Loose log wreaks havoc: Must UM insurer pay?
On February 15, 2012, James Lawrence Bennett was traveling west on Georgia 32 in Brantley County while driving a Freightliner tractor-trailer truck. He was traveling alone, and the truck was empty at the time. A tractor-trailer hauling a load of logs approached him traveling in the opposite direction. It was undisputed that, as the two tractor-trailers passed each other, a log hanging off the oncoming log truck struck Bennett’s tractor, shattering the windshield and causing shattered glass to strike Bennett’s eyes and face. It was further undisputed that there were no eyewitnesses to the incident, no part of the oncoming logging truck made any contact with Bennett’s truck, the logging truck did not stop, and the owner and driver of the logging truck had not been identified.
Bennett filed suit against three John Does: the operator and the owner of the logging truck, as well as the employer of the operator of the logging truck. He served American Alternative Insurance Company (AAIC), his employer’s uninsured motorist carrier, and Southern General, his personal uninsured motorist carrier. AAIC and Bennett both filed motions for summary judgment, and the trial court granted Bennett’s motion for summary judgment and denied AAIC’s motion, finding:
Whether an attached log is an integral part of the unknown log truck is a question of fact. There is an unopposed expert affidavit stating an attached log is an integral part of a log truck in evidence. As such, the undisputed facts establish the attached log was an integral part of the unknown log truck.
Thereafter, AAIC and Bennett filed a stipulation as to damages only, reserving AAIC’s right to appeal the grant of summary judgment, and the court issued a final judgment in the case. AAIC appealed.
On appeal, AAIC asserted that the trial court erred when it determined that AAIC was liable for uninsured motorist coverage because no actual physical contact between the trucks occurred and no eyewitness was present to corroborate Bennett’s account of the incident. The appellate court agreed, citing a state statute that mandates that unless an occurrence is corroborated by an eyewitness, actual physical contact must occur between the motor vehicle owned or operated by the unknown person and the person or property of the insured.
The appellate court stated that the trial court erred in relying on the affidavit of the law enforcement officer. In his affidavit, the officer at the scene made the unsupported and conclusory assertion: “When the log is securely attached to the trailer by the chain or strap, it is an integral part of the vehicle traveling on the public road.” “But [u]ltimate or conclusory facts and conclusions of law … cannot be utilized on a summary judgment motion.” The trial court’s order granting summary judgment to Bennett and denying summary judgment to AAIC was reversed.
American Alternative Insurance Company vs. Bennett-Court of Appeals of Georgia-November 19, 2015-No. A15A0855.