Julius Caeser Moore (“plaintiff’) appeals from judgment entered, which granted Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company’s (collectively, “Nationwide”) motion to dismiss. We affirm.
I.Background
On 7 March 2007, plaintiff filed a complaint against Nationwide, his automobile insurer, and alleged claims for: (1) breach of contract; (2) unfair and deceptive trade practices; (3) bad faith; and (4) punitive damages. Plaintiff’s complaint asserted: (1) on 28 January 2005, plaintiff “struck a pine tree log that had fallen off a truck and was lying in the middle of the interstate[]” and (2) Nationwide had refused plaintiff’s uninsured motorist claim because “the policy is not applicable as a ‘log’ does not fit the definition of an ‘uninsured motor vehicle.’ ”
On 18 May 2007, Nationwide moved to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 16 July 2007 the trial court heard arguments on Nationwide’s motion to dismiss, granted Nationwide’s motion, and filed its opinion on 22 August 2007. Plaintiff appeals.
II.Issue
Plaintiff argues the trial court erred when it granted Nationwide’s motion to dismiss.
III.Standard of Review
N.C. Gen. Stat. § 1A-1, Rule 12(b) (2007) states, “[i]f, on amotion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . .” *108(Emphasis supplied). In its order filed 22 August 2007, the trial court stated that “[a]fter careful consideration of the briefs and oral arguments of counsel, it appears that the allegations of plaintiff’s Complaint, taken as true, fail to state a claim upon which relief can be granted under any legal theory and that [Nationwide’s] motion should be granted.” Because the trial court considered matters “outside the pleading” when it heard Nationwide’s motion to dismiss, we review the trial court’s grant of Nationwide’s motion to dismiss as the grant of a motion for summary judgment. Id.
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.
A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff’s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.
Once the party seeking summary judgment makes the required showing, the burden shifts to the-nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.
We review an order allowing summary judgment de novo. If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.
Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).
IV. Motion to Dismiss
Plaintiff argues the trial court erroneously granted Nationwide’s motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. We disagree.
*109N.C. Gen. Stat. § 20-279.21(b)(3)(b) (2007) states:
Where the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as the result of collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, the insured may institute an action directly against the insurer ....
“Our courts have interpreted this statute to require physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver for the uninsured motorist provisions of the statute to apply.” McNeil v. Hartford Accident and Indemnity Co., 84 N.C. App. 438, 442, 352 S.E.2d 915, 917 (1987) (citing Hendricks v. Guaranty Co., 5 N.C. App. 181, 167 S.E.2d 876, cert. denied, 275 N.C. 594 (1969) and East v. Insurance Co., 18 N.C. App. 452, 197 S.E.2d 225 (1973)). Forty years ago, this Court stated, “[w]e are compelled to interpret the statute[] as written, leaving to the General Assembly the responsibility of writing and amending statutes.” Hendricks, 5 N.C. App. at 184, 167 S.E.2d at 878.
In Andersen v. Baccus, our Supreme Court affirmed this Court’s ruling and held an uninsured carrier was not liable where the automobile accident was caused by a third automobile which had contact with neither the decedent’s automobile nor the defendant’s automobile. 335 N.C. 526, 529, 439 S.E.2d 136, 138 (1994). In affirming this Court’s ruling on this issue, our Supreme Court specifically approved this Court’s analysis of N.C. Gen. Stat. § 20-279.21:
Our inteipretation of [N.C. Gen. Stat. §] 20-279.21 is further supported by the fact that the legislature has undertaken to amend the uninsured motorist statute subsequent to this Court’s first interpreting it as requiring physical contact between the insured and the hit-and-run driver. To date, it has not chosen to amend the statute to indicate that [such] physical contact is not required. When the legislature acts, it is always presumed that it acts with full knowledge of prior and existing law; and where it chooses not to amend a statutory provision that has been interpreted in a specific, consistent way by our courts, we may assume that it is satisfied with that interpretation. Thus, in consideration of the time-tested prior rulings of this Court, we are constrained to conclude that any shift away from the ‘physical contact’ requirement must derive not from this Court, but from legislative action, or *110action by our Supreme Court, which is the final arbiter for interpreting the statutes of this state.
Id. at 529, 439 S.E.2d at 138 (citation omitted) (quoting Andersen v. Baccus, 109 N.C. App. 16, 22, 426 S.E.2d 105, 108-09 (1993), aff’d in part and rev’d in part, 335 N.C. 526, 439 S.E.2d 136 (1994)). Our Supreme Court also stated it would adhere “to the principle of stare decisis . . . [and] decline to change existing judicial interpretation of the uninsured motorist statute, especially in light of the legislature’s recent revision.” Id. (citing N.C. Gen. Stat. § 20-279.21 (1993)).
Here, plaintiff’s complaint alleged he had “struck a pine tree log that had fallen off a truck and was lying in the middle of the interstate.” No evidence shows from what vehicle, truck or trailer, if any, the pine tree log fell from, when it fell, or how long it had been lying on the interstate prior to impact. Based on our Supreme Court’s reasoning in Andersen, plaintiff’s complaint fails to satisfy the physical contact requirement. 335 N.C. at 529, 439 S.E.2d at 138. Because the “essential element of [physical contact] is non-existent[,]” the trial court properly granted Nationwide’s motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661. This assignment of error is overruled.
The dissent’s reliance on McNeil to' extend the physical contact requirement to cover these facts is a wholly unwarranted extension, when our Supreme Court specifically rejected modification of the plain language of N.C. Gen. Stat. § 20-279.21 in Andersen. McNeil, 84 N.C. App. at 438, 352 S.E.2d at 915; Andersen, 335 N.C. at 529, 439 S.E.2d at 138. Furthermore, the dissent’s reliance on the United States District Court for the Eastern District of North Carolina’s holding in Geico Ins. Co. v. Larson is misplaced as that opinion is not binding precedent or authority and is contrary to our Supreme Court’s interpretation of N.C. Gen. Stat. § 20-279.21 in Anderson. Geico, 542 F. Supp. 2d 441 (E.D.N.C. 2008); Anderson, 335 N.C. at 529, 439 S.E.2d at 138. .
V. Conclusion
Plaintiff’s complaint failed to allege physical contact between plaintiff’s automobile and the vehicle that allegedly carried the pine tree log struck by plaintiff. Based on our Supreme Court’s reasoning in Andersen, and this Court’s longstanding precedent in Hendricks plaintiff’s complaint fails to state a claim upon which relief may be granted. Anderson, 335 N.C. at 529, 439 S.E.2d at 138; Hendricks, 5 *111N.C. App. at 784, 167 S.E.2d at 878. The trial court properly granted Nationwide’s motion to dismiss. The order appealed from is affirmed.
Affirmed.
Judge STROUD concurs. Judge McCULLOUGH dissents by separate opinion.