Opinion
Civil Action No: 99-3424, Section: "D"(3)
June 1, 2000
MINUTE ENTRY
Before the court is a Motion for Summary Judgment filed by the Defendant, CIGNA Insurance Company, (ACE American). Plaintiff, Ricky J. Guidry, has filed a memorandum in opposition. The motion, set for hearing, Wednesday, May 31, 2000, is before the court on briefs without oral argument.
CIGNA Insurance Company is now known as ACE American Insurance.
Having considered the memoranda of counsel and the applicable law the court finds that Defendant's motion should be granted.
BACKGROUND
On March 24, 1998, plaintiff was operating a company vehicle in the course of his employment. When he attempted to pass an 18-wheeler truck, Plaintiff was injured when a log flew through his windshield and struck him in the face.
Plaintiff seeks to recover under the uninsured motorist policy issued to his employer by Defendant ACE American. ACE American contends that there is no coverage under the policy because there was no physical contact as defined and required by the policy and/or that Plaintiff cannot prove fault of the alleged adverse driver.
ANALYSIS
A party is entitled to summary judgment when it demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. A party opposing a motion for summary judgment must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial. In considering a motion for summary judgment, the district court will review the facts and draw all inferences in the light most favorable to the party opposing the motion. The substantive law determines which facts are material. The Uninsured Motorist Endorsement
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Ragas v. Tennessee Gas Pipeline, Co., 136 F.3d 455, 458 (5th Cir. 1998).
Ragas, 136 F.3d at 458.
Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The insurance policy issued to Plaintiff's employer by Defendant included an uninsured motorist endorsement. This endorsement provides that under certain conditions, the Defendant will pay damages the insured is legally entitled to recover from the owner or driver of an uninsured vehicle. Therefore, in order to recover, the plaintiff must prove 1) that the 18-wheeler was an "uninsured motor vehicle" as defined by the terms of the policy; and 2) that the driver of the 18-wheeler was at fault.
Louisiana Uninsured Motorist Coverage endorsement included in insurance policy attached as Exhibit C to Defendant's Memorandum in Support of Motion for Summary Judgment at Paragraph A
We will pay all sums the `insured' is legally entitled to recover as damages from the owner or driver of an `uninsured motor vehicle.' The damages must result from `bodily injury' sustained by the `insured' caused by an `accident.' The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the `uninsured motor vehicle.'
Uninsured Motor Vehicle
To activate the policy, the 18-wheeler must meet the policy definition of an "uninsured motor vehicle." With regard to hit-and-run accidents, the endorsement defines "uninsured motor vehicle" as a motor vehicle where neither the driver nor the vehicle can be identified. The endorsement then requires that there be physical contact with the insured vehicle, or when there is no physical contact that the insured show by an independent and disinterested witness that the accident was caused by the actions of the unidentified driver. Physical Contact
Louisiana Uninsured Motorist Coverage endorsement included in insurance policy attached as Exhibit C to Defendant's Memorandum in Support of Motion for Summary Judgment at Paragraph F(3)(d):
"Uninsured motor vehicle" means a land motor vehicle or trailer: . . .
d. Which is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must either:
(1) Hit an "insured", a covered "auto" or a vehicle the "insured" is "occupying"; or
(2) Cause "bodily injury" to an "insured" without any actual physical contact with the "insured", a covered "auto" or a vehicle the "insured" is "occupying". However, in such cases, the insured must show, by an independent and disinterested witness, that the bodily injury resulted from the actions of an unidentified motorist.
In this case, there were no witnesses to the accident, so Plaintiff must prove physical contact. This physical contact need not be direct, but must result from an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence. Thus, to meet this requirement, the Plaintiff must prove that the object that struck his vehicle was part of the adverse vehicle or part of the load it was carrying. Debris in the roadway does not satisfy this requirement.
See Bruce v. Rogers Oil Tool Servs., Inc., 556 So.2d 922, 926 (La.App. 3 Cir. 1990).
Id.
Plaintiff has failed to provide summary judgment type evidence to show that the object that struck him was part of the 18-wheeler, or part of the load that it was carrying. Plaintiff relies on the recent Third Circuit case Rener v. State Farm Mutual Automobile Insurance Co., where the court found that the physical contact requirement had been met when a van hit a metal flap in the roadway causing it to skid into the guardrail.
2000 WL 349036.
Plaintiff's reliance on this case is misplaced. In Rener there was a witness to the origin of the metal flap. An unidentified witness spoke to the driver of the van immediately after the accident and related that he had seen the flap fall from a truck that had been traveling ahead of the van. The court admitted this hearsay evidence as an excited utterance.
Id. at **4.
Additionally, the Rener court cites Bruce stating that the physical contact "requirement would not be satisfied if the debris, which impacted the plaintiff's vehicle had just been in the Broadway, dropped at some other time." In the instant case there are no witnesses that saw the log fall from the unidentified truck, nor is there any evidence as to the origin of the log that struck Plaintiff. Plaintiff is unable to satisfy the physical contact requirement.
Id.
Plaintiff also cites Pinkney v. Progressive Specialty Insurance Co. in support of his position. In Pinkney, a motorcyclist was injured when he hit a log in the roadway. In that case the court found that the physical contact requirement was met even though there were no witnesses to the log actually falling from the unidentified truck.
597 So.2d 1168 (La.App. 1 Cir. 1992).
The trial court in Pinkney made factual findings based upon the location of the accident, the lack of pedestrian access to the area, the testimony of witnesses and the findings of the investigating officer. In this case, the court has no summary judgment evidence on which to make such findings.
Finally, Plaintiff cites Brock v. Aetna Casualty Surety Co. where a driver was injured after his vehicle was struck three times by a hit and run vehicle. After the third hit, the driver lost control of his vehicle and hit a concrete divider. The court in that case found the hit and run driver eighty percent at fault in the accident even though there were no witnesses to the accident. The factual scenario in plaintiff's opposition memorandum citing Brock is not analogous to the factual scenario in the case, therefore the court is unable to determine how Brock supports Plaintiff's claims.
580 So.2d 474 (La.App. 4 Cir. 1991).
Plaintiff has failed to produce summary judgment type evidence to indicate that the physical contact requirement can be satisfied. Therefore, there is no "hit," the 18-wheeler does not meet the policy definition of an "uninsured motor vehicle" and the policy is not activated.
Negligence of the unidentified driver
Even assuming that the Plaintiff could satisfy the physical contact requirement thereby activating the uninsured motorist endorsement, Plaintiff still would be unable to recover damages because he cannot prove that the 18-wheeler driver was at fault.
Under Louisiana law, for the driver to be negligent under these circumstances, the object in the roadway must be found to be plainly visible. Assuming that the truck rolled over the log and propelled it into plaintiff's vehicle, Plaintiff provides no evidence whatsoever as to how the log got onto the highway, how long it had been there, who caused the log to be on the highway, or whether a reasonable driver would have seen the log in time to avoid it. To find the unidentified truck driver negligent under these unknowns would be based on pure speculation and not based on evidence.
See Holliday v. Rudesill, 250 So.2d 233, 235 (La. App 1 Cir. 1971) (citing Jeansonne v. Louisiana Ready Mix Co., 164 So.2d 157, 158 (La.App. 1 Cir. 1964)).
The state trooper investigating the accident did not believe, based upon the condition of the log, that it had been rolled over by an 18-wheeler. See Deposition of Andrew S. Clark at pp. 17-21, attached to Defendant's Memorandum in Support of Motion for Summary Judgment as Exhibit B.
Defendant refers the court to Holliday v. Rudesill and Bordelori v. Hanover Insurance Co. where the court refused to presume that a pipe in Holliday, and a piece of plywood in Bordelon could have been seen and avoided by the uninsured motorist.
250 So.2d 233 (La.App. 1 Cir. 1971).
496 So.2d 607 (La.App. 1 Cir. 1986).
Again, plaintiff has failed to provide summary judgment type evidence to show that the object in the roadway could have been seen and avoided by the unidentified driver and that the driver was therefore negligent. To have the court assume that the truck rolled over the log, and to have the court further assume that the log was in the roadway for a sufficient time to be plainly visible and avoided by the truck driver is piling assumption upon assumption and is inappropriate. With this limited evidence, no reasonable jury could find that the Plaintiff has carried his burden of proving that the truck driver was at fault.
Accordingly;
IT IS ORDERED that Defendant's Motion for Summary Judgment be and is hereby GRANTED.