Barnes v. Nationwide Mutual Insurance

Opinion

SMITH, J.

While driving on a freeway in Oakland, California, Thelma Barnes collided with a box of dinette chairs that was lying in the road; she lost control of her car, smashed into the center guard rail and was injured. Ms. Barnes submitted a claim under the uninsured motorist provision of her Nationwide Mutual Insurance Company (Nationwide) policy, but Nationwide refused the claim. Ms. Barnes sued Nationwide, claiming that the box of dinette chairs that had caused her injuries had fallen from an unknown vehicle and that she was thus entitled to compensation under the uninsured motorist provision of her policy. Nationwide moved for summary judgment on the ground that there had been no “physical contact” between Ms. Barnes’s automobile and the unknown vehicle, as required by Ms. Barnes’s policy and by Insurance Code section 11580.2. The superior court granted summary judgment to Nationwide. This is Ms. Barnes’s appeal.

Introduction

As a prerequisite to recovery, both California’s uninsured motorist statute, Insurance Code section 11580.2, and Ms. Barnes’s policy require “physical contact” between the insured and the unknown vehicle. According to the definition of physical contact that has been developed by the courts, no physical contact occurred between Ms. Barnes’s car and the unknown vehicle; thus, Ms. Barnes did not state a cause of action and we affirm the

[543]

superior court’s decision. (See

Durbin

v.

Fletcher

(1985) 165 Cal.App.3d 334, 341 [211 Cal.Rptr. 483].)

Discussion

Our state Supreme Court considered the meaning of the physical contact requirement of the uninsured motorist statute in

Orpustan

v.

State Farm Mut. Auto. Ins. Co.

(1972) 7 Cal.3d 988, 992-994 [103 Cal.Rptr. 919, 500 P. 2d 1119], where an accident occurred when the plaintiff swerved his truck to avoid hitting a car that was never identified. No actual physical contact occurred between the plaintiff’s car and the unknown car, but plaintiff sued his insurance company when it did not pay his claim.