Blawgletter wrote recently about a survey that puts the Supreme Court of Texas way below the "influence" one would expect from the second most populous — and therefore smartest — state in the Union.  The survey’s ranking methodology also indicates that the Court’s influence declined even further since the "Justice for Sale" days in the 1980s.  Yipes.

True or not true?  We don’t rightly know, but we do know that today we read a decision — from last Friday — that may emblemize why the Court’s recent opinions don’t carry a bunch of persuasive force outside the Lone Star state.

The case involved the question of whether a "drive axle" that detaches from Vehicle A still counts as a "motor vehicle" for purposes of determining whether Vehicle A made "actual physical contact" with Vehicle B.  If the flying axle from Vehicle A does so count, the insurer of Vehicle B has to pay for the damage under its "uninsured motorist" policy.

The Court held that a "drive axle with two tandem wheels" ceased its status as "motor vehicle" when it came loose from an 18-wheeler before sailing across the divider and crashing into the oncoming station wagon of Mohamad Elchehimi.  In so ruling, the Court relied on a non-precedential Texas court of appeals opinion that deemed a loading ramp not a "motor vehicle" after its separation from the rest of a truck.  Nationwide Ins. Co. v. Elchehimi, 06-0106 (Tex. Mar. 28, 2008).

No word on what the Court would have done if the truck disintegrated into several pieces — none of which by itself would qualify as a "motor vehicle" — before striking the other vehicle.

The two-Justice dissent cited and discussed dozens of cases, from Texas and elsewhere, and explained in detail why coverage exists "when the insured is struck by an integral part of another vehicle and there is a temporal continuity between the part’s detachment from the unknown vehicle and collision with the insured."  The "actual physical contact" requirement exists, the dissenters urged, to prevent fraudulent claims — not to cut off coverage for plainly meritorious claims.

We expect that the Elchehimi decision will earn the "followed" designation in Shepard’s from zero of the Court’s sister courts around the nation.  Because a persuasive legal opinion can’t simply string quotes and cites and sentences and paragraphs together and state a conclusion that seems colorable to the majority.  The opinion must also make compelling sense.  It helps if it seems fair.  Elchehimi, in our view, may reach colorability, but it falls painfully short of convincing.  Not to mention of fairness.

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