Earlier this week, Pedro Garcia, a state worker who had stopped on the roadway to pick up trash, was killed when he was hit by two loose tires that had come off of a passing tractor trailer. This may seem like a strange fact pattern for an injury, but it’s not.
Earlier this month, a police offier in Texas was almost hit by another loose tire from a tractor trailer. The tire, going approximately sixty miles per hour, just missed the officer. At that speed, I can only imagine the injuries the officer would have sustained. You can watch amazing home video of the incident below.
And though I can’t find a link to a story, two summers ago, an Austin woman was killed on I-35 when a stray tire from a tractor trailer crossed the median and slammed into her car.
These wrecks raise interesting questions when you stop and ask who is responsible. Obviously, if you can track the offender down, then you may have a claim against the owner and operator of the vehicle and the company charged with maintaining the vehicle. But many times, tires come loose, truck drivers never know it, and they simply continue on down the road, and the victim can’t identify the responsible party.
That’s when things get interesting. It makes sense that a victim could make an uninsured motorist claim against their automobile insurance carrier. But that’s not the case.
The uninsured motorist statute and 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 numerous uninsured motorist claims based on one-car wrecks whose drivers suddenly claimed that their wrecks were caused when phantom cars ran them off the road. 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 has rejected those claims. In the March 28, 2008 opinion of Nationwide Insurance Company v Elchehimi the court was faced with 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 the claimants 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.
To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit https://www.civtrial.com/.
YOU MAY ALSO LIKE
20 Years OF TRUST
For 20 years, our personal injury clients have trusted us to help get them the benefits they deserve.