McNeil v. Hartford Accident & Indemnity Co.

352 S.E.2d 915 (1987)

William A. McNEIL
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 8610SC821.

Court of Appeals of North Carolina.

February 17, 1987.

Thigpen, Blue, Stephens & Fellers by Carlton E. Fellers, Raleigh, for plaintiff-appellant.

Leboeuf, Lamb, Leiby & Macrae by R. Bradley Miller, Raleigh, for defendant-appellee.

WELLS, Judge.

Plaintiff contends that the court erred in granting defendant's motion for summary judgment. We agree.

In order to show that he is entitled to the benefits under the uninsured motorist endorsement, plaintiff must show that: (1) he is legally entitled to recover damages, (2) from the owner or operator of an uninsured automobile, (3) because of bodily injury, (4) caused by accident and (5) arising out of the ownership, maintenance or use of the uninsured automobile. Williams v. Insurance Co., 269 N.C. 235, 152 S.E.2d 102 (1967).

N.C.Gen.Stat. § 20-279.21(b)(3)(b) provides:

Where the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as a result of collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, the insured may institute an action directly against the insurer....

Our courts have interpreted this statute to require physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver for the uninsured motorist provisions of the statute to apply. Hendricks v. Guaranty Co., 5 N.C.App. 181, 167 S.E.2d 876, cert. denied, 275 N.C. 594 (1969). See also East v. Insurance Co., 18 N.C.App. 452, 197 S.E.2d 225 (1973). The physical contact requirement protects against fraudulent or fabricated hit-and-run claims by plaintiffs seeking to collect insurance from an accident actually caused by their own negligence. 7 Am.Jur.2d, Automobile Insurance § 300.

The dispositive question for this appeal is whether the physical contact requirement is satisfied where the physical contact arises between the hit-and-run vehicle and plaintiff's vehicle through intermediate vehicles involved in an unbroken "chain collision" which involves the hit-and-run vehicle.

We hold that, if plaintiff can show at trial that a collision occurred between the hit-and-run vehicle and Ms. Carelli's vehicle and that this collision propelled Ms. Carelli's vehicle into Mr. Mumford's vehicle, and that this second collision propelled Mr. Mumford's vehicle into plaintiff's vehicle, then under these circumstances, the physical contact requirement has been satisfied, albeit intermediate and indirect.

Defendant presented evidence through the deposition of Ms. Carelli suggesting that Mr. Mumford's vehicle collided with plaintiff's before the hit-and-run vehicle collided with Ms. Carelli's. At trial, plaintiff will have the burden of proving that his damages were indirectly caused by the hit-and-run vehicle's collision with Ms. Carelli's car and were not the result of an earlier collision between Mr. Mumford's vehicle and plaintiff's vehicle prior to the arrival of the hit-and-run vehicle. For now, however, the pleadings and discovery materials create a genuine issue of material fact as to whether the hit-and-run vehicle caused plaintiff's alleged damages in an unbroken "chain collision."

Accordingly, we hold that the trial court erred in granting defendant's N.C.Gen. Stat. § 1A-1, Rule 56 motion for summary judgment.

Reversed and remanded.

MARTIN and PARKER, JJ., concur.