St. Paul Insurance Co. v. Gallup , 1974 Tex. App. LEXIS 2042 ( 1974 )

DUNAGAN, Justice.

This is an appeal by St. Paul Insurance Company, defendant below, from an adverse judgment against it in the trial court.

Clifford A. Gallup, appellee and plaintiff in court below, brought this suit upon a standard family automobile insurance policy issued to him by appellant, seeking to recover sums he expended for medical expenses incurred by his son, Keith Gallup, in the aftermath of a collision between the latter’s motorcycle and automobile occupied by Judy Langston in the City of Palestine, Texas, on May 16, 1972. At the outset we point out that this is not a negligence case.

Trial was to the court without a jury, and resulted in judgment for appellee in the amount of $5,000.00 plus 12% penalty, attorney’s fees in the amount of $2,000.00 and costs of suit.

Appellant in its first three points of error contends that the trial court erred because the evidence establishes, as a matter of law, that Keith Gallup was not “struck by an automobile.” The appellant also contends that the term “struck by an automobile” within the meaning of a medical payment coverage of a standard car insurance policy means that the automobile must be a “causative force” or a “contributing factor” in the collision and that because the Langston car was stopped and had taken no previous action which caused or contributed to the collision, the appellant could not be liable under Coverage “C” of the insurance contract.

The appellee in his first three counterpoints argues the opposite of appellant’s contentions. He argues that only when a car is parked and passive can the term “struck by an automobile” be used to negate the insurance company’s liability.

Appellant’s points of error four and five are “sufficiency of the evidence, so as to be against the great weight and preponderance” points on the implied findings of being “struck by an automobile.”

Briefly the pertinent facts, which are either undisputed or stipulated are:

1. The policy of insurance sued upon is a Texas standard family automobile insurance policy with the usual, administratively promulgated coverage.

The appellee’s claim was made under “Coverage C — Medical Payments” which promised:

“To pay all reasonable expenses incurred within one year from the date of the accident for necessary, surgical, X-ray and dental and services including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:

“ * * * To or for the named insured and each relative who sustains bodily injury, . . . caused by accident, . . . (C) through being struck by an automobile or by a trailer or any type; * * * ”

There is no dispute that appellee’s policy was in full force and effect at all material times and it was so stipulated by the parties.

As the pleadings and stipulations make clear, the central question on appeal is whether or not Keith Gallup was “struck by an automobile” within the meaning of “Coverage C” of the medical policy quoted above. We believe he was not.

2. Sometime around noon on May 16, 1972, Keith Gallup mounted his “100 cc Honda” motorbike and left the grounds of Palestine High School, which he attended, proceeding toward his grandparents’ home, where it was his custom to eat lunch.

The route followed by Keith took him south down Crockett Road, also known as Highway No. 287.

Keith had retrograde amnesia concerning the events of the accident itself. Though Keith could remember nothing of the accident "other than leaving the school grounds,” it appears that, during the course of his travel south on Highway No. 287, he drove his motorbike into the rear of an automobile, occupied by Mrs. Judy Langston, which was fully stopped in the south bound lane of said highway preparatory to making a lawful left hand turn. She was waiting for traffic to clear from the opposite direction and had her left turn lights on for the purpose of turning left.

At the point of collision, Highway 287 is four-laned, two lanes for north bound traffic and two lanes for south bound traffic. The Langston automobile was in the proper lane to make a left turn (i. e., the inside lane next to the center stripe). There is no evidence that, prior to stopping her automobile for the turn, Mrs. Langston did or failed to do anything in the operation of her automobile which made the automobile a cause or a contributing factor to the accident in any degree. Her automobile was simply a passive obstacle with which the insured collided for unexplained reasons.

Even though it has been established in Texas that actual physical contact is not a prerequisite to a holding that an insured has been “struck by” an automobile, Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430 (1961), it has also been held by the Texas Supreme Court that the vehicle causing the injury must be a causative force in the collision as opposed to being parked and passive, before it can be said to have struck the insured person. Houston Fire & Casualty Insurance Co. v. Kahn, 359 S.W.2d 892 (Tex.Sup.1962). In the Kahn case the Supreme Court was called on to give the proper construction of the medical coverage clause of an insurance policy which provided for medical expenses resulting from bodily injury “caused by accident . . . through being struck by an automobile.”

In this State the equivocal nature of the rule that actual physical contact is not a prerequisite to a holding that an insured has been “struck by” an automobile appears to arise from the requirement that the offending vehicle must be in motion or must be a causative force. Our Supreme Court, while not rejecting the rule that physical contact is unnecessary, distinguished situations involving parked and passive vehicles, the movement and propulsion of which was not a factor in the collision from those situations involving collisions with automobiles which had stopped for some reason or other and were merely stationary at the moment of impact. Houston Fire & Casualty Insurance Co. v. Kahn, supra; 33 A.L.R.3d 966, 969. Nevertheless, the Supreme Court in the Kahn case held that an insured may be determined “struck” by an automobile for the purposes of medical payment coverage even though no physical contact occurs, so long as the offending automobile is a “causative force” in the collision. Therefore, the medical coverage clause of the policy under review, requires that the automobile causing the injury must have been a causative force in the collision before it can be said to have struck the insured. Houston Fire & Casualty Insurance Co. v. Kahn, supra, and 33 A.L.R.3rd 966, 969.

Therefore, under the rule of law enunciated in the Kahn case, the medical coverage clause of the policy under review requires that the automobile causing the injury must have been a “causative force” in the collision before it can be said to have struck the insured. The causation does not result when the car was parked and passive, as in the Kahn case, or as in our present situation where the automobile is in a stationary position temporarily and passive.

It is shown by the undisputed evidence in this case that the Langston automobile was not in motion at the time of the impact; it did not strike the insured but was struck by him instead; and no movement or action by the Langston automobile was a contributing factor to the collision. Rather, as was the situation in the Kahn case, the Langston automobile was lawfully positioned, completely passive and the movement and propulsion was not a factor in the collision. The Kahn case, in our opinion, is controlling.

As this court stated in James v. Vernon Calhoun Packing Company, 486 S.W.2d 396 (1972) and affirmed Tex., 498 S.W.2d 160, it is the constitutional duty of the court of civil appeals to follow the law as announced by the Supreme Court where the identical question has been decided.

In view of our disposition of this case on appellant’s first three points of error, we do not reach nor discuss its points four and five relating to the insufficiency of the evidence to support the trial court’s implied finding that Keith Gallup was “struck by an automobile” within the meaning of Coverage “C” of the medical policy. However, if these points should be reached, we would hold that the evidence is insufficient to support such finding.

In view of the legal principles enunciated in the Kahn case on the identical question before this court, we are compelled to the conclusion that the accident in question was not within the provision of “Coverage C” and the judgment of the trial court must be reversed.

Accordingly the judgment of the trial court is reversed and rendered for the appellant.