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Mitchell v. United States Automobile Association of San Antonio12/5/2002
prior to the passage of the Uninsured Motorist Act, the Court accepted the propelling of an object by a vehicle into the insured as a compensable injury.
. In the case at bar, Garrett stopped his van on the side of the road as a result of the erratic driving of the man in the white car. His van was in this location when Mitchell crashed into it. It would not have been there but for the negligence of the driver of the white car. As in Johnson, the object causing a portion of the injury to Mitchell was set in motion by the white car, and thus, Mitchell's uninsured motorist coverage was triggered.
. In Anderson v. State Farm Mut. Auto. Ins. Co. 555 So.2d 733 (Miss.1990), this Court required physical contact between the unidentified motorist and the innocent driver and refused to adopt a corroborative evidence exception. However, the Court discussed Brewer, stating:
The interpretive issue before the Court lay within the penumbra of doubt regarding "actual physical contact," both the statute and contract being without explicit directive regarding physical contact between the uninsured motorist's vehicle and another object which in turn struck the plaintiff. Reflection makes clear that an exclusion of cases where the uninsured motorist strikes an object which strikes the plaintiff could produce absurd results. Consider, for example, the case where the uninsured motorist rearends one vehicle which in turn strikes the plaintiff's vehicle in the rear. Id., 734-35.
In my opinion, the absurd result warned of in Anderson is apparent today. It is clear that the white car forced Garrett's van to the shoulder of the road. It follows that Mitchell, also forced off the road by the white car, would not have made contact with Garrett's van had it not been forced into that location. Requiring either Garrett or Mitchell to make contact with the white car is an absurd prerequisite to recovery. As Justice McRae pointed out in his well-reasoned dissent in Massachusetts Bay Ins. Co. v. Joyner, 763 So.2d 877 (Miss.2000):
Under the majority's semantically correct, yet logically flawed construction of the UM statute, in order for an insured to "activate" the policy, he must wait until the automobile "strikes" his car before attempting to avoid immediate danger. Such a requirement would be inconsistent with this Court's view that one should mitigate its damages. Cf. Barkley v. Miller Transps. Inc., 450 So.2d 416, 420 (Miss.1984)("It is [one's] duty ... to take reasonably proper steps to avoid an accident or injury ... after having knowledge of the danger."). 763 So. 2d at 883.
. As that portion of the trial court's ruling that is quoted by the majority recognizes, strict adherence to the letter of the law creates a manifest injustice in the case at bar. This injustice has been recognized by many courts. To prevent this result, and yet `uphold' the impact requirement, courts have been compelled to write creatively. For example, in Barfield v. Insurance Co. of North America, 443 S.W.2d 482 (Tenn. Ct. App. 1969), the court held that a `physical contact' requirement was satisfied when the rear wheels of an unidentified vehicle propelled a rock through a claimant's windshield causing him severe injury . See also S. Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369 (Miss.1987). In one extreme case, a California arbitrator decided that a `physical contact' requirement was satisfied when only oncoming headlight beams `struck' insured's vehicle prior to an accident! A. I. Widiss, A Guide to Uninsured Motorist Coverage, ยง 2.41, at 84-5 n.194 (1969).
. The preceding examples indicate a trend toward the erosion of the strict adherence to the letter of this law. Th
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