Affirmed and Majority and Concurring Opinions filed May 14, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00341-CV

                         CHARLES FRANKS, Appellant
                                          V.

    LIBERTY COUNTY MUTUAL INSURANCE COMPANY, Appellee

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-49231

                            CONCURRING OPINION

      Because this court is bound by Tex. Ins. Code § 1952.104(3), the terms of the
policy, and precedent, I concur in the majority opinion. However, automobile
insurance contracts, such as the one in this case, should contain clear definitions and
exclusion language that will be understood by the average policyholder, thereby
allowing the policyholder to make a truly informed decision about the coverage
purchased.
      The purpose of the uninsured motorist statute is protection of insured
motorists from irresponsible underinsured, uninsured, or unidentified motorists.
Jankowiak v. Allstate Prop. & Cas. Ins. Co., 201 S.W.3d 200, 210 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (citing Stracener v. United Servs. Auto. Ass’n,
777 S.W.2d 378, 382 (Tex. 1989)). In this case, the motorist who caused the accident
was unidentified, and there was no physical contact with appellant’s vehicle. Our
courts have consistently held physical contact between the insured and any
unidentified   vehicle    is   required     for      coverage   to   apply    under   the
uninsured/underinsured provisions of a policy such as the one in this case. Goen v.
Trinity Universal In.Co. of Kansas, Inc., 715 S.W.2d 124, 126 (Tex. Civ. App.—
Texarkana, 1986, no writ); Mayer v. State Farm Mut. Auto Ins. Co. 870 S.W. 2d 623,
625 (Tex. App—Houston [1st Dist.] 1994, reh. overruled). The stated purpose of
requiring actual physical in Tex. Ins. Code § 1952.104(3) is to prevent fraudulent
claims against “phantom cars,” but in this case there is no dispute as to appellant’s
claim that an unidentified driver existed and caused this wreck.

      Policyholders should be aware, when purchasing uninsured/underinsured
coverage, that claims involving an unidentified, but undisputedly negligent driver,
whose vehicle does not make physical contact with the unidentified driver’s vehicle,
may be excluded from coverage, especially when the terms of the policy make it
difficult to ascertain coverage.




                                          /s/       Margaret “Meg” Poissant
                                                    Justice

Panel consists of Justices Christopher, Hassan, and Poissant. (Poissant, J. majority).

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