But one major problem with collecting compensation? The driver of the truck involved didn’t stop. What’s more, it wasn’t the truck that actually struck the motorcyclist, but instead debris falling from the truck. So when the plaintiff in this case before the North Carolina Court of Appeals sought compensation, his uninsured motorist coverage carrier denied the claim because the two vehicles didn’t actually make contact.
Unfortunately for the plaintiff, the appellate court sided with the defense in this matter.
According to court records, the plaintiff was operating his motorcycle in Onslow County on State Road 1509 on one day in January 2013. At the same time, a large truck hauling gravel and traveling in the opposite direction rounded a curve in the road, driving at a speed that appeared to be excessive. The truck crossed the center line and swerved, resulting in gravel being dumped directly on and around the plaintiff. Although the debris made direct contact with the plaintiff, the truck did not.
However, the impact of the debris caused the plaintiff to lose control of his motorcycle, and he crashed. Neither the driver nor the owner of the truck was ever identified.
In a situation like this, our Asheville motorcycle accident attorneys would look at uninsured motorist coverage as an option, which this operator did. However, his insurance company denied the claim, arguing that since the plaintiff was hit by debris and dirt that fell from the truck, and there was no contact between the “phantom” truck and the motorcycle, this event did not trigger UM coverage.
When this claim was denied, the plaintiff filed a lawsuit against the insurer for breach of contract, breach of fiduciary duty, bad faith insurance coverage denial, violation of North Carolina’s Motor Vehicle Safety and Financial Responsibility Act, and unfair and deceptive trade practices. To support his claim, the plaintiff submitted an eyewitness to the incident, who stated she was four or five cars behind the plaintiff, whom she said was traveling no faster than 35 mph and slowed to 15 mph as he approached the curve. The truck, she said, was speeding as it rounded the curve and appeared as if it might actually tip over. She stated the accident would not have occurred but for the dump truck traveling at a speed that was unreasonable. She further stated the plaintiff could not do anything to avoid the crash.
The defendant filed a motion to dismiss, arguing that courts in North Carolina have interpreted the law to require physical contact between a vehicle operated by an insured motorist and a hit-and-run driver in order for the uninsured motorist provisions of the law to apply.
The trial court granted the defense motion to dismiss, and the plaintiff appealed, arguing the trial court erred in dismissing his complaint for failure to state a claim on the basis of his not being able to show his motorcycle made actual physical contact with the unidentified truck in question. Unfortunately for the plaintiff, the appellate court affirmed.
It should be noted that had the driver or truck owner been identified, it’s possible the plaintiff could have recovered damages for this incident because he could have argued negligence due to unsafe speed and potentially overloading. However, the provisions of the state’s UM coverage statute do require evidence of direct physical contact between vehicles to recover damages in a hit-and-run.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Kaska v. Progressive, March 21, 2017, North Carolina Court of Appeals
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Motorcycle Accident Victim Awarded $18.5M for Critical Injuries in Construction Zone Crash, March 31, 2017, Motorcycle Accident Lawyer Blog