Superior Court of New Jersey,Appellate Division.

Joseph DADURA, Jr. and Barbara Dadura, his wife, Plaintiffs-Appellants,

v.

YUM! BRANDS, INC., d/b/a Taco Bell Corp., and/or Taco Bell Corp., Barnathan Brothers, d/b/a El Rancho Foods, Raul Rodriguez, Defendants,

andWalmart Stores, Inc., McLane Company, Inc., McLane Foodservice, Inc., Transco, Inc., Defendants-Respondents.

Argued March 4, 2008.

Decided April 8, 2008.

PER CURIAM.

Plaintiffs appeal from an order entered on April 26, 2007, granting summary judgment in favor of defendants Walmart Stores, Inc ., McLane Company, Inc., McLane Foodservice, Inc., and Transco, Inc. and dismissing their complaint with prejudice. We affirm.

The facts pertaining to this appeal are relatively straightforward. Plaintiff Joseph Dadura (Dadura) was employed by McLane Foodservice, Inc. as a “driver specialist.” On the morning of January 10, 2003, Dadura departed from Burlington, New Jersey, with a tractor-trailer loaded with food products that were to be delivered to various restaurants in New York City and New Jersey. Dadura’s partner David Miller accompanied him on this route.

McLane Foodservice, Inc. is wholly-owned by McLane Company, Inc ., which is in turn wholly-owned by Walmart Stores, Inc. Defendant was driving a truck owned by Transco, Inc., an entity also owned by Walmart.

Dadura made deliveries at three restaurants in New York City and in northern New Jersey before proceeding to a Taco Bell restaurant on Bergenline Avenue in West New York, New Jersey. Dadura and Miller arrived there between 5:30 a.m. and 6:00 a.m. Dadura explained that in that area, Bergenline Avenue near 67th Street is a two-way street with one lane for moving traffic and another lane for parking on each side of the street.

Dadura parked the tractor-trailer on Bergenline Avenue in front of the Taco Bell. At his deposition, Dadura testified that he was not permitted to park on 67th Street, and therefore he had to double-park. Dadura said that he activated the “four-way” lights on the vehicle. Dadura stated that he did not utilize any other warning devices, such as cones or orange triangles, because his employer did not “issue any safety equipment.” According to Dadura, the weather was “dry and cold.” He described Bergenline Avenue as “flat” and said that it was illuminated by streetlights.

Dadura and Miller began unloading the truck. Dadura said that his routine was to check the invoice to determine the products that were needed for that particular location, and then unload the products in the street. Dadura and Miller then would deliver the products to the restaurant using hand-trucks. Miller was inside the truck and Dadura was standing in the street on the back end of the trailer.

Miller noticed a Honda Civic approaching from a distance. He stated that the vehicle was traveling in the lane of traffic where the tractor-trailer was parked. The car approached a red light at the intersection directly behind the tractor-trailer. Miller saw that the car was not slowing down and was going to pass the red light without stopping. The vehicle went through the red light. Miller thought that the car would not avoid hitting the tractor-trailer, since it was traveling at a high rate of speed. Miller called out to Dadura to move but Dadura was struck by the vehicle. Plaintiff sustained serious injuries in the accident.

The driver of the vehicle was identified as Raul Rodriguez. The police investigation revealed that Rodriguez and a friend had been at certain nightclubs in River Edge, New Jersey, and Queens, New York, on the evening before the accident. At around 2:30 a.m., Rodriguez consumed two beers and a beverage called a “Long Island Iced Tea.” Rodriguez admitted that he fell asleep at the wheel before his car struck plaintiff and crashed into the tractor-trailer. Rodriguez was convicted of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). He was sentenced to three years of probation.

Dadura testified that most of the restaurant locations on his delivery route were “free-standing” facilities with parking lots that allowed Dadura to pull his tractor-trailer off the street and off-load safely. However, the Taco Bell in West New York is on a corner in a very busy downtown urban shopping district and it did not have such an arrangement. Dadura said that his employer did not provide him with instructions on the procedures that should be followed when making deliveries at that location.

Dadura also stated that during several previous deliveries to the Taco Bell in West New York, he attempted to park the tractor-trailer on 67th Street, which is a one-way street near the Taco Bell. However, the local police told him that he had to double-park the truck on Bergenline Avenue. Dadura asserted that when he did so, he was dangerously exposed to the ongoing traffic.

Dadura claimed that, prior to the accident, he complained on numerous occasions to his supervisors, James Fox, Thomas Foster, and Belinda Jackson. Dadura said that he had expressed his concerns about the fact that he had to double-park on Bergenline Avenue, and he was exposed to exactly the kind of accident that occurred on January 10, 2003. Dadura asserted that his complaints were not only ignored but he was told that he would be written up and fired if he did not make the deliveries.

Plaintiffs filed a complaint in which they asserted claims against Walmart, Transco, McLane Foodservice, and McLane Company, and others.Plaintiffs alleged that Walmart, Transco and the McLane defendants were:

Plaintiffs also named as defendants Yum! Brands, Inc. d/b/a Taco Bell Corp.; Taco Bell Corp.; Barnathan Brothers d/b/a El Rancho Foods; and Rodriguez. In 2006, summary judgment was granted to the Taco Bell entities. At argument, we were advised that summary judgment also had been entered in favor of Barnathan. Moreover, it appears that plaintiffs did not pursue their claims against Rodriguez.

careless and negligent in that, among other things, they failed to provide [plaintiff] for purposes of this delivery of materials with appropriate equipment pursuant but not limited to Section 393.95 of the Federal Motor Carrier Motor Safety Regulations and therefore failed to provide plaintiff with an appropriate and safe place to off-load and accomplish delivery; failed to provide plaintiff with appropriate warning devices and/or traffic implements so as to alert on-coming traffic to his presence; and were otherwise negligent and careless as to be established at the time of trial[.]

Dadura’s wife Barbara Dadura claimed that, due to the negligence of defendants, she had been deprived of her husband’s care, services, companionship, and consortium.

In discovery, plaintiffs furnished a report dated October 6, 2006, from Ronald E. Tomasetti, a safety consultant, who stated that Dadura’s supervisors at McLane Foodservice were aware of his safety concerns. According to Tomasetti, McLane Foodservice violated accepted and reasonable operating practices established by the Occupational Safety and Health Administration (OSHA) to ensure that workers have a place of employment that is free of recognized hazards that may cause death or serious injury.

Tomasetti stated that, if the managers at McLane Foodservice had performed a “simple route survey,” they would have known that double-parking on Bergenline Avenue in West New York would place the tractor-trailer in a hazardous location. Tomasetti wrote that McLane Foodservice authorized Dadura and Miller to off-load on Bergenline Avenue, “not only without consideration for the safety of [its] employees, [which is] a direct violation of OSHA regulations, but in such a way as to intentionally expose them to a specific and recognized risk, specifically, to be struck by on-coming vehicles.”

Tomasetti also stated that reports from the West New York Police Department revealed that 165 “similar” accidents had occurred on Bergenline Avenue in the period from January 2003 to June 2003. Tomasetti asserted that 24 “similar” accidents occurred on Bergenline Avenue one month after the accident in which Dadura was injured. He added that the “total accident count for Bergenline Avenue in West New York is over 120 accidents per month.”Tomasetti stated that this accident information was available to defendants prior to Dadura’s accident but defendants had failed to research or consider the accident data before permitting the tractor-trailer to double park on Bergenline Avenue at the West New York delivery site.

Tomasetti concluded that, “to a reasonable degree of certainty within the trucking industry, there was a substantial certainty of the type of injury suffered by [Dadura] occurring at this location.”Tomasetti further opined that McLane Foodservice “intentionally exposed [Dadura] to this danger” and that “[t]his exposure was not necessary or required as part of the trucking industry, but rather a deviation from accepted and acceptable standards.”

On February 15, 2007, Walmart, Transco and the McLane defendants filed a motion for summary judgment, arguing that plaintiffs’ claims were barred by the exclusive remedy provision of the Workers’ Compensation Act (Act), specifically N.J.S.A. 34:15-8, which provides in pertinent part that “[i]f an injury or death is compensable under [the Act], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, expect for intentional wrong .”Judge David W. Morgan heard argument on the motion on March 16, 2007. On April 26, 2007, the judge filed a written opinion in which he concluded that plaintiffs’ claims against Walmart, Transco, and the McLane entities were barred by N.J.S.A. 34:15-8.

The judge found that the workers’ compensation bar applied to Dadura’s claims against McLane Foodservice because his claim “constitutes a negligence or gross negligence allegation; there is insufficient basis in the record for a rational fact finder to infer that [McLane Foodservice] deliberately intended to harm [Dadura] or knew the consequences of its inaction were substantially certain to result in harm.”The judge further found that Dadura’s injury and the circumstances in which it occurred were a fact of industrial life and were not outside of the purview of the conduct that the Legislature intended to immunize under N.J.S.A. 34:15-8.

The judge added that McLane Company, Transco, and Walmart had argued that they also were immune under N.J.S.A. 34:15-8 from liability for the claims asserted by plaintiffs. Plaintiffs had not responded to this argument. In any event, the judge stated:

There are no claims made by [Dadura] against either Transco or Walmart which are independent from the claims against McLane. The basic gist of [Dadura’s] complaint is that his “employers” intentionally placed him in a dangerous situation where they knew he would be injured. That same theme holds as to Transco and Walmart without any separate theory or cause of action stated as to them. Since there are no claims against the related entities independent of the claims made against [Dadura’s] direct employer McLane and since the entities are affiliated as an integrated business entity, this court finds that the [w]orkers’ [c]ompensation bar immunizes all remaining defendants named in this action.

On April 26, 2007, the judge entered an order memorializing his decision. This appeal followed. Plaintiffs argue that the judge erred by granting summary judgment to Walmart, Transco, and the McLane entities. Plaintiffs contend that the facts and the favorable inferences that can be drawn from those facts provide sufficient evidence to establish that the employer’s failure to act in this case created a substantial certainty that its employees would suffer the sort of injury that Dadura sustained on January 10, 2003.

We have carefully considered the record in light of the arguments raised by plaintiffs. We are convinced that plaintiffs’ arguments are without merit. We therefore affirm the order granting summary judgment to Walmart, Transco and the McLane entities substantially for the reasons stated by Judge Morgan in his thorough and comprehensive written opinion dated April 26, 2007. R. 2:11-3(e)(1)(A) and (E). We add the following brief comments.

The workers’ compensation bar in N.J.S.A. 34:15-8 generally precludes an employee from asserting a claim against his employer for an act or omission that results in injuries or death, except when such injury or death is the result of an “intentional wrong.” Our Supreme Court has established a two-part test for determining whether an employer’s actions constitute an “intentional wrong” for purposes of N.J.S.A. 34:15-8. A court must consider the employer’s conduct as well as the context in which that conduct occurs.Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 178-79 (1985).

In assessing the employer’s “conduct,” the court must determine whether the employer acted with “substantial certainty” that its actions would result in injury or harm. Id. at 177-78.Moreover, in considering the “context” of the matter, the court must consider whether the injury and the circumstances in which it occurred may “fairly be viewed as a fact of life of industrial employment, or … plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [Workers’] Compensation Act[.]” Id. at 179.

In Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002), the Court additionally explained that:

when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers’ Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee’s allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers’ Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee’s allegations, if proved, would meet the context prong, the employer’s motion for summary judgment should be denied; if not, it should be granted.

[Id. at 623.]

Here, Judge Morgan correctly found that plaintiffs failed to present sufficient evidence to raise a genuine issue of material fact as to whether Dadura’s injury resulted from an “intentional wrong” of his employer. The judge viewed the evidence in a light most favorable to plaintiffs, gave the plaintiffs the benefit of all favorable inferences that could be drawn from the evidence, and properly determined that Walmart, Transco, and the McLane entities were entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Judge Morgan correctly noted that, while the evidence might support a claim for negligence, gross negligence, or even reckless conduct on the part of Dadura’s employer, the evidence was insufficient to allow a reasonable fact-finder to determine that the employer “deliberately intended to harm [Dadura] or knew that the consequences of its inaction were substantially certain to result in harm.”Judge Morgan also correctly found that the evidence failed to meet the “context” prong of the Millison test. The judge aptly observed that the injury and the circumstances in which it occurred were “a simple fact of industrial life” and not “outside the purview of the conditions” that the Legislature intended to immunize under N.J.S.A. 34:15-8.

Affirmed.

Supreme Court of Texas.

NATIONWIDE INSURANCE COMPANY, Petitioner,

v.

Mohamad ELCHEHIMI, Individually and as Parent and Next Friend of Khaled Elchehimi and Lukman Elchehimi, Minors, Respondent.

March 28, 2008.

J. DALE WAINWRIGHT, Justice.

This breach of contract suit stems from the denial of coverage by Nationwide Insurance Company on a claim arising from a collision between insured Mohamad Elchehimi’s vehicle and an axle-wheel assembly separated from an unidentified semi-trailer truck. The court of appeals reversed the trial court’s grant of summary judgment in favor of Nationwide. Because there was no actual physical contact between Elchehimi’s vehicle and the unidentified truck as required by statute to trigger the uninsured motorist coverage, we reverse the court of appeals’ judgment.

On January 4, 2002, Mohamad Elchehimi’s station wagon collided with a drive axle and attached tandem wheels that had separated from an eighteen-wheel semi-trailer truck. The unidentified truck, which was being driven in the opposite direction on a divided highway, did not stop. Momentum carried the axle-wheel assembly across the dividing median where it struck Elchehimi’s vehicle, injuring the occupants and damaging the car. Elchehimi had purchased from Nationwide a standard Texas personal automobile insurance policy, including the optional statutorily defined unidentified motorist coverage. Nationwide denied Elchehimi’s claim for uninsured motorist benefits because the impact between Elchehimi’s vehicle and the axle-wheel assembly was not “actual physical contact” with an unknown “motor vehicle” as required by the terms of the policy and the Texas Insurance Code.

Elchehimi sued Nationwide for breach of contract and breach of the duties of good faith and fair dealing. Nationwide moved for summary judgment, arguing that no actual physical contact occurred between Elchehimi’s vehicle and the unidentified truck. The trial court granted the motion. A divided court of appeals reversed, concluding that an issue of fact remained as to whether actual physical contact occurred. 183 S.W.3d 833, 839. Specifically, the court of appeals interpreted the Texas uninsured/underinsured motorist statute, then article 5.06-1(2)(d) of the Texas Insurance Code, to require actual physical contact only with an “integral part” of an unidentified motor vehicle as a “result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence” rather than actual physical contact with a motor vehicle. Id. at 838-39;see also Brooks v. State Farm Mut. Auto. Ins. Co., 2003-0389, p. 7 (La.App. 4 Cir. 9/24/03);855 So.2d 419, 424 (citing references omitted). Nationwide petitioned this Court for review.

The parties do not dispute the facts of the collision and agree that the following statutory provision, which provides the parameters of coverage for damage or injury caused by unidentified motorists in Texas, governs this dispute:

[F]or the insured to recover under the uninsured motorist coverage if the owner or operator of any motor vehicle that causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.

TEX. INS.CODE § 1952.104(3) (emphasis added). The relevant policy language is consistent with the statute. To survive summary judgment, Elchehimi must raise a fact issue that his vehicle’s collision with the axle-wheel assembly qualified as “actual physical contact” with a “motor vehicle” or a legally recognized substitute for such contact.

Because there was actual physical contact between Elchehimi’s vehicle and the axle-wheel assembly, we examine whether the assembly is a motor vehicle under the Texas Insurance Code. Section 1952.104(3) does not define motor vehicle. However, the common usage of the term motor vehicle does not include a single axle attached to two wheels. See Slaughter v. Abilene State Sch., 561 S.W.2d 789, 791-92 (Tex.1977).“Common usage has made the phrase ‘motor vehicle’ a generic term for all classes of self-propelled vehicles not operating on stationary rails or tracks.”Id. at 792.In addition, other relevant statutory definitions aid our analysis. The Texas Insurance Code expressly incorporates the Texas Motor Vehicle Safety-Responsibility Act, chapter 601 of the Transportation Code. TEX. INS.CODE § 1952.101(a). Chapter 601 sets minimum coverage amounts for vehicle liability insurance, and those amounts explicitly apply to uninsured motorist coverage. TEX. TRANSP. CODE § 601.072. Because Section 1952.104(3) and Chapter 601 address the same subject matter-motor vehicle insurance-the definition of motor vehicle in section 601.002 of the Transportation Code is persuasive, if not controlling. Chapter 601 defines a motor vehicle as “a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails.”TEX. TRANSP. CODE § 601.002(5).

A drive axle with two tandem wheels attached on one side lacks an engine or other means of propulsion. It is therefore neither a self-propelled vehicle nor a vehicle propelled by electric power from overhead wires. This wheel assemblage is not capable of carrying a load, nor can it be towed down a road by a self-propelled vehicle other than being dragged by or mounted underneath one, as Elchehimi’s expert witness testified. The axle-wheel assembly is thus not a trailer or semitrailer designed for use with a self-propelled vehicle. The axle-wheel assembly is not a motor vehicle under Chapter 601. Applying the common usage of the term and the definition in Chapter 601, we conclude that physical contact with a detached axle and tandem wheels is not actual physical contact with a motor vehicle under the unidentified motor vehicle provision.

Elchehimi also argues that this collision involved a legally recognized substitute for the statute’s actual physical contact requirement. In Latham v. Mountain States Mutual Casualty Co., the court of appeals determined that the physical contact requirement could be satisfied through indirect contact where an unidentified vehicle first impacts an intermediary vehicle that in turn collides with an insured claimant. 482 S.W.2d 655, 657 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref’d n.r.e.). The court of appeals held that “[w]here a Car A strikes Car B and propels it into Car C, there is physical contact between Car A and Car C” within the meaning of an automobile insurance policy that required physical contact with an unidentified vehicle. Id.

*3No Texas court, however, has ever relied on Latham to conclude that physical contact occurred where there was no “Car B.” Cf. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81 S.W.3d 452, 462 (Tex.App.-Austin 2002) (observing, but not holding, that Latham’s rule “survives in the fact situation … where car A hits car B which then hits car C” in a case where an uninsured motorist hit an insured’s vehicle, causing the vehicle to collapse on the insured), rev’d on other grounds,149 S.W.3d 111 (Tex.2004). Only two motor vehicles were involved in Elchehimi’s collision: the unidentified truck and Elchehimi’s station wagon. Because the axle-wheel assembly is not a motor vehicle, it cannot fill the role of an intermediary vehicle to provide indirect contact between the unidentified truck and Elchehimi’s vehicle. Latham is further distinguishable because the court in Latham was interpreting insurance policy language, not a statute, and the policy language did not have an actual physical contact requirement. Latham, 482 S.W.2d at 657. Five years after Latham, the Legislature added the actual physical contact requirement to the uninsured motorist statute. See Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, art. 5.06-1(2)(d), 1977 Tex. Gen. Laws 370, 371 (repealed 2005).

No other substitute exists for the requirement of actual physical contact with the motor vehicle itself. Texas courts have uniformly rejected the contention that a collision with cargo and other objects falling from a car satisfies the requirement of actual physical contact with a motor vehicle. See, e.g., Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 333-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.)(holding that water pump falling from truck and striking insured was not actual physical contact with a motor vehicle); Republic Ins. Co. v. Stoker, 867 S.W.2d 74, 77-78 (Tex.App.-El Paso 1993) (holding that insured rear-ending another car that was trying to avoid furniture dropped on the highway by an unknown driver was not actual physical contact with an unknown vehicle), rev’d on other grounds,903 S.W.2d 338 (Tex.1995); Williams v. Allstate Ins. Co., 849 S.W.2d 859, 861 (Tex.App.-Beaumont 1993, no writ) (holding that collision between the claimant’s vehicle and a steel pipe dropped from an exiting truck was not actual physical contact with a motor vehicle). Another court of appeals considering the issue of contact with parts of the vehicle itself, rather than simply cargo, has concluded that such contact is also not enough to satisfy this strict requirement. See Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 WL 21391534, 2003 Tex.App. LEXIS 5056, at *6-8 (Tex.App.-San Antonio June 18, 2003, pet. denied) (holding that collision between loading ramp that detached from trailer and insured’s vehicle was not actual physical contact with a motor vehicle). We agree that a collision with a separated piece of a motor vehicle, such as an axle-wheel assembly, is not actual physical contact with the motor vehicle as specifically required by the statute.

*4The dissent argues we should follow the court of appeals’ suggestion that Texas adopt an integral part test to determine whether actual physical contact occurred. 183 S.W.3d at 835. We decline, however, to adopt an integral part test not present in the text of the statute and inconsistent with the relatively bright line established by the Legislature. Moreover, such a test would be practically unmanageable, requiring a case-by-case analysis to determine if a part was substantial enough to serve as a proxy for a motor vehicle. This would lead to a line-drawing conundrum for courts of appeals. The Legislature did not create an exception to the statute’s requirement of actual physical contact with a motor vehicle, and we decline to do so.

In search of support for such an integral part test, the dissent and the court of appeals look to other state jurisdictions and the interpretation of those states’ unidentified motorist statutes. Although interesting, we do not believe this analysis is necessary because the language of the Texas statute is not ambiguous. See Tex. Dep’t of Protective & Reg. Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004) (“If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute’s plain language unless that interpretation would lead to absurd results.”) In addition, the dissent’s citations show there is no trend from which to glean a majority rule. Of the seven states the dissent identifies as having physical contact requirements in their unidentified motorist statutes and as having considered the integral part test, two have statutory language different than Texas,  four have adopted the test, and one has rejected it. Of the four states with cases adopting the integral part test, three have done so only at the intermediate appellate court level. At best, there is guidance from the highest courts of two states, New York and South Carolina, and they reach opposite conclusions on the issue.

The dissent agrees that the Texas uninsured motorist statute should be liberally construed to protect insureds “who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles.”Stracener v. United Serv. Auto. Ass’n, 777 S.W.2d 378, 382 (Tex.1989). Liberally construing a provision, however, does not permit divorcing its application from the words in the statute. The dissent states that our construction “does nothing to further the anti-fraud purpose behind the requirement of ‘physical contact’ with a ‘motor vehicle.’ “ To the contrary, creation of an integral part test would force courts to draw lines in each case along a continuum, to determine whether a particular part was large or important enough to be “integral,” whether the part was a piece of the vehicle or merely cargo, and whether the part was contemporaneously separated from the vehicle or had lain in the roadway long enough to become debris. All of these questions would open the door to uncertainty and potential fraudulent or fictitious claims, which the Legislature saw fit not to do. See Davis, 331 S.E.2d at 354 (“The requirement of physical contact with the unknown vehicle, and not just with an unattached part thereof, is a viable manner of preventing fraudulent, fictitious claims.”). The Legislature drew a relatively bright line, and we decline to fuzz it up. Requiring contact with the motor vehicle honors the language enacted by the Legislature and enforces the legislative purposes of protecting insured motorists and preventing fraud.

The language of the statute compels our conclusion. The salient factor here is that the insured’s vehicle did not make actual physical contact with the unidentified vehicle. Whether the item that did make contact with the insured’s vehicle was initially a piece of the unidentified vehicle or was cargo that had fallen off is irrelevant-in either case the item is not a motor vehicle. For these reasons, and without hearing argument, we reverse the judgment of the court of appeals, render judgment for Nationwide, and order that Elchehimi take nothing. TEX.R.APP. P. 59.1.

Justice O’NEILL filed a dissenting opinion, joined by Justice MEDINA.

Justice O’NEILL, joined by Justice MEDINA, dissenting.

An axle-and-wheel assembly detached from an unidentified tractor-trailer and, propelled by the vehicle’s momentum, flew across the highway median, striking Mohamad Elchehimi’s car and injuring its occupants. The Court concludes there was no actual physical contact between the two vehicles as the uninsured-motorist statute requires, and thus Elchehimi was not covered under his standard automobile insurance policy. The Court purports to rely upon the statute’s plain language, but nothing in that language compels the Court’s holding and the statute’s remedial purpose clearly belies it. In my view, when an integral part of an unidentified vehicle is propelled by the vehicle’s momentum and, in a continuous and unbroken sequence of events, collides with an insured’s vehicle, “actual physical contact” with a “motor vehicle” has occurred and coverage is afforded under the statute. Because the Court holds otherwise, I respectfully dissent.

I. The Statute

The uninsured-motorist (UM) statute was enacted to protect conscientious motorists from “financial loss caused by negligent financially irresponsible motorists.”Act of Oct. 1, 1967, 60th Leg., R. S., ch 202, § 3, 1967 Tex. Gen. Laws 448, 449; see Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 382 (Tex.1989). The statute protects motorists by requiring that all Texas automobile insurance policies provide coverage to the insured when the insured is hit by a motorist who is uninsured, underinsured, or unidentified.TEX. INS.CODE §§ 1952.101-1952.104. The statute is designed to reward responsible motorists who purchase insurance by providing them with coverage when the at-fault party’s insurer is unable to provide compensation for their injuries because the party is uninsured, underinsured, or unidentified. We have repeatedly and consistently held that because the UM statute is remedial, it should be construed liberally to give full effect to the Legislature’s purpose in enacting it-to provide coverage to insured motorists. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004) (“Th[e] Court has recognized that, because of their remedial purposes, [sections of the UM statute] should be liberally interpreted to give effect to the public policy that led to their enactment.”); Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 128 (Tex.2004); Stracener, 777 S.W.2d at 382.

Under the UM statute, when the owner or operator of a vehicle who would otherwise be liable to the insured is unknown, “actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.”TEX. INS. CODE § 1952.104(3). The Legislature understandably included this requirement to prevent fraud; insureds without collision coverage who are involved in one-car accidents might be tempted to claim a “phantom car” was at fault in order to obtain coverage if they did not have to prove there was “actual physical contact” with the unknown “motor vehicle.” Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 Tex.App. LEXIS 5056, at *4-(Tex.App.-San Antonio June 18, 2003, pet. denied).

Whether the requirements of section 1952.104(3) are met when something less than the entire unknown vehicle collides with an insured vehicle is an issue of first impression for our Court, but our courts of appeals have decided a number of cases establishing some guiding principles. In Latham v. Mountain States Mutual Casualty Co., for example, the court held that when an unknown vehicle strikes another vehicle, which in turn strikes the insured, the requirements of the section are met and coverage is afforded. 482 S.W.2d 655, 657 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref’d n.r.e.). However, collisions with cargo that has fallen from an unidentified vehicle or with debris in the roadway have been held not to constitute “actual physical contact” with a “motor vehicle.” Deville, 988 S.W.2d at 333;Williams, 849 S.W.2d at 861;Smith, 2003 Tex.App. LEXIS 5056, at(holding that a collision with the loading ramp of a trailer was not “actual physical contact” with a “motor vehicle”).

Thus, our courts of appeals have reasonably concluded that contact with something other than a vehicle or a part of a vehicle, such as road debris or cargo, does not constitute contact with a “motor vehicle” for purposes of the UM statute. Deville, 988 S.W.2d at 333;Williams, 849 S.W.2d at 861. In Smith, the court of appeals took the analysis one step further, concluding that contact with a vehicle part does not trigger coverage. 2003 Tex.App. LEXIS 5056, at *7. Although the court in Smith recognized that its holding was at odds with the UM statute’s remedial purpose, it failed to consider that remedial statutes are to be construed liberally in order to further that purpose. Id. at * 1;see Stracener, 777 S.W.2d at 382.

In this case, the court of appeals considered and adopted the integral-parts test. 183 S.W.3d 833, 838-39. Under that test, there is “actual physical contact” with a “motor vehicle” for purposes of the UM statute when the insured is struck by an integral part of another vehicle and there is a temporal continuity between the part’s detachment from the unknown vehicle and collision with the insured. Id. The temporal-continuity requirement exists in order to preserve the anti-fraud purpose of the “physical contact” element by requiring the insured to show that another motor vehicle was in fact the cause of the collision. See Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 574 N.Y.S.2d 927, 580 N.E.2d 399, 401 (N.Y.1991). I believe the integral-parts test comports with the statutory language and best serves its remedial purpose. See Sanchez, 149 S.W.3d at 115;Sturrock, 146 S.W.3d at 128;Stracener, 777 S.W.2d at 382.

Under the Court’s analysis, though, only a collision with an entire motor vehicle is covered under the UM statute. That rigid construction undermines the Legislature’s object in mandating UM coverage and does nothing to further the purpose advanced by section 1952.104(3)’s “actual physical contact” requirement. It is true that the integral-parts test is not expressed as such in the statute’s text, but neither does the statute specify that actual physical contact with a motor vehicle as a whole is required. Both the integral-parts test and the Court’s interpretation require construing a statute intended to be remedial in effect. Nothing in the statute itself compels the Court’s conclusion that only a collision with the motor vehicle as a whole will satisfy the statute, and the Court’s restrictive interpretation of section 1952.104(3) places that provision in tension with the UM statute’s fundamental purpose. See Smith, 2003 Tex.App. LEXIS 5056, at * 1. The integral-parts test, on the other hand, comports with the statutory language and furthers its underlying purpose. See Stracener, 777 S.W.2d at 382.

Moreover, the Court’s construction does nothing to further the anti-fraud purpose behind the requirement of “physical contact” with a “motor vehicle.” See Deville, 988 S.W.2d at 335 (Cohen, J., concurring). Under both the integral-parts test and the Court’s interpretation, the insured must show that “actual physical contact” occurred and that the contact was with an unknown motor vehicle. Whether that contact was with an integral vehicle part propelled into the insured’s vehicle by a continuous and unbroken sequence of events, or was with an unknown vehicle as a whole, makes little difference in light of the statutory purpose to protect responsible motorists and at the same time prevent fraudulent claims.

In this case, no one questions that there was “actual physical contact” between the axle-and-wheel assembly and Elchehimi’s vehicle, or that there was a temporal nexus between the assembly’s detachment from the truck and the collision. Nor is there any question of fraud, or doubt that the collision was the unidentified truck’s fault. Yet under the Court’s analysis the Elchehimis, who responsibly purchased UM insurance, are denied coverage for their injuries. Nothing in the statutory language or purpose compels that result.

In reaching its holding today, the Court relies not on any definitions in the UM statute but on the Texas Transportation Code’s definition of “motor vehicle”: a “self-propelled vehicle designed for use on a highway, a trailer or semi-trailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails.”TEX. TRANSP. CODE § 601.002(5).Texas Insurance Code section 1952.101(a), a part of the UM statute, references chapter 601 of the Transportation Code as the chapter that governs the minimum liability limits for automobile insurance and specifies who must carry such insurance for what kinds of vehicles. See, e.g., id. § 601.051. Thus, this definition of “motor vehicle” governs what types of vehicles must be insured and logically only includes intact motor vehicles. In the case of vehicle collisions, however, the distinction between motor vehicles that as a whole cause damage and motor vehicles whose integral parts directly and immediately cause damage is illogical and undermines the purpose behind the UM statute. See Killakey, 574 N.Y.S.2d 927, 580 N.E.2d at 401. Furthermore, the definition of “motor vehicle” in section 601.002(5) of the Transportation Code is expressly applicable only to chapter 601 of the Transportation Code, TEX. TRANSP. CODE § 601.002 (specifying definitions for use “[i]n this chapter”); there is no indication that it is designed to be applied in other contexts. I would decline to apply that definition here, where doing so is contrary to the purpose of the UM statute.

II. Other Jurisdictions

The substantial majority of states with UM statutes that require hit-and-run coverage have considered language identical or similar to our UM statute and determined that coverage exists in situations far more attenuated than that presented here. In these circumstances, we should strive for uniformity as much as possible. See Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 522 (Tex.1995). Eleven such states have statutes similar to ours in that they require “physical contact” or “actual physical contact” with a “motor vehicle,” “vehicle,” or “automobile” to trigger coverage.SeeCAL. INS.CODE § 11580.2(b)(1) (Deering 2007); FLA. STAT. ANN. § 627.736(4)(e)(1) (West 2008); GA.CODE ANN. § 33-7-11(b)(2) (2007); 215 ILL. COMP. STAT. ANN. 5/143a(2)(i) (West 2007); MICH. COMP. LAWS SERV. § 257.1112 (LexisNexis 2008); MISS.CODE ANN. § 83-11-103(c)(v) (2008); NEV.REV.STAT. ANN. § 690B.020(3)(f)(7) (LexisNexis 2007); N.C. GEN. STAT . § 20-279.21(b)(3)(b) (2007); N.Y. INS. LAW § 5217 (Consol.2008); W. VA.CODE ANN. § 33-6-31(e)(iii) (LexisNexis 2007); WIS. STAT. ANN. §§ 632.32(2)(a), (4)(a)(2)(b) (West 2007); see generally David J. Marchitelli, Annotation, Uninsured Motorist Indorsement: Construction and Application of Requirement That There Be “Physical Contact” with Unidentified or Hit-and-Run Vehicle; “Hit-and-Run” Cases, 79 A.L.R.5th 289 (2000). Another five states require either physical contact with the unidentified motor vehicle or, if there was no physical contact, that the insured meet additional evidentiary burdens, such as producing a disinterested eyewitness or proving by clear and convincing evidence that the accident was caused by another vehicle. SeeARIZ.REV.STAT. § 20-259.01(M) (2007); LA.REV.STAT. ANN. § 22:680(1)(d)(i) (2008); S.C.CODE ANN. § 38-77-170(2) (2007); TENN.CODE ANN. § 56-7-1201(e)(1)(B) (2008); WASH. REV.CODE ANN. § 48.22.030(2), (8) (West 2008).

Of these sixteen jurisdictions, many have not had occasion to consider the integral-parts test because their courts have interpreted the requirement of “physical contact” with a “motor vehicle” more liberally than our courts have done. For example, some states require coverage when the insured’s injuries are the result of contact with cargo, e.g., Pham v. Allstate Ins. Co., 206 Cal.App.3d 1193, 254 Cal.Rptr. 152, 155 (Cal.Ct.App.1988), debris propelled by another vehicle, e.g., So. Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 372 (Miss.1987); Progressive Classic Ins. Co. v. Blaud, 212 Ariz. 359, 132 P.3d 298, 300-01 (Ariz.Ct.App.2006); Barfield v. Ins. Co. of N. Am., 59 Tenn.App. 631, 443 S.W.2d 482, 486 (Tenn.Ct.App.1968), or even when there is no contact at all, e.g., Lumbermens Mut., 368 So.2d at 350 (Florida). These courts have generally reasoned that since the “physical contact” with a “motor vehicle” language can be interpreted in a number of ways and the UM statute is remedial, a liberal interpretation favoring coverage should be applied. See, e.g., So. Farm Bureau, 507 So.2d at 371-72;Progressive Classic, 132 P.3d at 300;Pham, 254 Cal.Rptr. at 155;Barfield, 443 S.W.2d at 486. Several of these courts have also noted that requiring contact with an entire vehicle does nothing to further the anti-fraud purpose of the physical contact requirement. See, e.g., So. Farm Bureau, 507 So.2d at 372;Progressive Classic, 132 P.3d at 300.

Seven of the sixteen states with statutes similar to Texas’s have considered whether the requirements of the statute are met when a vehicle part becomes detached from an unidentified vehicle and makes contact with the insured’s vehicle. Two of those states have found “physical contact” with a “motor vehicle” when any vehicle part becomes detached and strikes the insured. Theis, 606 N.W.2d at 163 (Wisconsin); Brooks v. State Farm Mut. Auto. Ins. Co., 855 So.2d 419, 425 (La.Ct.App.2003). Four have adopted the more restrictive integral-parts test. Killakey, 574 N.Y.S.2d 927, 580 N.E.2d at 401 (New York); State Farm Fire & Cas. Co. v. Guest, 203 Ga.App. 711, 417 S.E.2d 419, 422 (Ga.Ct.App.1992); Ill. Nat’l Ins. Co. v. Palmer, 116 Ill.App.3d 1067, 72 Ill.Dec. 454, 452 N.E.2d 707, 707, 709 (Ill.App.Ct.1983); Adams v. Mr. Zajac, L. C.L. Transit Co., 110 Mich.App. 522, 313 N.W.2d 347, 349 (Mich.Ct.App.1981). Only one has expressly rejected it. Davis v. Doe, 285 S.C. 538, 331 S.E.2d 352, 353 (S.C.1985).

Those courts that have either adopted the integral-parts test or determined that physical contact with any vehicle part is sufficient to require coverage have emphasized that the requirement that there be “physical contact” with a “motor vehicle” is designed to prevent fraud by ensuring that another vehicle was involved in the accident. See Theis, 606 N.W.2d at 168;Killakey, 574 N.Y.S.2d 927, 580 N.E.2d at 400;Palmer, 72 Ill.Dec. 454, 452 N.E.2d at 707;Adams, 313 N.W.2d at 348. However, requiring that a motor vehicle as a whole strike the insured’s vehicle to trigger coverage does nothing to further the purpose of preventing fraud and frustrates the overarching remedial purpose of the UM statute, which is designed to compensate responsible motorists for injuries caused by negligent and irresponsible drivers. See Theis, 606 N.W.2d at 168;Guest, 417 S.E.2d at 421;Adams, 313 N.W.2d at 349. As the highest court of New York aptly stated:

The remedy for distinguishing between valid and fraudulent hit-and-run claims should rest on the proof that there was, indeed, an unidentified vehicle and that physical contact with the vehicle caused an accident, not on artificial distinctions between accidents involving a vehicle and those which may involve parts which undeniably come from it.

Killakey, 574 N.Y.S.2d 927, 580 N.E.2d at 401.

All but one of the states to have considered the issue have determined that physical contact with a part or an integral part of a motor vehicle is sufficient to invoke coverage. Although these decisions are not binding on this Court, the weight of their authority is at least instructive. The Court rejects the integral-parts test on the premise that it would be practically unmanageable; however, the fact that so many other jurisdictions have applied the test for decades indicates otherwise.

* * *

Because we are to interpret the UM statute liberally, and because the integral-parts test best furthers the statute’s language and remedial purpose while preserving the anti-fraud objectives of the “actual physical contact” with a “motor vehicle” requirement, I would adopt that test and affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.

In 2005, the Legislature repealed Article 5.06-1(2)(d) as part of the codification of the Texas Insurance Code. The same language now appears in section 1952.104(3) of the Texas Insurance Code. Accordingly, the Court will retroactively apply Section 1952.104(3).See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219-20 (Tex.2002) (retroactive application is constitutional where the change is remedial and procedural and does not affect a vested right).

SeeLA.REV.STAT. ANN. § 22:680(1)(d)(i) (LEXIS through 2007 Sess.) (allowing testimony by a disinterested witness in place of actual physical contact); WIS. STAT. ANN. §§ 632.32(2)(a), .32(4)(a)(2)(b) (LEXIS through 2007 Sess.) (covering “hit-and-run” accidents with unidentified vehicles).

See State Farm Fire & Cas. Co. v. Guest, 203 Ga.App. 711, 417 S.E.2d 419, 422 (Ga.Ct.App.1992); Illinois Nat. Ins. Co. v. Palmer, 116 Ill.App.3d 1067, 72 Ill.Dec. 454, 452 N.E.2d 707, 709 (Ill.App.Ct.1983); Adams v. Mr. Zajac, 110 Mich.App. 522, 313 N.W.2d 347, 349 (Mich.Ct.App.1981); Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 574 N.Y.S.2d 927, 580 N.E.2d 399, 401 (N.Y.1991).

See Davis v. Doe, 285 S.C. 538, 331 S.E.2d 352, 353-54 (S.C.1985).

Elchehimi’s vehicle was covered by Nationwide’s standard Texas automobile insurance policy. That policy included UM coverage, as defined by the Texas Insurance Code. Both parties agree that interpretation of the UM statute governs the scope of coverage under the policy.

Both Nationwide and the Court insinuate that Latham is not good law or is inapplicable because the policy language at issue in Latham did not include the word “actual” and no court has extended the principle in Latham to other fact scenarios. However, our courts of appeals have repeatedly held that Latham applies to the current statute, even though the statute includes the word “actual,” and have affirmed that it is still valid law. E.g., Smith, 2003 Tex.App. LEXIS 5056, at *5; Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 334 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Williams v. Allstate Ins. Co., 849 S.W.2d 859, 860-61 (Tex.App.-Beaumont 1993, no writ). When the Legislature first codified coverage of collisions with unknown motor vehicles in 1977, it included the “actual physical contact” requirement. Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, art. 5.06-1(2)(d), 1977 Tex. Gen. Laws 370, 371. Prior to 1977, the UM statute did not mention unknown motor vehicles whatsoever. See Act of May 16, 1967, 60th Leg., R.S., ch. 203, § 1, art. 5.06-1, 1967 Tex. Gen. Laws 448, 448-49.

Some states require coverage absent any physical contact requirement whatsoever. E.g.,CONN. GEN.STAT. ANN. § 38a-336 (West 2008); OKLA. STAT. ANN. tit. 36, § 3636 (West 2007).

Although the Florida statute requires “physical contact,” the Florida Supreme Court has held that the requirements of the statute are met if the insured can show that his or her injuries were “caused by” the identified vehicle even if there was no physical contact. Lumbermens Mut. Cas. Co. v. Castagna, 368 So.2d 348, 350 (Fla.1979).

The North Carolina statute uses the term “collision” instead of “physical contact,” but the Supreme Court of North Carolina has interpreted the statute to require “physical contact.” Andersen v. Baccus, 335 N.C. 526, 439 S.E.2d 136, 137-38 (N.C.1994).

The Wisconsin statute does not use the term “physical contact,” but the Wisconsin Supreme Court has interpreted the “hit” in “hit-and-run” to require physical contact. Theis v. Midwest Sec. Ins. Co., 232 Wis.2d 749, 606 N.W.2d 162, 165-66 (Wis.2000).

In Theis, it was unclear whether the tractor-trailer part that struck the insured was debris that was propelled by another unidentified vehicle or whether the part detached from and was propelled by the same vehicle. 606 N.W.2d at 163. However, the Supreme Court of Wisconsin did not consider that distinction important. Id. The holding appears to be limited to vehicle parts and inapplicable to other types of road debris that might be propelled into traffic. Id. at 167.

The Supreme Court of Illinois has followed and approved of the reasoning in Palmer. Hartford Accident & Indem. Co. v. LeJeune, 114 Ill.2d 54, 101 Ill.Dec. 876, 499 N.E.2d 464, 466 (Ill.1986).