# Nationwide Insurance Company v. Mohamad Elchehimi, Individually and as Parent and Next Friend of Khaled Elchehimi and Lukman Elchehimi, Minors

> Texas Supreme Court · March 28, 2008

URL: https://www.frixlaw.com/law-library/cases/3008429

## Case

- **Court:** Texas Supreme Court
- **Decided:** March 28, 2008
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3008429

## How later opinions describe it (automated extraction)

- holding that insured rear-ending another car that was trying to avoid furniture dropped on the highway by an unknown driver was not actual physical contact with an unknown vehicle
- observing, but not holding, that Latham ’s rule “survives in the fact situation . . . where car A hits car B which then hits car C” in a case where an uninsured motorist hit an insured’s vehicle, causing the vehicle to collapse on the insured

## Opinion text

IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0106
════════════
Nationwide Insurance
Company, Petitioner,
v.
Mohamad Elchehimi,
Individually and as Parent and Next Friend of Khaled Elchehimi and Lukman
Elchehimi, Minors, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Tenth District of
Texas
════════════════════════════════════════════════════
Justice Wainwright
delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice
Brister, Justice Green, Justice Johnson , and Justice Willett .
Justice O’Neill filed a
dissenting opinion, joined by Justice
Medina .
This breach of contract suit stems from the denial of coverage by
Nationwide Insurance Company on a claim arising from a collision between insured
Mohamad Elchehimi’s vehicle and an axle-wheel assembly separated from an
unidentified semi-trailer truck. The court of appeals reversed the trial court’s
grant of summary judgment in favor of Nationwide. Because there was no actual
physical contact between Elchehimi’s vehicle and the unidentified truck as
required by statute to trigger the uninsured motorist coverage, we reverse the
court of appeals’ judgment.
On January 4, 2002, Mohamad Elchehimi’s station wagon collided with a
drive axle and attached tandem wheels that had separated from an eighteen-wheel
semi-trailer truck. The unidentified truck, which was being driven in the
opposite direction on a divided highway, did not stop. Momentum carried the
axle-wheel assembly across the dividing median where it struck Elchehimi’s
vehicle, injuring the occupants and damaging the car. Elchehimi had purchased
from Nationwide a standard Texas personal automobile insurance policy,
including the optional statutorily defined unidentified motorist coverage.
Nationwide denied Elchehimi’s claim for uninsured motorist benefits because the
impact between Elchehimi’s vehicle and the axle-wheel assembly was not “actual
physical contact” with an unknown “motor vehicle” as required by the terms of
the policy and the Texas Insurance Code.
Elchehimi sued Nationwide for breach of contract and breach of the duties
of good faith and fair dealing. Nationwide moved for summary judgment, arguing
that no actual physical contact occurred between Elchehimi’s vehicle and the
unidentified truck. The trial court granted the motion. A divided court of
appeals reversed, concluding that an issue of fact remained as to whether actual
physical contact occurred. 183 S.W.3d 833, 839 . Specifically, the court of
appeals interpreted the Texas uninsured/underinsured motorist statute, then
article 5.06-1(2)(d) of the Texas Insurance Code, [1] to require actual physical contact only
with an “integral part” of an unidentified motor vehicle as a “result of an
unbroken chain of events with a clearly definable beginning and ending,
occurring in a continuous sequence” rather than actual physical contact with a
motor vehicle. Id. at 838–39; see also Brooks v.
State Farm Mut. Auto. Ins. Co. , 2003-0389, p. 7 (La. App. 4 Cir. 9/24/03);
855 So. 2d 419, 424 (citing references omitted). Nationwide petitioned this
Court for review.
The parties do not dispute the facts of the collision and agree that the
following statutory provision, which provides the parameters of coverage for
damage or injury caused by unidentified motorists in Texas, governs this
dispute:
class=Section2>
[F]or the
insured to recover under the uninsured motorist coverage if the owner or
operator of any motor vehicle that causes bodily injury or property damage to
the insured is unknown, actual physical contact must have occurred
between the motor vehicle owned or operated by the unknown person and the person
or property of the insured.
class=Section3>
Tex. Ins. Code § 1952.104(3) (emphasis
added). The relevant policy language is consistent with the statute. To survive
summary judgment, Elchehimi must raise a fact issue that his vehicle’s collision
with the axle-wheel assembly qualified as “actual physical contact” with a
“motor vehicle” or a legally recognized substitute for such contact.
Because there was actual physical contact between Elchehimi’s vehicle and
the axle-wheel assembly, we examine whether the assembly is a motor vehicle
under the Texas Insurance Code. Section 1952.104(3) does not define motor
vehicle. However, the common usage of the term motor vehicle does not include a
single axle attached to two wheels. See Slaughter v. Abilene State
Sch. , 561 S.W.2d 789 , 791–92 (Tex. 1977). “Common usage has made the phrase
‘motor vehicle’ a generic term for all classes of self-propelled vehicles not
operating on stationary rails or tracks.” Id. at 792 . In addition, other relevant
statutory definitions aid our analysis. The Texas Insurance Code expressly
incorporates the Texas Motor Vehicle Safety-Responsibility Act, chapter 601 of
the Transportation Code. Tex. Ins. Code
§ 1952.101(a). Chapter 601 sets minimum coverage amounts for vehicle
liability insurance, and those amounts explicitly apply to uninsured motorist
coverage. Tex. Transp. Code §
601.072. Because Section 1952.104(3) and Chapter 601 address the same subject
matter—motor vehicle insurance—the definition of motor vehicle in section
601.002 of the Transportation Code is persuasive, if not controlling. Chapter
601 defines a motor vehicle as “a self-propelled vehicle designed for use on a
highway, a trailer or semitrailer designed for use with a self-propelled
vehicle, or a vehicle propelled by electric power from overhead wires and not
operated on rails.” Tex. Transp. Code
§ 601.002(5).
A drive axle with two tandem wheels attached on one side lacks an engine
or other means of propulsion. It is therefore neither a self-propelled vehicle
nor a vehicle propelled by electric power from overhead wires. This wheel
assemblage is not capable of carrying a load, nor can it be towed down a road by
a self-propelled vehicle other than being dragged by or mounted underneath one,
as Elchehimi’s expert witness testified. The axle-wheel assembly is thus not a
trailer or semitrailer designed for use with a self-propelled vehicle. The
axle-wheel assembly is not a motor vehicle under Chapter 601. Applying the
common usage of the term and the definition in Chapter 601, we conclude that
physical contact with a detached axle and tandem wheels is not actual physical
contact with a motor vehicle under the unidentified motor vehicle provision.
Elchehimi also argues that this collision involved a legally recognized
substitute for the statute’s actual physical contact requirement. In Latham
v. Mountain States Mutual Casualty Co. , the court of appeals determined that
the physical contact requirement could be satisfied through indirect contact
where an unidentified vehicle first impacts an intermediary vehicle that in turn
collides with an insured claimant. 482 S.W.2d 655, 657 (Tex. Civ. App.—Houston
[1st Dist.] 1972, writ ref’d n.r.e.). The court of appeals held that “[w]here a
Car A strikes Car B and propels it into Car C, there is physical contact between
Car A and Car C” within the meaning of an automobile insurance policy that
required physical contact with an unidentified vehicle. Id.
No Texas court, however, has ever relied on
Latham to conclude that physical contact occurred where there was no “Car
B.” Cf.
Old Am. County Mut. Fire Ins. Co. v.
Sanchez , 81 S.W.3d 452, 462 (Tex. App.—Austin 2002) (observing, but not
holding, that Latham ’s rule “survives in the fact situation . . . where
car A hits car B which then hits car C” in a case where an uninsured motorist
hit an insured’s vehicle, causing the vehicle to collapse on the insured),
rev’d on other grounds , 149 S.W.3d 111 (Tex. 2004). Only two motor
vehicles were involved in Elchehimi’s collision: the unidentified truck and
Elchehimi’s station wagon. Because the axle-wheel assembly is not a motor
vehicle, it cannot fill the role of an intermediary vehicle to provide indirect
contact between the unidentified truck and Elchehimi’s vehicle. Latham is
further distinguishable because the court in Latham was interpreting
insurance policy language, not a statute, and the policy language did not have
an actual physical contact requirement. Latham , 482 S.W.2d at 657 . Five
years after Latham , the Legislature added the actual physical contact
requirement to the uninsured motorist statute. See Act of May 6, 1977,
65th Leg., R.S., ch. 182, § 1, art. 5.06-1(2)(d), 1977 Tex. Gen. Laws 370 , 371
(repealed 2005).
No other substitute exists for the requirement of actual physical contact
with the motor vehicle itself. Texas courts have uniformly rejected the
contention that a collision with cargo and other objects falling from a car
satisfies the requirement of actual physical contact with a motor vehicle.
See, e.g. , Tex. Farmers Ins. Co. v. Deville , 988 S.W.2d 331 ,
333–34 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding that water pump
falling from truck and striking insured was not actual physical contact with a
motor vehicle); Republic Ins. Co. v. Stoker , 867 S.W.2d 74 , 77–78 (Tex.
App.—El Paso 1993) (holding that insured rear-ending another car that was trying
to avoid furniture dropped on the highway by an unknown driver was not actual
physical contact with an unknown vehicle), rev’d on other grounds , 903
S.W.2d 338 (Tex. 1995); Williams v. Allstate Ins. Co , 849 S.W.2d 859, 861
(Tex. App.—Beaumont 1993, no writ) (holding that collision between the
claimant’s vehicle and a steel pipe dropped from an exiting truck was not actual
physical contact with a motor vehicle). Another court of appeals considering the
issue of contact with parts of the vehicle itself, rather than simply cargo, has
concluded that such contact is also not enough to satisfy this strict
requirement. See Smith v. Nationwide Mut. Ins. Co. , No. 04-02-00646-CV,
2003 WL 21391534 , 2003 Tex. App. LEXIS 5056 , at *6–8 (Tex. App.—San Antonio June
18, 2003, pet. denied) (holding that collision between loading ramp that
detached from trailer and insured’s vehicle was not actual physical contact with
a motor vehicle). We agree that a collision with a separated piece of a motor
vehicle, such as an axle-wheel assembly, is not actual physical contact with the
motor vehicle as specifically required by the statute.
The dissent argues we should follow the court of appeals’ suggestion that
Texas adopt an integral part test to determine whether actual physical contact
occurred. 183 S.W.3d at 835 . We decline, however, to adopt an integral part test
not present in the text of the statute and inconsistent with the relatively
bright line established by the Legislature. Moreover, such a test would be
practically unmanageable, requiring a case-by-case analysis to determine if a
part was substantial enough to serve as a proxy for a motor vehicle. This would
lead to a line-drawing conundrum for courts of appeals. The Legislature did not
create an exception to the statute’s requirement of actual physical contact with
a motor vehicle, and we decline to do so.
In search of support for such an integral part test, the dissent and the
court of appeals look to other state jurisdictions and the interpretation of
those states’ unidentified motorist statutes. Although interesting, we do not
believe this analysis is necessary because the language of the Texas statute is
not ambiguous. See Tex. Dep’t of Protective & Reg. Servs. v. Mega Child
Care, Inc. , 145 S.W.3d 170, 177 (Tex. 2004) (“If the statutory text is
unambiguous, a court must adopt the interpretation supported by the statute’s
plain language unless that interpretation would lead to absurd results.”) In
addition, the dissent’s citations show there is no trend from which to glean a
majority rule. Of the seven states the dissent identifies as having physical
contact requirements in their unidentified motorist statutes and as having
considered the integral part test, two have statutory language different than
Texas, [2] four have adopted the test, [3] and one has rejected it. [4] Of the four states with cases adopting
the integral part test, three have done so only at the intermediate appellate
court level. At best, there is guidance from the highest courts of two states,
New York and South Carolina, and they reach opposite conclusions on the
issue.
The dissent agrees that the Texas uninsured motorist statute should be
liberally construed to protect insureds “who are legally entitled to recover
damages from owners or operators of uninsured or underinsured motor vehicles.”
Stracener v. United Serv. Auto. Ass’n , 777 S.W.2d 378, 382 (Tex. 1989).
Liberally construing a provision, however, does not permit divorcing its
application from the words in the statute. The dissent states that our
construction “does nothing to further the anti-fraud purpose behind the
requirement of ‘physical contact’ with a ‘motor vehicle.’” To the contrary,
creation of an integral part test would force courts to draw lines in each case
along a continuum, to determine whether a particular part was large or important
enough to be “integral,” whether the part was a piece of the vehicle or merely
cargo, and whether the part was contemporaneously separated from the vehicle or
had lain in the roadway long enough to become debris. All of these questions
would open the door to uncertainty and potential fraudulent or fictitious
claims, which the Legislature saw fit not to do. See Davis , 331 S.E.2d at
354 (“The requirement of physical contact with the unknown vehicle, and not just
with an unattached part thereof, is a viable manner of preventing fraudulent,
fictitious claims.”). The Legislature drew a relatively bright line, and we
decline to fuzz it up. Requiring contact with the motor vehicle honors the
language enacted by the Legislature and enforces the legislative purposes of
protecting insured motorists and preventing fraud.
The language of the statute compels our conclusion. The salient factor
here is that the insured’s vehicle did not make actual physical contact with the
unidentified vehicle. Whether the item that did make contact with the insured’s
vehicle was initially a piece of the unidentified vehicle or was cargo that had
fallen off is irrelevant—in either case the item is not a motor vehicle. For
these reasons, and without hearing argument, we reverse the judgment of the
court of appeals, render judgment for Nationwide, and order that Elchehimi take
nothing. Tex. R. App. P .
59.1.
________________________________________
J. Dale Wainwright
Justice
OPINION
DELIVERED: March 28, 2008
[1]
In 2005, the Legislature repealed Article 5.06-1(2)(d) as part of the
codification of the Texas Insurance Code. The same language now appears in
section 1952.104(3) of the Texas Insurance Code. Accordingly, the Court will
retroactively apply Section 1952.104(3). See Subaru of Am., Inc. v. David
McDavid Nissan, Inc. , 84 S.W.3d 212 , 219–20 (Tex. 2002) (retroactive
application is constitutional where the change is remedial and procedural and
does not affect a vested right).
[2]
See La. Rev. Stat. Ann. §
22:680(1)(d)(i) (LEXIS through 2007 Sess.) (allowing testimony by a
disinterested witness in place of actual physical contact); Wis. Stat. Ann. §§ 632.32(2)(a),
.32(4)(a)(2)(b) (LEXIS through 2007 Sess.) (covering “hit-and-run” accidents
with unidentified vehicles).
[3]
See State Farm Fire & Cas. Co. v. Guest , 417 S.E.2d 419, 422 (Ga. Ct.
App. 1992); Illinois Nat. Ins. Co. v. Palmer , 452 N.E.2d 707, 709 (Ill.
App. Ct. 1983); Adams v. Mr. Zajac , 313 N.W.2d 347, 349 (Mich. Ct. App.
1981); Allstate Ins. Co. v. Killakey , 580 N.E.2d 399, 401 (N.Y.
1991).
[4]
See Davis v. Doe , 331 S.E.2d 352 , 353–54 (S.C.
1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3008429. Public record. Not legal advice.