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Appellate Court Affirms Summary Judgment Against “Virtual Physical Contact” Assertion

November 11, 2013

The First District Appellate Court has affirmed a trial court's dismissal of a case where the plaintiff asserted the legal doctrine of "virtual physical contact" in hopes of triggering insurance coverage.  In this case, the plaintiff, a co-occupant of a commercial delivery vehicle, walked away from the truck while at a stoplight.  As he crossed the street, he was struck and severely injured by another vehicle.  After collecting the insurance coverage limits of the underinsured motorist who struck him, the plaintiff presented an underinsured motorist claim to the insurer of the commercial vehicle. Johnson & Bell filed a complaint for declaratory judgment, and later, a motion for summary judgment, alleging there was no coverage since the plaintiff was not in contact with the insured vehicle.  The plaintiff asserted the legal doctrine of "virtual physical contact" since he had just left the vehicle and intended to return, in hopes of triggering coverage. The defense countered that the plaintiff did not satisfy the commercial auto policy’s definition of an “insured” because he was not in, on, upon, getting into or out of the delivery truck when he was struck by the motorist.  The Circuit Court granted summary judgment in favor of the defense.  Now, the Appellate Court has affirmed the trial court’s dismissal.  Johnson & Bell Shareholder, Gregory D. Conforti, obtained the dismissal of the Circuit Court case, while Shareholder, Garrett L. Boehm, Jr., handled the appeal.

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