IN THE

TENTH COURT OF APPEALS

No. 10-04-00298-CV

Mohamad Elchehimi, Individually

and as Parent and Next Friend of

K.E. and L.E., Minor Children,

                                                                      Appellant

 v.

Nationwide Insurance Company,

                                                                      Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 03-C-3352

          Is an “alligator” a vehicle?  Until today, no.  But no longer am I confident of that answer.  There was no question that the tread of a truck tire which has separated from the tire casing, commonly referred to as an “alligator,” when appearing on our nation’s highways by the thousands, was not a “vehicle” as defined for uninsured motorist coverage.  There is no question that the tread on a tire is an important component part of the vehicle.  So over the next 20 years we will be litigating the issue of what is a large enough component part or an important enough component part of a vehicle to be a “vehicle” within the definition for uninsured motorist coverage. 

Host of Questions

          Is a metal leaf spring that has broken and fallen out on the highway a component part?  It is not the whole spring, or even a whole leaf from a spring, it is just the nasty part that is about 18 inches long with a 90° bend and a lip of about an inch at the end which gives it just enough of a curl that when run over by the vehicle that lost it, or another vehicle, can become airborne and lethal.  Is a muffler a vehicle?  Is a single tire a vehicle?  Is a single bolt or screw a vehicle when it “collides” with the tire of another vehicle causing a blowout and rollover?  The fact patterns of what can be attached as a component to a vehicle that may become separated and collide with another vehicle causing damage are endless. I recently saw a photograph of a car with a regular 110 volt home-type window unit air conditioner installed in the right rear window.  No, it did not need a long extension cord.  It was plugged into the portable generator that had been mounted on the top of the trunk lid.  When these items become detached, are they a vehicle for purposes of uninsured motorist coverage?

Law versus Result

          So what we do here today, in the majority opinion, is decide whether the law’s consistent application, harsh though it may seem, is going to yield to a warm, comfortable result.  I choose to follow the consistent application of the law and would follow the San Antonio Court when they held that a loading ramp that came loose from a trailer was not a “vehicle” for purposes of uninsured motorist coverage.  And it is not because it was part of the trailer because under the definition, the term “vehicle” includes a trailer.  The reason the San Antonio Court held it did not meet the definition of “vehicle” was very simple and logical.

This case is unlike other reported cases because the summary judgment record shows the ramp was not cargo; rather, it was a component of the trailer that detached from the trailer immediately before colliding with Smith’s vehicle.  Smith contends, essentially, that the ramp was not on the road long enough to become debris; or at the very least, a fact question exists about whether the ramp was debris.  We need not determine whether the ramp was debris—whatever it was, it was not a trailer or a motor vehicle, and Smith’s policy provides UM coverage only if a “land motor vehicle or trailer” is involved.  (footnotes omitted)

Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 Tex. App. LEXIS 5056, *6-7 (Tex. App.—San Antonio June 18, 2003, pet. denied).

          We should dispose of this case with the same simplicity and logic.  By the very argument that the wheels and axle were an integral, component part of a vehicle, the conclusion that it is not a vehicle should be obvious.

Problems in the Majority’s Analysis

          For the majority’s theory to work, they know they must connect it in time, thus they add a requirement that the actual physical contact must occur in an unbroken chain of events.  This may limit some “alligators” from wandering into the courtroom.  But when a truck loses a tire tread—a cap—, how can you distinguish the movement from the initial vehicle from one that ran over it and hurled it into the path of a motorist?  Or if you are in the area of Lipsitz’s recycling facility, how can you know the wheel assembly came from the running gear of an operating truck, rather than from the load of scrap metal the truck is hauling?

          Another problem for the majority’s theory is that they have determined it must be an “integral” component part.  Defining “integral” component parts is also going to be a rich source of litigation over the next 20 years.  I would have thought integral meant something like it was defined in the dictionary—“Essential or necessary for completeness.” The American Heritage College Dictionary, 706 (3rd Edition, Houghton Mifflin Company 1997).  I cannot determine if “integral” will be a limitation on what constitutes a component part or may be an expansion of the scope of component parts leading to liability.  If the part is so essential that it is necessary for the operation of the vehicle, then the vehicle would stop and the uninsured motorist could then be identified.  But in this instance, the part which separated though large and seemingly important—a drive axel and tandem wheels and tires—did not render the vehicle from whence it came inoperable.  Of course, I am assuming it did not come from a load of scrap metal.

          Finally, contrary to the extensive discussion of “contact” in the majority opinion, in which a highly suspect survey of state law is conducted, the issue is not limited to contact or actual contact; it is about the definition of vehicle.  That is what the San Antonio Court focused upon and that is the issue we should focus upon.  There is no question the wheel assembly made physical contact with the insured’s vehicle.  The real question is, does the wheel assembly come within the definition of vehicle.

Conclusion

          I would rewrite neither the insurance contract nor the insurance code.  The axel and tandem wheel set are not a vehicle. I would affirm the trial court’s judgment.  Because the majority does not, I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed December 28, 2005