dissenting.
I respectfully dissent. Since this is a summary judgment case, the majority is holding there are no genuine issues of material fact to be presented to a jury and Allstate is entitled to judgment as a matter of law. However, the majority espouses both an actual physical contact requirement under the statute and an indirect contact rule under case law. While they are undoubtedly correct under the strict actual physical contact analysis; if they still recognize the indirect contact rule1, there is, at least, a fact question as to whether there was indirect contact.
I am inclined to take the majority’s invitation “to liberally tamper with the present state of the law” and go even further by holding the facts of the present case meet the indirect contact rule as a matter of law. The load obviously had physical contact with the uninsured vehicle. The load then had contact with appellant’s vehicle. This satisfies the indirect contact rule. Had the load dropped from the uninsured truck and appellant swerved to avoid the load, thus avoiding contact, then those facts would be more akin to Goen v. Trinity Universal Ins. Co., 715 S.W.2d 124 (Tex.App.—Texarkana 1986, no writ) and arguably the indirect contact rule would not apply. However, in that event, there would still be a fact issue for the jury.
I would reverse the summary judgment and remand for a trial on the merits. I dissent to the affirmance.
. They are, of course, free to adopt only the strict physical contact rule and not follow the rule of Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex.App. — Houston [1st Dist.] 1972, writ refd n.r.e.); yet they choose not to do so.