Bruno v. Blankenship

OPINION CANTRELL, Judge. The question on this appeal is whether an insurer may be liable under the uninsured motorist coverage of its policy where the insured is injured while attempting to avoid an obstruction of unexplained origin in the road. The trial judge granted summary judgment to the insurer. We affirm. I. While traveling down Interstate 65 on a November evening in 1989, the plaintiff, Donald P. Bruno, suddenly came upon a ladder lying across his lane of traffic. He swerved to avoid the obstruction and lost control of his automobile, suffering extensive injuries in the collision with a parked truck and with the highway guard rail. At the point of the accident, the highway has three southbound lanes. The ladder lay diagonally across most of the center and left lanes. The right lane was clear. The nearest point where another structure crosses over the interstate highway is two-tenths of a mile away. Access to the highway is restricted by fences, a concrete retaining wall, and a guard rail. Other eye witnesses testified that the ladder was actually present on the road. Mr. Bruno sued his insurance carrier, after they denied his claim, under the uninsured motorist coverage in his policy. On motion for summary judgment the Circuit Court of Davidson County dismissed the claim. II. The sole question is whether there are any facts from which a trier of fact could reasonably infer that the accident was covered by the uninsured motorist statute, Tenn.Code Ann. § 56-7-1201. As amended in 1989, the act provides: (e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless: (1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or (B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle. As the statute shows, an insured may recover from his insurance carrier in two situations involving unknown owners or operators of motor vehicles: (1) if the injury is caused by actual physical contact with the vehicle of the unknown owner or driver; or (2) if the insured can prove by clear and convincing evidence, supplied by someone other than an occupant of the insured’s vehicle, that his injuries were caused by an unknown motorist. Paragraph (e)(1)(B) was added in 1989 to allow recovery where there had been no physical contact between the two vehicles but the negligence of the unknown motorist nevertheless caused the accident. Under paragraph (e)(1)(A), the courts have held that the physical contact does not have to be direct. If a passing truck kicks up a rock that hits the insured’s windshield, there is physical contact between the two vehicles because the physical force of one vehicle is transmitted to the other through the intermediary. Barfield v. Insurance Co. of North America, 59 Tenn.App. 631, 640-41, 443 S.W.2d 482, 486 (1968). Also, where an unidentified vehicle strikes another causing it to collide with the insured’s vehicle, there is physical contact between the first vehicle and the insured vehicle. Hoyle v. Carroll, 646 S.W.2d 161, 163 (Tenn.1983). As the facts show, this accident does not come within paragraph (e)(1)(A). The ladder was not propelled into the plain [296] tiffs vehicle by the force of the unknown vehicle. By all accounts the ladder had come to rest on the highway sometime before the plaintiff came along. The question then is whether the accident can be traced to an unknown motorist. There is nothing in the record that would justify that conclusion, although the circumstances showing the character of the highway and the limited access to it make this a close case. The ladder may have fallen off a vehicle or it may have been placed on the highway as a prank. It may have been deliberately thrown from a vehicle by a passenger; i.e. someone other than the motorist. Therefore, we are of the opinion that to say the ladder was on the highway as a result of the negligence of a motorist would be pure speculation. The judgment of the court below is affirmed and the cause is remanded to the Circuit Court of Davidson County for any further proceedings necessary. Tax the costs on appeal to the appellant. LEWIS, J., concurs. TODD, P.J., dissents with opinion.