Tommie WILLIAMS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
No. 09-92-047 CV.
Court of Appeals of Texas, Beaumont.
Feb. 25, 1993.
849 S.W.2d 859
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
Gordon R. Pate, Christy Amuny, Pate & Dodson, Beaumont, for appellee.
OPINION
WALKER, Chief Justice.
This appeal arises from an incident which occurred in Orange County on April 19, 1991. In the suit below, plaintiff Tommy Williams alleges that he sustained injuries as a result of an accident resulting from plaintiff‘s vehicle coming in contact with a piece of steel which plaintiff contends fell from an unidentified truck. Appellant brought his lawsuit claiming that he was entitled to recover damages under the uninsured motorist provision of his motorist insurance policy.
Appellee, Allstate Insurance Company, filed its Motion for Summary Judgment based on the ground that there was no actual physical contact between the plaintiff‘s vehicle and the unidentified uninsured vehicle, as is required by law. Allstate contends that since there was no actual physical contact, it was entitled to a summary judgment as a matter of law. On November 1, 1991, the 60th District Court of Jefferson County, Texas, granted Allstate‘s Motion for Summary Judgment on the grounds that because there was no actual physical contact, there was no genuine issue of material fact.
Appellant Williams brings two points of error for review by this Court. Point of error one contends that the trial court erred in granting defendant‘s Motion for Summary Judgment for the reason that it is contrary to the overwhelming and greater weight and preponderance of the evidence adduced and there is no evidence to support same. Point of error two contends that the trial court erred in granting defendant‘s Motion for Summary Judgment for the reason that it is contrary to both law and fact. We shall consider both points of error together.
The accident made the basis of appellant‘s original lawsuit occurred on Interstate 10, between Beaumont, Texas and
Following the appellant‘s deposition, Allstate filed its Motion for Summary Judgment. The trial court granted Allstate‘s motion thereby entering judgment in favor of appellee, Allstate.
We set forth
The forms promulgated under the authority of this section shall include provisions that, regardless of the number of persons insured, policies or bonds applicable, vehicles involved, or claims made, the total aggregate limit of liability to any one person who sustains bodily injury or property damage as the result of any one occurrence shall not exceed the limit of liability for these coverages as stated in the policy and the total aggregate limit of liability to all claimants, if more than one, shall not exceed the total limit of liability per occurrence as stated in the policy; and shall provide for the exclusion of the recovery of damages for bodily injury or property damage or both resulting from the intentional acts of the insured. The forms promulgated under the authority of this section 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. (emphasis ours)
Act of May 6, 1977, 65th Leg., ch. 182, 1977 Tex.Gen.Laws 370, amended by Acts 1991, 72nd Leg., ch. 242, § 2.08, 1991 Tex.Gen.Laws 957.
Texas appellate courts have consistently held that actual physical contact is a necessary requirement in order to recover uninsured motorists benefits.
Appellant‘s contention is that there was an “uninterrupted chain of physical events” set in motion by the operator of the uninsured vehicle which resulted in injuries to the plaintiff. Appellant contends that this “uninterrupted chain of physical events” is sufficient to justify the requirements of
Appellant further suggests that the actual physical contact requirement was extended by the indirect contact rule to encompass situations such as the one before us, citing Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex. Civ.App.—Houston [1st Dist.] 1972, writ ref‘d n.r.e.). Appellant‘s position is that since appellant hit a piece of iron in the road, which had allegedly fallen off a truck, that appellant had indirectly made physical contact with the truck itself. This indirect contact rule was set forth in the Latham decision to fit the particular facts and circumstances of that case. In Latham, vehicle A struck vehicle B thereby propelling vehicle B into vehicle C. The Houston Court held that such indirect con
Latham was decided in 1972, and since that time Texas courts have had occasion to interpret this indirect contact rule, and have chosen not to extend the indirect contact rule beyond that which was originally set out in Latham. In Goen v. Trinity Universal Ins. Co., 715 S.W.2d 124 (Tex. App.—Texarkana 1986, no writ), the trial court granted Trinity a summary judgment on grounds that there was no actual physical contact and thus the uninsured motorist provision did not apply. Goen stopped at an intersection behind a white car and both were headed south. Morgan also stopped at the intersection, but was across the intersection headed north. When the light turned green, the white car turned left in front of Morgan, causing Morgan‘s car to travel into Goen‘s lane and strike Goen‘s car. Neither Morgan nor Goen came into contact with the white car, which was unidentified. The Goens sued their insurance carrier to collect benefits under the uninsured motorist provision of their policy. The Goens argued that the uninsured motorist clause applied under a theory of “indirect contact” as set out in Latham. The Texarkana Court held that the ‘indirect contact’ rule does not apply here because the uninsured car did not hit any car. Id. at 125. That court further stated that in
It is uncontroverted, in our case, that there was no actual physical contact between the plaintiff‘s vehicle and the unidentified, uninsured vehicle. At no time did the appellant‘s car ever hit or make contact with the truck in front of him. We must assume that our Legislature recognized the potential unfairness of the actual physical contact requirement when it amended
Therefore, the present state of the law following the enactment of
The thrust of
Obviously, we can hypothetically create many scenarios where
We choose not to liberally tamper with the present state of the law in this regard and leave such to those who may be more inclined.
Having considered
AFFIRMED.
I respectfully dissent. Since this is a summary judgment case, the majority is holding there are no genuine issues of material fact to be presented to a jury and Allstate is entitled to judgment as a matter of law. However, the majority espouses both an actual physical contact requirement under the statute and an indirect contact rule under case law. While they are undoubtedly correct under the strict actual physical contact analysis; if they still recognize the indirect contact rule1, there is, at least, a fact question as to whether there was indirect contact.
I am inclined to take the majority‘s invitation “to liberally tamper with the present state of the law” and go even further by holding the facts of the present case meet the indirect contact rule as a matter of law. The load obviously had physical contact with the uninsured vehicle. The load then had contact with appellant‘s vehicle. This satisfies the indirect contact rule. Had the load dropped from the uninsured truck and appellant swerved to avoid the load, thus avoiding contact, then those facts would be more akin to Goen v. Trinity Universal Ins. Co., 715 S.W.2d 124 (Tex.App.—Texarkana 1986, no writ) and arguably the indirect contact rule would not apply. However, in that event, there would still be a fact issue for the jury.
I would reverse the summary judgment and remand for a trial on the merits. I dissent to the affirmance.