The physical contact requirement has been approved by several states as part
of the insurance policy language.1 At least 24 states
have adopted such a requirement via state statute.2 Seven of those states require "actual" physical contact by statute.3
The purpose of the "physical contact" requirement is to prevent fraudulent
claims where there was no other vehicle involved in the accident.4 Some of these states allow coverage without physical contact if there is independent
corroborative evidence of the cause of the accident.5 In some cases, constructive contact or a showing that the hit-and-run vehicle
was the proximate cause of the accident will suffice.6
Other jurisdictions have held that requiring claimants in "miss-and-run"
cases to corroborate facts with competent testimony other than their own testimony
violates public policy.7 Still, other jurisdictions
find that a physical contact requirement altogether in uninsured motorist coverage
is in violation of public policy.8
A prevalent issue that arises in states that have adopted a physical contact
rule is to what extent is the requisite contact established. For example, is
there uninsured motorist coverage when damage is caused by cargo falling from
an uninsured vehicle? Is there uninsured motorist coverage when a wheel flies
off of a tractor-trailer and causes a chain reaction of damages down a freeway?
The physical contact requirement is satisfied in some jurisdictions when
the hit-and-run driver sets in motion a chain reaction; namely, an unbroken
sequence of events with a definable beginning and end, that causes the claimant's
injury.9 Nine states have expressly held that the
requisite contact occurs when an "integral part" of an unidentified vehicle,
cargo dropped from an unidentified vehicle, or an object propelled by the tire
of an unidentified vehicle collides with the insured vehicle.10 Of these nine states, six have expressly referenced a requirement of temporal
proximity for coverage.11 Two others involved scenarios
in which temporal proximity was present.12 In only
one of the nine states was there no reference to temporal proximity.13
Nine states14 have not addressed this particular
issue relating to contact with an "integral part," 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.15 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. Only South Carolina has expressly
rejected coverage when "an integral part" of an unidentified vehicle (a wheel
bearing) struck the insured vehicle.16
Like several states, Texas has a statutory physical contact requirement.
However, unlike many states, that requirement is "actual" physical contact.
Texas appellate courts have uniformly concluded that no uninsured motorist coverage
is available where a collision occurs with cargo which has fallen from a vehicle
the owner of which is unknown because such collision does not meet the physical
contact requirement.17 Also, the San Antonio Court
concluded that the requisite contact did not occur in a case involving a collision
between an insured's vehicle and a loading ramp of a semitrailer which had detached
from the trailer immediately before colliding with the insured's vehicle. SeeSmith v. Nationwide
Mut. Ins., 2003 WL 21391534 at **2-3 (Tex. App. June 18, 2003, pet. denied) (mem. op.). This is an unpublished
Texas decision 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. The court's conclusion was premised on the fact that the ramp was not
a trailer or a motor vehicle and therefore did not fall within the uninsured
motorist coverage provided only if a "land motor vehicle or trailer" is involved.
However, in Elchehimi v. Nationwide Ins.,
183 S.W.3d 833 (Tex. App. 2005), petition for rev.
filed (Mar. 15, 2006), one Texas appellate court questioned whether injuries
caused to the insured when his car was struck by an axle and tractor driving
in the opposite direction on a highway were covered under the insured's uninsured
motorist policy. The court adopted the rule that when 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. However, the court remanded the matter to the trial court on the
basis of a fact issue as to whether a set of wheels with the axle attached from
a tractor-trailer was an integral part of an unindentified vehicle that collided
with the insured's car as a result of an unbroken chain of events with a clearly
definable beginning and ending occurring in a continuous sequence.
Five of the other states that have statutory "actual" physical contact requirements
also find uninsured motorist coverage exists when an integral part of the uninsured
vehicle contacts the insured's vehicle.18 Other
courts require evidence of some causal connection with the unknown vehicle in
accidents where the claimant's vehicle comes in contact with a detached piece
of the unknown vehicle.19
Dana Harbin is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes
in insurance coverage and bad faith involving all types of insurance policies,
both first and third party. Ms. Harbin earned her BA degree from the University
of Texas in Arlington and her JD degree from the University of Texas at Austin.
She can be reached at