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Esmond v. Bituminous Casualty Corporation5/31/2000
Appeal From: Circuit Court of Morgan County, Hon. James Anderson Franklin, Jr.
Opinion Vote: AFFIRMED. Ulrich and Smart, Jr., JJ., concur.
Opinion:
Plaintiff-Appellant Robert Esmond appeals the decision of the trial court dismissing his claim that he was entitled to recover uninsured motorist benefits under his employer's insurance policy with Defendant-Respondent Bituminous Casualty Corp. because he was injured as a result of an accident caused by an uninsured motorist while hauling compressors in the scope and course of his employer's business. We find that the court did not err in dismissing Mr. Esmond's claim in that his injuries were caused by his decision to lift the compressors after the accident was over, not by the use of the uninsured vehicle, and the negligence of the uninsured motorist was merely a remote condition for Mr. Esmond's injuries, not their proximate cause. Affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts as alleged in the Petition, and all favorable inferences from them, show as follows:
On November 20, 1996, Mr. Esmond was en route from New York to Missouri in a pick-up with an attached trailer in which he was hauling a load of used air brake compressors. Both truck and trailer were owned by his Missouri employer, Air Brake Specialties, and insured through Bituminous Casualty Corporation for $50,000.00 in uninsured motorist coverage. A car Mr. Esmond was following suddenly and unexpectedly applied its brakes. Mr. Esmond was able to avoid hitting the unidentified motorist only by swerving onto the shoulder of the road and stopping. It is undisputed that Mr. Esmond was not injured in taking the evasive action to avoid a collision with the unidentified motorist, and there is no allegation of injury to the vehicle. The unidentified motorist did not stop after the incident and has not since been identified.
After the incident, Mr. Esmond suspected that his action of swerving off of the road to avoid the collision may have caused the load of compressors he was hauling to shift, so he exited the truck to inspect the compressors. Finding they had shifted, he decided to try to lift and reposition them himself. While lifting the compressors, Mr. Esmond herniated several discs in his spinal cord. This injury resulted in partial paralysis and loss of bowel and bladder control. Mr. Esmond incurred over $70,000 in medical bills for the treatment of these conditions.
Mr. Esmond filed a claim for uninsured motorist benefits under his employer's insurance policy with Bituminous. Mr. Esmond claimed that his injuries were caused by the negligence of the phantom driver and were, therefore, covered under the uninsured motorist provisions of the Bituminous policies. The Bituminous policies provided that:
[Bituminous] will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle." The damages must result from "bodily injury" sustained by the "insured" caused by an "accident." The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the "uninsured motor vehicle."
It is not disputed that under the policy a phantom vehicle constitutes an "uninsured motor vehicle" if it "caused bodily injury to an insured." Bituminous nonetheless denied Mr. Esmond's claims because it did not believe that the incident involving the phantom vehicle constituted a proximate cause of his injuries. Mr. Esmond filed a Petition against Bituminous, alleging damages for breach of its contract to provide uninsured motorist coverage. Bituminous moved to dismiss Mr. Esmond's
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