Court’s Denial of UM Coverage for Vehicle Shooting Highlights Hit-And-Run “Physical Contact” Requirement

The Fifth Circuit recently held that uninsured/underinsured motorist (UM/UIM) coverage was not available for a ride-sharing driver’s loss, since she failed to create a fact issue on whether she was hit by a hit-and-run vehicle that chased and shot at her. The ruling reaffirms Texas law on what meets the “physical contact” requirement for UM/UIM hit-and-run coverage.

The insured was working for a ride-sharing company when she picked up a passenger. As she drove away from the pickup location, an unidentified “John Doe” driver in another vehicle began shooting at the insured’s vehicle. The insured made it to the passenger’s drop-off location, but the John Doe vehicle reappeared and began shooting again, with at least one bullet hitting the insured’s rear tire. The insured drove off with the passenger still in tow. About two miles from the last time she saw the John Doe vehicle, she hit an “island or sidewalk before crashing into a wall.” The insured did not recall the John Doe vehicle hitting her vehicle, with the only contact from the John Doe vehicle being the gunfire several miles earlier.

The insured filed suit against the ride-sharing company’s insurer, seeking coverage for the accident under the company’s UM/UIM coverage. As relevant here, the UM/UIM coverage required the accident to arise out of “the ownership, maintenance, or use of the uninsured motor vehicle.” The policy further defined an “uninsured motor vehicle” to include “a land or motor vehicle…of any type...which is a hit-and-run vehicle whose operator or owner cannot be identified.” It specified that for hit-and-run vehicles, the “vehicle must hit an insured, a covered auto or a vehicle an insured is occupying.”

At the district court level, the court granted summary judgment to the UM/UIM carrier, finding there was no coverage for the accident for two reasons:

• • Relying on long-standing Texas law, the court held that to the extent the only contact between the insured vehicle and the John Doe vehicle was from the shooting, a shooting did not constitute “use” of a vehicle as required by the UM/UIM insuring agreement.
  • The court held that there was no evidence of physical contact between the insured vehicle and the John Doe vehicle, which is a necessary predicate for coverage when the UM/UIM vehicle is a hit-and-run vehicle. The court also noted that neither the bullet from the John Doe vehicle nor the John Doe vehicle swerving toward (but not hitting) her vehicle satisfied the physical contact requirement.

The insured appealed to the Fifth Circuit, where she narrowed her argument to one key point: that the district court had erred in holding there was no fact issue on the lack of physical contact between the vehicles because:

• • A photo of the insured vehicle showed a dent on the back of her vehicle.
  • The insured testified that it was possible that this dent was from the John Doe vehicle.

The Fifth Circuit disagreed, holding that the photo had not been cited as summary judgment evidence at the district court level. Even if it were, the court stated, the insured’s deposition statement that it was possible that the John Doe vehicle hit her vehicle was not enough to survive summary judgment, in light of her failure to mention a collision in her complaint and her consistent deposition testimony that she could not recall any contact between the vehicles.

This case further reaffirms long-standing rules for UM/UIM coverage in the hit-and-run context. First, intentional acts such as shooting will not satisfy the “use” requirement found in many UM/UIM insuring agreements. Second, physical contact must be proven when the UM/UIM vehicle is a hit-and-run vehicle. It is not sufficient for the insured to assert that there may have been physical contact, and contact from a bullet (or the other vehicle swerving toward/chasing the insured vehicle) will not satisfy the physical contact requirement.

Please contact Sara Nau, Joshua McGraw or any member of Phelps’ Insurance team if you have questions or need advice and guidance.