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In the last two days, I’ve posted about cases involving car wrecks caused by stray tires or wrecks caused by other loose objects.  Today, I want to address who you can sue if you’re injured in one of those wrecks. 

Obviously, if you can track down the person that lost the tire or other object, you can sue them for their failure to maintain their vehicles or failure to secure their loads.  But in most of these wrecks, those other drivers never stop, and the injured person is never able to identify the other driver. 

So the next question is, does uninsured motorist coverage cover these claims?  Unfortunately, the answer is “no.”   The uninsured motorist statute and the most, if not all, of the Texas uninsured motorist policies contain a requirement that there must be “actual physical contact” between the uninsured vehicle and the injured person or their property.

This provision was understandably adopted to prevent fraud.  There were too many potential claimants involved in one-car wrecks who suddenly claimed that their wrecks were caused when phantom cars ran them off the road or otherwise contributed to the wrecks.  So the physical contact requirement was added so that insurance companies had a way to confirm that other vehicles were actually involved.

Based on this provision, numerous courts of appeals have held that when a vehicle looses part of its cargo that the cargo wasn’t part of the uninsured vehicle so there was no physical contact and no coverage was available.

But what about when you’re hit by the tire or some other part of the uninsured vehicle?  Unfortunately, the Texas Supreme Court recently rejected those claims.  In the March 28, 2008 opinion of Nationwide Insurance Company v Elchehimi the court was faced with a situation where a wreck was caused when a tractor-trailer lost an axle and two wheels that hit the plaintiff’s vehicle.  Rigidly applying the statute, the supreme court said that an axle and two wheels are not a vehicle so no coverage is available.

The dissent, by Justices O’Neill and Medina, took the much more sensical view.  They argued that (1) the axle and wheels were an integral part of the other vehicle, and (2) there was no risk of fraud because it was clear that they were hit by a part of another vehicle.  As a result, they would have allowed coverage in this case.  They further argued that the purpose of the UIM statute was to allow people to protect themselves, and the court’s strict interpretation of the statute frustated that purpose.

Unfortunately, we’re now left with the situation that if the injured person can’t specifically identify the vehicle that lost its cargo or parts of its vehicle then no claim can be asserted. 

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