28 Fla. L. Weekly D432a
Insurance — Uninsured motorist — Hit and run vehicle — Steel beam in roadway — Trial court improperly entered summary judgment for insurer, whose insured sought uninsured motorist benefits for injuries received when another vehicle ran over a steel beam which was lying in the roadway, propelling the beam into insured’s vehicle, on the ground that the steel beam was of unknown origin — As the responding highway patrol officer concluded, the only plausible source of the beam was an unidentified truck to which the beam was improperly secured, thus allowing it to fall from the truck into the roadway, and this truck fits within the policy definition of hit and run vehicle as a type of uninsured motor vehicle
JOHN DENOIA, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D02-1099. L.T. Case No. 01-10547. Opinion filed February 12, 2003. An appeal from the Circuit Court for Dade County, Ronald C. Dresnick, Judge. Counsel: Mark D. Press, for appellant. Richard A. Sherman; Alan L. Landsberg and Jorge L. Maxion, for appellee.
(Before COPE and WELLS, JJ., and NESBITT, Senior Judge.)
(COPE, J.) John Denoia appeals an adverse summary judgment in his suit seeking uninsured motorist benefits. On the facts present here, we conclude that defendant-appellee Hartford Fire Insurance Company was not entitled to summary judgment.
Plaintiff Denoia’s automobile is insured by defendant Hartford. While driving westbound on the multi-lane Gratigny Parkway, the plaintiff was involved in an accident.
As we interpret the plaintiff’s deposition, the car in front of the plaintiff ran over a steel beam which was lying in the roadway. This propelled the beam up into the air, and it struck the plaintiff’s front bumper. The plaintiff saw the beam coming for approximately one second and was unable to take evasive action. The trooper testified that the beam lodged in the undercarriage of plaintiff’s car, making it impossible to steer. The plaintiff’s vehicle struck the guardrail. The plaintiff was rendered unconscious and was hospitalized.*
The plaintiff received personal injury protection benefits. Thereafter he sought uninsured motorist benefits under his insurance policy. The insurer declined to pay the claim and the plaintiff brought suit.
The highway patrol trooper who investigated the accident testified that the steel beam was approximately six inches wide and twelve to fifteen feet long. The only plausible explanation for its being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway. There was no adjacent construction site and no other explanation for the presence of the beam on the roadway. There were no identifying marks on the steel beam, so the source of the beam could not be determined.
The trial court concluded that since the beam was of unknown origin, there could be no viable uninsured motorist claim. The court entered summary judgment for the insurer, and the plaintiff has appealed.
The plaintiff’s insurance policy included uninsured motorist coverage.** The definition of uninsured motor vehicle includes the following:
C. Uninsured motor vehicle means a land motor vehicle or trailer of any type:
. . . .
3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits or which causes an accident result[ing] in bodily injury without hitting:
. . . .
c. Your covered auto.
(Emphasis added).
On these facts, we think the truck which was the source of the steel beam fits within the definition of hit-and-run vehicle. Under the policy, a hit-and-run vehicle is one whose operator or owner cannot be identified. Thus, it is not an impediment to recovery that the beam cannot be traced to the truck which carried it.
It is the responsibility of the truck operator to secure the load the truck is carrying. As the highway patrol trooper concluded, the only plausible explanation for this accident is that a truck operator negligently failed to secure the beam, thus allowing it to fall from the truck into the roadway, where it was hit by another motorist and propelled into the plaintiff’s car. Under the terms of the insurance policy, the truck caused an accident resulting in bodily injury (but without the truck itself hitting) the plaintiff’s automobile. See Amarnick v. Automobile Insurance Co., 643 So. 2d 1130 (Fla. 3d DCA 1994); Allstate Insurance Co. v. Bandiera, 512 So. 2d 1082 (Fla. 4th DCA 1987); see also Berry v. State Farm Mutual Automobile Ins. Co., 556 N.W.2d 207 (Mich. Ct. App. 1996).
For the stated reasons, we respectfully disagree with the conclusion reached by the trial court. We reverse the summary judgment and remand for further proceedings consistent herewith.
Reversed and remanded.
__________________
*Two other cars also suffered disabling undercarriage damage.
**The insuring agreement provides in part:
A. We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
