Insurance – Auto – UM – Falling Tire – ‘Contact’ Requirement

Prouse v. Bituminous Casualty Corp. (Lawyers Weekly No. 12-07-0810, 26 pp.) (Sam Ervin IV, J.) (Robert C. Hunter, J., dissenting) Appealed from Stanly County Superior Court. (Richard D. Boner, J.) N.C. App. Full-text opinion.

Holding: Plaintiff’s accident occurred when a tire fell off another vehicle and struck the truck in which plaintiff was riding, causing the driver to lose control. There was no contact between the truck and the other vehicle; therefore, G.S. § 20-279.21(b)(3)(b) does not apply, and plaintiff is not entitled to uninsured motorist coverage.

We affirm the trial court’s grant of defendants’ motion to dismiss.

G.S. § 20-279.21(b)(3)(b) provides for uninsured motorist coverage when an insured “has sustained bodily injury as the result of a collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained….”

Our courts have interpreted this statute to require physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver for the uninsured motorist provisions of the statute to apply. Moore v. Nationwide Mut. Ins.  Co., 191 N.C. App. 106, 664 S.E.2d 326, aff’d, 362 N.C. 673, 669 S.E.2d 321 (2008).

Moore is controlling in this case, so the complaint was properly dismissed.

The Moore plaintiff alleged that his vehicle hit a log that had fallen off a truck and was lying in the middle of the road.

The facts at issue in this case are indistinguishable on any material basis from those in Moore.  As in Moore, plaintiffs’ complaint alleged that damages resulted from a collision between a vehicle in which plaintiff James Prouse was riding and an object that had fallen from an unidentified vehicle rather than from physical contact between the vehicle in which Mr. Prouse was a passenger and the vehicle that allegedly carried the object struck by the truck. Although plaintiffs attempt to distinguish Moore on the grounds that the object that struck the vehicle in which Mr. Prouse was riding fell from a “hit-and-run” vehicle and struck the vehicle in which Mr. Prouse was riding in one continuous motion rather than falling from the “hit-and-run” vehicle and lying in the roadway for some time before the collision, we do not believe that this distinction is material.

Even though Moore was decided pursuant to a summary judgment standard, we reach the same result by considering the allegations of the complaint in the light most favorable to plaintiffs.

We do not read Moore as implying that the extent to which § 20-279.21 authorizes a direct claim against an uninsured motorist carrier hinges upon whether a “natural object” is left in the roadway as compared to whether such an object fell from a moving vehicle.

Affirmed.

Dissent

(Hunter, J.) Applying the summary judgment standard in Moore, we concluded the plaintiff had not met his burden in that he had produced “no evidence show[ing] from what vehicle, truck or trailer, if any, the pine tree log fell from, when it fell, or how long it had been lying on the interstate prior to impact.” Thus, the plaintiff in Moore did not produce any evidence to support an essential element of his claim under § 20-279.21(b)(3)(b).

I interpret plaintiffs’ complaint as being consistent with our case law in alleging an indirect collision with a hit-and-run vehicle. Thus, I conclude the facts alleged in this case are distinguishable from those in Moore and the standard of review applied in Moore provides a critical difference.

Plaintiffs alleged the vehicle in which Mr. Prouse was a passenger “was struck by a moving vehicle tire, which fell from a moving vehicle.” Thus, as we are required to treat plaintiffs’ allegations as true, this case — unlike Moore — necessarily involves a second vehicle and a collision with a part of that vehicle or its cargo.

I would reverse.