concurring.
I agree with Justice Wilson’s reasoning and his result, but I would say more about the statutory requirement of “actual physical contact.”
I. Was the unknown vehicle a “hit and run” vehicle within definition 2?
Farmers says no because there was no “actual physical contact” between the unknown vehicle and the insured, as required by Tex. Ins.Code Ann. art. 5.06-1 (2)(d) (Vernon Supp.1999). The policy does not use the term “actual physical contact” or “physical contact.” It grants' coverage if the unknown vehicle “hits” the insured. The policy language is therefore arguably more favorable to the insured than the statutory language, but this Court has repeatedly held that in *335such a case, the policy language should be given the same meaning as the Insurance Code. Le v. Farmers Tex. County Mut. Ins. Co., 936 S.W.2d 317, 322 (Tex.App.—Houston [1st Dist.] 1996, writ denied); Mayer v. State Farm Mut. Auto. Ins. Co., 870 S.W.2d 623, 625 (Tex.App.—Houston [1st Dist.] 1994, no writ). Consequently, Deville had to prove there was “actual physical contact.”
When the uninsured motorist statute was first enacted in 1967, it had no physical contact requirement. After several “phantom car” cases arose (one-car accidents allegedly caused by near misses with unknown vehicles), the legislature adopted a bright-line test to prevent fraudulent claims. The statute was amended and, effective August 29, 1977, provided:
The forms promulgated under the authority of this section shall require that in order for the insured to recover under the uninsured motorist coverages where the owner or operator of any motor vehicle which causes bodily injury ... is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.
Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, art. 5.06 — l(2)(d), 1977 Tex. Gen. Laws 370, 371 (Tex. Ins.Code AnN. art. 5.06— l(2)(d), since amended) (emphasis added). The 1977 amendment was intended to prevent fraudulent claims that unknown “phantom cars” had caused insureds to have a one-car accident. Republic Ins. Co. v. Stoker, 867 S.W.2d 74, 78 (Tex.App.—El Paso 1993), rev’d on other grounds, 903 S.W.2d 338 (Tex.1995).
Deville relies on Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref'd n.r.e.), which held that coverage existed where the unknown car struck another car, knocking it into the insured’s car, even though the unknown car never actually touched the insured’s car. I consider La-tham to be distinguishable in two respects. Latham interpreted an insurance contract that required “physical contact,” not a statute. Id. at 657. That matters because a statute is entitled to more deference from us than a mere insurance policy. Moreover, Latham predated the 1977 amendment that added the “actual physical contact” requirement. Thus, Latham is questionable authority for allowing recovery without “actual” physical contact. Although the facts in La-tham have been discussed after 1977 as an exception to the requirement of “actual physical contact,” that has generally occurred in cases that distinguished Latham and denied coverage, e.g., Goen v. Trinity Universal Ins. Co., 715 S.W.2d 124, 125 (Tex.App.—Texarkana 1986, no writ).
Deville also relies on Republic Insurance Co. v. Stoker, 867 S.W.2d 74 (Tex.App.—El Paso 1993), rev’d on other grounds, 903 S.W.2d 338 (Tex.1995). The Stoker court held there was no coverage because there was not “even indirect physical contact” between the insured’s car and furniture that had fallen from an unknown truck. Id. at 77-78. While Stoker’s discussion suggests that contact with the furniture could constitute contact between the vehicles, it is dicta in that regard because Stoker’s car never struck the furniture.
Our legislature has written a clear statute, and we must enforce it by requiring “actual physical contact.” Deville cites cases from many other states holding that indirect contact met their statutory requirement of “physical contact.” None of them, however, found coverage where a statute or contract required “actual physical contact.” The absence of the word “actual” was considered important by several courts that held for plaintiffs and stated that if the legislature or the insurer had wanted to limit coverage to actual physical contact, it should have done so. Johnson v. State Farm Mut. Auto. Ins. Co., 70 Wash.2d 587, 424 P.2d 648, 650 (1967) (“Had appellant intended the provision to apply only where there is actual and immediate, as opposed to indirect, physical contact between the hit-and-run vehicle and the ... insured, it should have so provided in unmistakably clear language.”). Other courts have relied on this language with approval, some while allowing recovery and some while denying it. Anderson v. State Farm Mut. Auto. Ins. Co., 133 Ariz. 483, 652 P.2d 556, 558., rev’d, 652 P.2d 537 (Ariz.1982) (interme*336diate court denied recovery); Allied Fidelity Ins. Co. v. Lamb, 361 N.E.2d 174, 179 (Ind.Ct.App.1977) (disallowing recovery); Barfield v. Insurance Co. of N. Am., 59 Tenn. App. 631, 443 S.W.2d 482, 486 (1968) (allowing recovery). In my opinion, the Texas Legislature used- unmistakably clear language in article 5.06-l(2)(d), more so than in any of the many cases appellant cites or that I have found. See Illinois Nat’l Ins. Co. v. Palmer, 116 Ill.App.3d 1067, 72 Ill.Dec. 454, 452 N.E.2d 707 (1983) (object propelled through window of insured vehicle); Berry v. State Farm Mut. Auto. Ins. Co., 219 Mich. App. 340, 556 N.W.2d 207 (1996) (car collided with scrap metal that had fallen from trailer); Hill v. Citizens Ins. Co. of Am., 157 Mich. App. 383, 403 N.W.2d 147, 152 (1986) (rock came through windshield as another car passed in opposite direction; held: “The overwhelming majority of jurisdictions hold that the ‘physical contact’ provision ... may be satisfied even though there is no direct contact between the disappearing vehicle and claimant or claimant’s vehicle.”); Adams v. Zajac, 110 Mich.App. 522, 313 N.W.2d 347, 349 (1981) (contact with tire left in road; held: “Whether the part is still attached or comes to rest after being detached from the vehicle makes little difference in princi-ple_”); Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 574 N.Y.S.2d 927, 580 N.E.2d 399 (1991); see also Pham v. Allstate Ins. Co., 206 Cal.App.3d 1193, 254 Cal.Rptr. 152 (1988) (physical contact requirement satisfied where rock fell from unidentified dump truck and struck insured’s windshield); Hartford Accident & Indem. Co. v. LeJeune, 114 Ill.2d 54, 101 Ill.Dec. 876, 499 N.E.2d 464 (1986); Pinkney v. Progressive Specialty Ins. Co., 597 So.2d 1168 (La.Ct.App.1992) (physical contact occurred when log fell off unidentified truck and struck insured’s vehicle); Fore v. Traveler’s Ins. Co., 528 So.2d 1091 (1988) (physical contact occurs where a load of debris is thrown from track into insured’s windshield); Estate of Baxter v. Grange Mut. Cas. Co., 73 Ohio App.3d 512, 597 N.E.2d 1157 (1992) (physical contact where 3-foot piece of metal crashed through windshield and killed driver). See generally A.S. Klein, Annotation, Uninsured Motorist Indorsement: Validity and Construction of Requirement that There be “Physical Contact” with Unidentified or Hit-and-Run Vehicle, 25 A.L.R.3d 1299 (1969). These cases are highly persuasive to me, and they represent the great weight of authority. Nonetheless, I think they do not control this case because of our particular statutory language, which we impute into the policy. Le, 936 S.W.2d at 322; Mayer, 870 S.W.2d at 624.
But for our requirement of “actual” physical contact, I would hold as the courts above have held. Most of the majority’s cases do not require a holding of no coverage because their facts are so different from this case. In all but one, the plaintiff had no contact at all — direct or indirect — with either the unknown vehicle or even with its lost load. Le, 936 S.W.2d at 318-19 (plaintiff hit by gunfire in drive-by shooting); Mayer, 870 S.W.2d at 624 (motorcycle swerved to avoid truck); Guzman v. Allstate Ins. Co., 802 S.W.2d 877, 878 (Tex.App.—Eastland 1991, no writ) (driver blinded by oncoming lights); Stoker, 867 S.W.2d at 77-78 (furniture fell off truck, but plaintiff never hit it); Goen, 715 S.W.2d at 125 (hit-and-run vehicle struck neither of two cars that collided while avoiding him). However, Williams v. Allstate, 849 S.W.2d 859 (Tex.App.—Beaumont 1993, no writ), is not distinguishable. Based on Williams and on our apparently unique statute requiring “actual” physical contact, I agree that Deville cannot prevail under the second definition of “uninsured motor vehicle.”
This is a harsh result. There is no question of fraud here. This claim is not fraudulent. Thus, the purpose of the statute, to prevent fraud, is not being served by applying it in this case. The Williams court recognized there would be such cases, and this is surely one. 849 S.W.2d at 861. It is the legislature’s duty to make the law and our duty to interpret it. We cannot interpret a clear statute to mean the opposite of what it plainly says. Doing so would be seizing for ourselves power granted by our Constitution to the people’s representatives.
The legislature’s bright-line rule has the virtue of all bright-line rules — it is easy to apply and it serves the intended purpose. Unfortunately, it also has the weakness of all bright-line rules — it sweeps so broadly that it *337creates harsh results that were probably not intended. I, for one, cannot believe the legislature intended in a case like this — where there is no actual physical contact but also no fraud — that a person who paid good money for this coverage should go uncompensated. Still, we cannot nullify the statute just because we consider it imperfect.
I respectfully recommend that the legislature consider amending article 5.06-l(2)(d) to delete the word “actual” and thus allow Texas courts, like those elsewhere, to find “physical contact” through indirect physical contact in cases where the facts show no fraud has occurred.