Southern Farm Bureau Cas. Ins. Co. v. Brewer, 56622

• Decision Date: 13 May 1987
• Docket Number: No. 56622,56622
• Citation: 507 So.2d 369
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE CO. v. Jessie M. BREWER.
• Court: Mississippi Supreme Court

Page 369

507 So.2d 369

SOUTHERN FARM BUREAU CASUALTY INSURANCE CO. v. Jessie M. BREWER.

No. 56622.

Supreme Court of Mississippi.

May 13, 1987.

Dorrance Aultman, H. Alex Brinkley, Aultman, Tyner, McNeese & Ruffin, Hattiesburg, for appellant.

G. Gerald Cruthird, Colette A. Oldmixon, Smith, Smith, Tate, Stuart & Cruthird, Picayune, for appellee.

Before HAWKINS, P.J., and PRATHER and GRIFFIN, JJ.

PRATHER, Justice, for the Court:

This case questions whether an insured is entitled to recover for injury under uninsured motorist coverage when a passing unknown vehicle propels an object through the windshield of the car occupied by the insured.

The Circuit Court of Pearl River County granted summary judgment to Jessie M. (Blackwell) Brewer, plaintiff, finding that Brewer was entitled to $10,000 uninsured motorist coverage, from Southern Farm Bureau Casualty Insurance Company, defendant, and that the contact which occurred between the insured vehicle and the uninsured motorist constituted "physical contact" as contemplated by the statute and the insurance policy. This Court affirms.

I.

The stipulated facts are that an insurance policy, issued by Southern Farm Bureau to Brewer's husband, Stephen A. Blackwell, provided $10,000 per person for uninsured motorist coverage. On August 25, 1982, Jessie M. Brewer was riding as a named insured passenger in an automobile covered under the policy. A pickup truck operated by an individual whose identity could not be ascertained pulled along side of the automobile in which Brewer was riding. The truck suddenly, without warning, cut in front of Blackwell's car. In doing so the truck struck an object later identified as a brake drum lying in the lane of traffic and propelled it into Blackwell's car. The brake drum broke the windshield of the automobile in which Brewer was riding and struck Brewer in the face. The negligence of the operator of the hit-and-run automobile was stipulated as being the sole and only proximate cause of the accident.

II.

When faced with a motion for summary judgment under MRC.6, the trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Brown v. Credit Center Inc., 444 So.2d 358, 362 (Miss.1983). See also Vickers v. First Mississippi National Bank, 458 So.2d 1055, 1060 (Miss.1984); Dennis v. Searle, 457 So.2d 941 (Miss.1984).

The only issue the lower court had to consider was whether or not the "physical contact" requirement, which was contained in the subject policy, and is also required in Sec. 83-11-103(c)(v) of the Miss.Code, was sufficiently met.

The uninsured motorist provision covering the automobile at the time of the accident stated as follows:

The term "uninsured motor vehicle" means:

(3) A hit and run vehicle as defined under II(d);

II(d): The term "hit-and-run automobile" means an automobile which causes bodily injury and/or property damage to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident....

In Miss.Code Ann. Sec. 83-11-103(c)(v) it is stated:

The term "uninsured motor vehicle" shall mean:

(v) A motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.

Appellants contend that no actual physical contact occurred between the automobile in which Brewer was riding and the hit-and-run vehicle; therefore, the insurance policy did not apply to, nor cover, the loss which occurred.

Only two cases in Mississippi present scenarios similar to the facts of the case at bar. In Aetna Casualty & Surety Co. v. Head, 240 So.2d 280 (Miss.1970), the plaintiff was injured when a bottle thrown by the occupant of an unknown vehicle, struck the insured's automobile injuring the insured. In that case this Court held that the "actual physical contact" requirement in the policy's uninsured motorist clause was not satisfied. In 1970, there was no Mississippi case construing the uninsured motorist clause, so the Court relied on George v. Mississippi Farm Bureau Mutual Ins. Co., 250 Miss. 847, 168 So.2d 530 (1964) to construe a definition of physical contact. In George, a bulldozer pushed loose material into a cut in front of a building. The weight of the loose material caused the building to fall. This Court held that the provision allowing recovery only in the event of "actual physical contact" required an actual contact-touching of the building by the vehicle before there could be recovery under the clause of the contract, and denied recovery. In contrast to Head, the policy language in the case at bar refers to the mere "physical contact" of a hit-and-run automobile.

In another case State Farm Mutual Automobile Insurance Co. v. Johnson, 242 Miss. 38, 133 So.2d 288 (1961), this Court ruled that a widow would be entitled to recover funeral expenses under the medical payment clause.

Johnson was driving his automobile across a bridge when the right wheel of the car dropped over the right side. Johnson enlisted the help of a gentleman and together they placed a plank beneath the car. Johnson stood behind the car as the other man drove it forward; the plank propelled into Johnson's body, proximately causing his injury and death. Although this case involved no hit-and-run vehicle and was written prior to the passage of the uninsured motorist act, it appears that the court accepted the propelling of an object by a vehicle into the insured as a compensable injury.

Since 1970 this Court has ruled that the uninsured motorist (UM) act is to "provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers." Rampy v. State Farm Mutual Automobile...