co. of N. Am., 59 Tenn. App. 631, 443 S.W.2d 482, 486 (1968); Theis v. Midwest Sec. Ins. Co., 232 Wis. 2d 749, 606 N.W.2d 162, 167-68 (2000).

Of these nine states, six have expressly referenced a requirement of temporal proximity for coverage. See Thi Pham, 206 Cal. App. 3d at 1196-97 ( uninterrupted chain with no intervening force to break the chain of causation ); Palmer, 452 N.E.2d at 708 ( continuous and contemporaneously transmitted force ); Brooks, 855 So. 2d at 423-24 ( unbroken chain of events ); Brewer, 507 So. 2d at 372 ( unbroken chain of events ); Adams, 313 N.W.2d at 349 ( continuous and contemporaneously transmitted force ); Killakey, 680 N.E.2d at 401 ( unbroken chain of events ). Two others involved scenarios in which temporal proximity was present. See Barfield, 443 S.W.2d at 486 (requiring coverage when a wheel of one vehicle hurls an object, such as a stone, into and against another vehicle ); Theis, 606 N.W.2d at 164, 167-68 (requiring coverage when leaf spring was propelled into the plaintiff s vehicle by the passing semi-tractor ). In only one of the nine was there no reference to temporal proximity. See Guest, 417 S.E.2d at 422 (requiring coverage when insured vehicle struck tire assembly which was negligently attached to an unknown vehicle from which it fell and left in the roadway ).

West Virginia has not addressed whether contact by an integral part of an unidentified vehicle would suffice, but the West Virginia Supreme Court has held that actual contact is not required if the insured shows a close and substantial physical nexus between an unidentified hit-and-run vehicle and the insured vehicle. [3] Dunn v. Doe, 206 W. Va. 684, 527 S.E.2d 795, 800 (1999).

North Carolinaand Washington have required coverage in cases involving indirect contact, in which the unidentified vehicle collided with a vehicle which in turn collided with the insured s vehicle.[4] See McNeil v. Hartford Accident & Indemn. Co., 84 N.C. App. 438, 352 S.E.2d 915, 917 (1987); Johnson v. State Farm Mut. Automobile Ins. Co., 70 Wash. 2d 587, 424 P.2d 648, 649-50 (1967); accord 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.).

Nine states[5] have not addressed this particular issue, although the Nevada Supreme Court has concluded that an accident caused by oil purportedly spilled on the highway by an unknown vehicle is not covered. See Kern v. Nev. Ins. Guar. Assn., 109 Nev. 752, 856 P.2d 1390, 1394 (1993). However, that court did suggest that coverage may be required for a collision between an uninsured/hit-and-run driver or automobile (or an integral part of the automobile) and an insured s vehicle. Id.

Finally, only South Carolina has expressly rejected coverage when an integral part of an unidentified vehicle (a wheel bearing) struck the insured vehicle. See Davis v. Doe, 285 S.C. 538, 331 S.E.2d 352, 353-54 (1985).

Thus, nine of the thirteen states which have statutes requiring physical contact and which have addressed coverage under a scenario similar to the facts of this case would require coverage under the facts before us. Three others likely would.[6] Only one has expressly rejected coverage under this scenario.

States With Statutes Requiring Actual Physical Contact

Justice Cohen authored a concurring opinion in Deville in which he reviewed decisions from other states requiring coverage when a part of an unidentified vehicle strikes the insured s vehicle. 988 S.W.2d at 335-36 (Cohen, J., concurring). Although Justice Cohen characterized these decisions as highly persuasive and representative of the great weight of authority, he declined to follow them because they did not involve statutes requiring actual physical contact. Id. at 336. Here, we part ways with Justice Cohen.

According to our research, seven other states have statutes requiring actual physical contact. See Ga. Code Ann. 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); La. Rev. Stat. Ann. 22:680(1)(d)(i); Miss. Code Ann. 83-11-103(c)(v); Neb. Rev. Stat. 44-6405(3); N.D. Cent. Code 26.1-40-15.1; Tenn. Code Ann. 56-7-1201(e)(1)(A). Five of these states would require coverage under the facts before us. See Guest, 417 S.E.2d at 422; Palmer, 452 N.E.2d at 708-09; Brooks, 855 So. 2d at 423-25; Brewer, 507 So. 2d at 371-72; Barfield, 443 S.W.2d at 486. The others, Nebraska and North Dakota, have not addressed this particular issue.

Thus, a clear majority of states with statutes requiring actual physical contact would require coverage under the facts before us.

States With Statutes Not Requiring Physical Contact

Twenty-six states[7] have statutory schemes for uninsured motorist coverage which do not expressly require physical contact as a prerequisite for coverage for a collision involving an unidentified vehicle. Four of these states have approved policy language requiring contact as a prerequisite for coverage.[8] See State Farm Mut. Automobile Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276, 279-80 (2004); Hammon v. Farmers Ins. Co. of Idaho, 109 Idaho 286, 707 P.2d 397, 399-400 (1985); Allied Fid. Ins. Co. v. Lamb, 361 N.E.2d 174, 177 n.1 (Ind. App. 1977); Shelter Mut. Ins. Co. v. Arnold, 169 S.W.3d 855, 856 (Ky. 2005).

Of these four states, Indiana, has held that sufficient contact is established when an insured s vehicle collides with a load of debris which has fallen from an unidentified vehicle if the collision occurred as part of a continuous sequence of events that clearly began with a load of debris falling from an unidentified vehicle and ended in [the insured s] contact with the pile of debris. [9] Will v. Meridian Ins. Group, Inc., 776 N.E.2d 1233, 1237 (Ind. App. 2002).

Kentucky has required coverage in cases involving indirect contact, in which the unidentified vehicle collided with a vehicle which in turn collided with the insured s vehicle. See Arnold, 169 S.W.3d at 857. The court observed that this scenario:

is conceptually the same as if the hit-and-run motorist had first struck a stationary object, such as a road sign, driving the sign forward into Arnold s vehicle, and causing the sign to interpose itself between her vehicle and that of the tortfeasor, preventing the sort of intimate and literal physical contact urged by Shelter.

Id. The court held that coverage would be required under either scenario.[10] Id. In view of the Kentucky court s rationale, it appears likely that the Kentucky court would require coverage under the facts before us.

Thus, it appears that two of the four states which allow a physical contact requirement in an insurance policy even though not required by statute would require coverage under the facts before us. The other two have not addressed this particular issue.

Summary

A clear majority of those states which have statutes requiring physical contact and which have addressed coverage under a scenario similar to the facts of this case would require coverage under the facts before us. Three others likely would. Half of those states which allow a physical contact requirement in an insurance policy even though not required by statute would likewise require coverage. We find this majority position highly persuasive and will apply it to the facts of this case.

Therefore, we hold that when an integral part of an unidentified vehicle collides with an insured s vehicle as a result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence, then the requisite actual physical contact has occurred and coverage is required.

Application

Elchehimi stated in his summary judgment affidavit:

We were traveling southbound in the 1800 block of U.S. Highway 287 bypass. An unidentified tractor trailer traveling northbound in the same block broke apart. A set of wheels with an attached axle traveled through the median and into oncoming southbound traffic and struck our vehicle causing me to lose control. The unidentified truck driver did not stop.

Viewed in the light most favorable to Elchehimi the non-movant, a genuine issue of material fact remains on the question of whether an integral part of an unidentified vehicle collided with his car as a result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence.

Accordingly, we sustain Elchehimi s sole issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed December 28, 2005

[CV06]

[1] Alaska Stat. 28.20.445(f); Ariz. Rev. Stat. 20-259.01(M); Cal. Ins. Code 11580.2(b)(1); Ga. Code Ann. 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); IowaCode 516 A. 1; Kan. Stat. Ann. 40-284(e)(3); La. Rev. Stat. Ann. 22:680(1)(d)(i); Mich. Comp. Laws 257.1112; Miss. Code Ann. 83-11-103(c)(v); Neb. Rev. Stat. 44-6405(3); Nev. Rev. Stat. 690B.020(3)(f)(1); N.Y. Ins. Law 5217; N.C. Gen. Stat. 20-279.21(b)(3)(b); N.D. Cent. Code 26.1-40-15.1; Or. Rev. Stat. 742.504(2)(f); S.C. Code Ann. 38-77-170(2); Tenn. Code Ann. 56-7-1201(e)(1)(A); Utah Code Ann. 31A-22-305(5); Va. Code Ann. 38.2-2206(D); Wash. Rev. Code 48.22.030(8); W. Va.Code 33-6-31(e)(iii); Wis. Stat. 632.32(4)(a)(2)(b). Some of these states allow coverage without physical contact if there is independent corroboration of the cause of the insured s accident.

[2] As stated, Texas courts of appeals have denied coverage for collisions with cargo dropped from an unidentified vehicle. E.g. Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 332-34 (Tex. App. Houston [1st Dist.] 1999, no pet.).

[3] This test arguably includes an element of temporal proximity.

[4] Cases involving indirect contact via an intermediary vehicle necessarily include an element of temporal proximity.

[5] Alaska, Arizona, Iowa, Kansas, Nebraska, Nevada, Oregon, Utah, and Virginia.

[6] We do not include Nevada among these, but the language in Kern suggests that Nevada may require coverage under similar circumstances.

[7] Ala. Code 32-7-23; Ark. Code Ann. 23-89-403; Col. Rev. Stat. 10-4-609; Conn. Gen. Stat. 38a-336; Del. Code Ann. tit. 18, 3902(a)(3); Fla. Stat. 627.727; Haw. Rev. Stat. 431:10C-301; Idaho Code Ann. 41-2502; Ind. Code 27-7-5-2; Ky. Rev. Stat. Ann. 304.20-020; 24-A Me. Rev. Stat. Ann. 2902; Md. Ins. Code Ann. 19-509; Mass. Gen. Laws ch. 175, 113L; Minn. Stat. 65B.49; Mo. Rev. Stat. 379.203; Mont. Code Ann. 33-23-201; N.H. Rev. Stat. Ann. 264:15; N.J. Stat. Ann. 17:28-1.1; N.M. Stat. 66-5-301; Ohio Rev. Code Ann. 3937.18; Okla. Stat. tit. 36, 3636; 75 Pa. Consol. Stat. 1702; R.I. Gen. Laws 27-7-2.1; S.D. Codified Laws 58-11-9; Vt. Stat. Ann. tit. 23 941; Wyo.Stat. Ann. 31-10-101.

[8] Conversely, 18 states have found such policy language to be invalid because their statutory schemes did not require contact. See State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So. 2d 917, 920 (1973); Farmers Ins. Exch. v. McDermott, 34 Colo. App. 305, 527 P.2d 918, 919-20 (1974); Streitweiser v. Middlesex Mut. Assurance Co., 219 Conn. 371, 593 A.2d 498, 502-03 (1991); State Farm Mut. Automobile Ins. Co. v. Abramowicz, 386 A.2d 670, 674 (Del. 1978); Brown v. Progressive Mut. Ins. Co., 249 So. 2d 429, 430 (Fla. 1971); DeMello v. First Ins. Co. of Haw., Ltd., 55 Haw. 519, 523 P.2d 304, 310 (1974); Lanzo v. State Farm Mut. Automobile Ins. Co., 524 A.2d 47, 50 (Me. 1987); Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 424 N.E.2d 234, 238-39 (1981); Halseth v. State Farm Mut. Automobile Ins. Co., 268 N.W.2d 730, 733 (Minn. 1978); Dawson v. Denney-Parker, 967 S.W.2d 90, 93 (Mo. App. 1998); McGlynn v. Safeco Ins. Cos. of Am., 216 Mont. 379, 701 P.2d 735, 739-40 (1985); Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 364 A.2d 883, 884-85 (1976); Montoya v. Dairyland Ins. Co., 394 F. Supp. 1337, 1342 (D.N.M. 1975); Girgis v. State Farm Mut. Automobile Ins. Co., 75 Ohio St. 3d 302, 662 N.E.2d 280, 283 (1996); Biggs v. State Farm Mut. Automobile Ins. Co., 569 P.2d 430, 433-34 (Okla. 1977); Webb v. United Servs. Automobile Assn., 227 Pa. Super. 508, 323 A.2d 737, 744 (1974); Pin Pin v. Kemper Ins. Cos., 431 A.2d 416, 418-19 (R.I. 1981); Clark v. Regent Ins. Co., 270 N.W.2d 26, 30-31 (S.D. 1978).

[9] Like Michigan, Indiana considers temporal proximity a significant but not dispositive factor. Will v. Meridian Ins. Group, Inc., 776 N.E.2d 1233, 1237 (Ind. App. 2002) (quoting Berry v. State Farm Mut. Automobile Ins. Co., 219 Mich. App. 340, 556 N.W.2d 207, 212 (1996)).

[10] Like the indirect contact cases we discussed hereinabove involving intermediary vehicles, the facts in Arnold necessarily include an element of temporal proximity. See note 4, supra.