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  "name": "JAMES W. PROUSE AND CAROL D. PROUSE, Plaintiffs v. BITUMINOUS CASUALTY CORPORATION AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants",
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    "parties": [
      "JAMES W. PROUSE AND CAROL D. PROUSE, Plaintiffs v. BITUMINOUS CASUALTY CORPORATION AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants"
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    "opinions": [
      {
        "text": "ERVIN, Judge.\nPlaintiffs James W. Prouse and Carol D. Prouse appeal from orders granting dismissal motions filed by Defendants Bituminous Casualty Corporation and State Farm Mutual Automobile Insurance Company. On appeal, Plaintiffs contend that their complaint did, in fact, state a claim for which relief could be granted. After careful consideration of Plaintiffs\u2019 challenge to the trial court\u2019s orders in light of the record and the applicable law, we conclude that the trial court\u2019s orders should be affirmed.\nI. Factual Background\nOn 27 May 2011, Plaintiffs filed a complaint alleging that, on or about 12 June 2008, Mr. Prouse was a passenger in a truck that was owned by his employer and being operated by a co-worker when the truck was \u201cstruck by a moving vehicle tire, which fell from a moving vehicle, . . . causing] [Mr. Prouse\u2019s co-worker] to lose control of the vehicle [and] . . . the vehicle to overturn.\u201d As a result of the accident, Plaintiffs alleged that (1) Mr. Prouse suffered injuries to his leg and knee; (2) Mr. Prouse suffered a loss of earnings and earning capacity; and (3) Mrs. Prouse suffered a loss of consortium. According to Plaintiffs, Mr. Prouse was insured under a policy sold to his employer by Defendant Bituminous Casualty and a policy sold to him by Defendant State Farm, both of which provided liability insurance, uninsured motorist coverage and underinsured motorist coverage. In light of their assertion that the accident in which Mr. Prouse was injured was a \u201chit and run accident\u201d as defined in N.C. Gen. Stat. \u00a7 20-279.21(b)(3) and the Bituminous Casualty and State Farm policies, Plaintiffs claimed that they were entitled to recover damages from Defendants in an amount in excess of $10,000.00.\nOn 5 July 2011, Bituminous Casualty filed a motion to dismiss Plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) based upon the language of N.C. Gen. Stat. \u00a7 20-279.21 and this Court\u2019s decision in Moore v. Nationwide Mut. Ins. Co., 191 N.C. App. 106, 664 S.E.2d 326, aff\u2019d, 362 N.C. 673, 669 S.E.2d 321 (2008). On 13 July 2011, State Farm filed a motion to dismiss Plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) on the basis of the same logic upon which Bituminous Casualty relied. These dismissal motions came on for hearing before the trial court at the 31 October 2011 civil session of Stanly County Superior Court. On 2 November 2011, the trial court entered orders granting Defendants\u2019 motions and concluding that all claims asserted in Plaintiffs\u2019 complaint should be dismissed with prejudice. Plaintiffs noted an appeal to this Court from the trial court\u2019s orders.\nII. Legal Analysis\nOn appeal, Plaintiffs argue that the trial court erred by granting Defendants\u2019 dismissal motions pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) on the grounds that their complaint did, in fact, state a claim for relief pursuant to N.C. Gen. Stat. \u00a7\u00a7 279.21(b)(3) and 20-166. More specifically, Plaintiffs contend that N.C. Gen. Stat. \u00a7 279.21(b)(3) should be \u201cnarrowly limited to the extent necessary to prevent fraud\u201d and that the present case is distinguishable from Moore given that Plaintiffs\u2019 complaint \u201cset[] out a different and recoverable cause of action based upon cargo or equipment on a moving [hit-and-run] vehicle [which] in a continuous act f[ell] from the vehicle striking the . . . vehicle [in which Mr. Prouse was traveling].\u201d Plaintiffs\u2019 arguments lack merit.\nA. Standard of Review\n\u201c \u2018On a motion to dismiss pursuant to [N.C. Gen. Stat. \u00a7 1A-1,] Rule 12(b)(6) . . . the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.\u2019 \u201d Stunzi v. Medlin Motors, Inc.,_N.C. App._,_, 714 S.E.2d 770, 773 (2011) (quoting Nucor Corp. v. Prudential Equity Group, LLC, 189 N.C. App. 731, 735, 659 S.E.2d 483, 486 (2008)). A dismissal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) is appropriate when: \u201c(1) the complaint on its face reveals that no law supports the plaintiffs claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiffs claim.\u201d Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)). This Court reviews a trial court\u2019s ruling on a motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) de novo. Stunzi,_N.C. App. at_, 714 S.E.2d at 773.\nB. Uninsured Motorist Coverage\nN.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b), provides, in pertinent part, that:\nWhere the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as the result of a 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 ....\n\u201c \u2018Our 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.\u2019 \u201d Moore, 191 N.C. App. at 109, 664 S.E.2d at 328 (quoting McNeil v. Hartford Accident and Indemnity Co., 84 N.C. App. 438, 442, 352 S.E.2d 915, 917 (1987)). After carefully reviewing the record and the parties\u2019 briefs, we conclude that our decision in Moore is, as the trial court concluded, controlling in this case, so that Plaintiffs\u2019 complaint was properly dismissed.\nIn Moore, the plaintiff filed a complaint against his automobile insurance carrier alleging breach of contract, unfair and deceptive trade practices, bad faith, and punitive damages. Id. at 107, 664 S.E.2d at 327. In his complaint, the plaintiff alleged that the vehicle that he was driving had hit a log that had fallen off a truck and was lying in the middle of the road and that the defendant had unlawfully refused to honor his claim against his uninsured motorist carrier on the basis that a log did not \u201cfit the definition of an \u2018uninsured motor vehicle.\u2019 \u201d Id. The trial court dismissed the plaintiff\u2019s complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6). Id. On appeal, this Court, acting in reliance on Andersen v. Bacchus, 335 N.C. 526, 529, 439 S.E.2d 136, 138 (1994) (affirming the Court of Appeal\u2019s interpretation of N.C. Gen. Stat. \u00a7 20-279.21 as requiring \u201cphysical contact between the insured and the hit-and-run driver\u201d), concluded that the \u201cplaintiff\u2019s complaint fail[ed] to satisfy the physical contact requirement\u201d set out in N.C. Gen. Stat. \u00a7 20-279.21. Id. at 110, 664 S.E.2d at 329. As a result, we affirmed the trial court\u2019s decision to dismiss the plaintiff\u2019s complaint. Id. at 110-11, 664 S.E.2d at 329.\nThe facts at issue in this case are indistinguishable on any material basis from those before us in Moore. As in Moore, Plaintiffs\u2019 complaint alleged that damages resulted from a collision between a vehicle in which Mr. Prouse was riding and an object that had fallen from an unidentified vehicle rather than from \u201cphysical contact between the [vehicle in which Mr. Prouse was a passenger] and the vehicle that allegedly carried the [object] struck by the [truck].\u201d 191 N.C. App. at 110, 664 S.E.2d at 329. Although Plaintiffs attempt to distinguish Moore on the grounds that the object that struck the vehicle in which Mr. Prouse was riding fell from a \u201chit-and-run\u201d vehicle and struck the vehicle in which Mr. Prouse was riding in one continuous motion rather than falling from the \u201chit-and-run\u201d vehicle and lying in the roadway for some time before the collision, we do not believe that the distinction upon which Plaintiffs rely is a material one. Unfortunately for Plaintiffs, the Supreme Court has expressly \u201c \u2018decline [d] to change [the] existing judicial interpretation of the uninsured motorist statute ...,\u2019\u201d Id. (quoting Andersen, 335 N.C. at 529, 439 S.E.2d at 138), which requires physical contact between the insured and the hit-and-run driver. Such contact is not alleged to have occurred here. In such circumstances, we are required to adhere \u201c \u2018to the principle of stare decisis[,}\u2019 \u201d Id. (quoting Andersen, 335 N.C. at 529, 439 S.E.2d at 138), and lack the authority to revisit the previous decisions of this Court and the Supreme Court construing N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b).As a result, given that Plaintiffs\u2019 complaint \u201con its face reveals that no law supports [their] claim,\u201d Wood, 355 N.C. at 166, 558 S.E.2d at 494, the trial court properly granted Defendants\u2019 dismissal motions.\nAccording to our dissenting colleague, the present case is distinguishable from Moore in a number of ways, so that we are not bound by its holding. As an initial matter, our dissenting colleague points out that, in Moore, we treated \u201cthe trial court\u2019s grant of the defendant\u2019s Rule 12(b)(6) motion to dismiss as the grant of a motion for summary judgment\u201d because the trial court considered matters outside the pleadings. On the other hand, our dissenting colleague points out that our review of the trial court\u2019s decision to dismiss Plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) involves \u201c \u2018test[ing] the law of the claim, not the facts which support it.\u2019\u201d Okuma Am. Corp. v. Bowers, 181 N.C. App. 85, 88, 638 S.E.2d 617, 619 (2007) (quoting White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979)). Although the standard under which orders granting or denying summary judgment motions and the standard under which orders granting or denying dismissal motions are reviewed are not the same and although the existence of differing standards of review might make a difference in some cases depending upon the state of the record, the essential difference between the manner in which the two types of issues are reviewed on appeal stems from the scope of the factual information that a reviewing court is entitled to consider rather than the manner in which the applicable law is applied to the relevant facts. Ladd v. Estate of Kellenberger, 314 N.C. 477, 481, 334 S.E.2d 751, 755 (1985) (stating that the dismissal of a complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) is appropriate when \u201cthe face of the complaint [shows] an insurmountable bar to appellants\u2019 recovery on any . . . theory\u201d); N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (stating that summary judgment is appropriate if \u201cthe 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 judgment as a matter of law\u201d). Put simply, the fundamental purpose of a summary judgment motion, as compared to a dismissal motion lodged pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), is to allow a litigant to \u201ctest\u201d the extent to which the allegations in which a particular claim has been couched have adequate evidentiary support. Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972) (stating that \u201cthe real purpose of summary judgment is to go beyond or pierce the pleadings and determine whether there is a genuine issue of material fact\u201d (citations omitted)). Given that Moore conditions the successful maintenance of a direct claim against an uninsured motorist carrier pursuant to N.C. Gen. Stat. \u00a7 20-279.21 upon a showing that physical contact occurred between the insured and the vehicle operated by the hit-and-run driver, Moore, 191 N.C. App. at 110, 664 S.E.2d at 329, and given that the allegations of Plaintiffs\u2019 complaint, when considered in the light most favorable to Plaintiffs, show that no physical contact between the vehicles occupied by Plaintiff and the uninsured driver occurred, the face of Plaintiffs\u2019 complaint reveals the presence of an insurmountable bar to their requested relief, rendering Plaintiff\u2019s complaint subject to dismissal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6). Thus, the fact that Moore involved review of an order granting summary judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56 instead of an order dismissing a complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) is not relevant to the proper resolution of this case.\nSecondly, our dissenting colleague \u00e1rgues that this case and Moore are distinguishable because the \u201cpine tree log\u201d in Moore was a \u201cnatural object\u201d and because the contact between the log and the plaintiff\u2019s vehicle did not implicate the involvement of another vehicle as required by N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b). We do not read Moore as implying that the extent to which N.C. Gen. Stat. \u00a7 20-279.21 authorizes a direct claim against an uninsured motorist carrier hinges upon whether a \u201cnatural object\u201d is left in the roadway as compared to whether such an object fell from a moving vehicle. When taken in context, the statement upon which our dissenting colleague relies simply indicates that the plaintiff had failed to prove that the physical contact between two vehicles required for the successful maintenance of a direct action against an uninsured motorist carrier under Andersen had occurred. Moore, 191 N.C. App. at 110, 664 S.E.2d at 329. As a result, the fact that Moore refers to the plaintiff\u2019s failure to \u201cshow from what vehicle, truck, or trailer, if any, the pine tree log fell [], when it fell, or how long it had been lying on the interstate prior to impact,\u201d Id., does not tend to show that the absence of a requirement that a litigant seeking to maintain a direct action against an uninsured motorist carrier pursuant to N.C. Gen. Stat. \u00a7 20-279.21 prove physical contact between his own vehicle and that operated by another driver.\nThird, our dissenting colleague argues that, properly understood, the decisions of the Supreme Court and this Court provide that, in order to maintain a viable claim against an uninsured motorist carrier pursuant to N.C. Gen. Stat. \u00a7 20-279.21, all that must be shown is that the plaintiff\u2019s injury \u201cimplicate the involvement of another vehicle\u201d and that the Supreme Court did not, in affirming our decision in Moore, \u201cexpress[ly] reject[] the rationale espoused by the dissenting judge\u201d in Moore. In view of the Supreme Court\u2019s express adoption of a requirement that there be \u201cphysical contact between the insured and the hit-and-run driver\u201d in Andersen and the fact that the Supreme Court affirmed our opinion in Moore, which expressly rejected the approach adopted in the dissenting opinion upon which our dissenting colleague in this case relies, we are unable to conclude that existing precedent leaves open the possibility of holding that the \u201cphysical contact\u201d requirement of N.C. Gen. Stat. \u00a7 20-279.21 has been satisfied as long as another vehicle is \u201cimplicated\u201d or \u201cinvolved\u201d in the harm that the insured sustained. Thus, we simply do not believe that the prior decisions of the Supreme Court and this Court permit the adoption of the approach espoused by our dissenting colleague and the dissenting judge in Moore.\nFinally, our dissenting colleague contends that McNeil, 84 N.C. App. at 442, 352 S.E.2d at 917 (holding that the \u201cphysical contact\u201d needed to support a direct claim against an uninsured motorist carrier pursuant to N.C. Gen. Stat. \u00a7 20-279.21 existed \u201cwhere the physical contact ar[ose] between the hit-and-run vehicle and plaintiff\u2019s vehicle through intermediate vehicles involved in an unbroken \u2018chain collision\u2019 which involve[d] the hit-and-run vehicle\u201d), and Geico Ins. Co. v. Larson, 542 F. Supp. 2d 441, 447-48 (E.D.N.C. 2008) (utilizing the \u201cchain collision\u201d theory enunciated in McNeil in determining that an uninsured motorist carrier was not entitled to summary judgment based upon an alleged failure to satisfy the \u201cphysical contact\u201d requirement set forth in N.C. Gen. Stat. \u00a7 20-279.21 in a case in which a rock fell from the hit-and-run vehicle and struck the insured\u2019s vehicle), support his determination that Plaintiffs had alleged facts that satisfied the \u201cphysical contact\u201d requirement under a \u201cchain collision\u201d theory. However, the decisions upon which our dissenting colleague relies undergirded the position that was adopted by the dissenting judge and that was explicitly rejected by the Moore majority, which stated that:\n[t]he dissent\u2019s 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. \u00a7 20-279.21 in Andersen. Furthermore, the dissent\u2019s reliance on the United States District Court for the Eastern District of North Carolina\u2019s 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\u2019s interpretation of N.C. Gen. Stat. \u00a7 20-279.21 in Andersen.\n191 N.C. App. at 110, 664 S.E.2d at 329 (citations omitted). As a result, given that the approach adopted by our dissenting colleague in reliance upon McNeil and Geico was expressly rejected by this Court in Moore and given that our decision in Moore was affirmed by the Supreme Court, we conclude that the final argument advanced by our dissenting colleague lacks merit and that Moore does, in fact, control the outcome in the present case.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that the trial court correctly determined that Plaintiffs\u2019 complaint failed to state a claim for which relief could be granted. As a result, the trial court\u2019s orders should be, and hereby are, affirmed.\nAFFIRMED.\nJUDGE STROUD concurs.\nJUDGE ROBERT C. HUNTER dissents with a separate opinion.\n. As will be discussed in more detail below, the Court in Moore actually held that the defendant\u2019s dismissal motion should have been treated as a motion for summary judgment, so that the effect of our decision in Moore was to hold that the evidentiary forecast submitted by the parties did not suffice to support the plaintiff\u2019s claim against the defendant in reliance upon N.C. Gen. Stat. \u00a7 20-279.21.\n. Although Plaintiffs advocate the adoption of the rationale espoused by the dissenting judge in Moore, we believe that the approach adopted in that separate opinion was rejected by the Supreme Court when it upheld our decision in that case. 362 N.C. 673, 669 S.E.2d 321. In addition, we find Plaintiffs\u2019 reliance on numerous decisions from other jurisdictions adopting a \u201cfraud-based\u201d reading of similar statutory language unpersuasive given that this Court and the Supreme Court have adopted a different construction of the relevant statutory language.\n. Although our dissenting colleague appears to believe that the issues before the Court in Moore should have been evaluated under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) rather than under N.C. Gen. Stat. \u00a7 1A-1, Rule 56, the Moore Court did, as our dissenting colleague acknowledges, decide Moore in a summary judgment, rather than a pleadings-based, context.\n. A careful review of the decisions upon which our dissenting colleague relies in support of his contention that a per curiam affirmance of one of our decisions by the Supreme Court does not amount to an affirmance of the reasoning adopted in our opinion reveals that there was no majority opinion in Collins v. Davis, 68 N.C. App. 588, 315 S.E.2d 759 (1984), and that State v. Summers, 284 N.C. 361, 365, 200 S.E.2d 808, 811 (1973), does not address the impact of a per curiam affirmance of our decision by the Supreme Court.\n. Even if our dissenting colleague is correct in asserting, like Plaintiffs, that the Supreme Court did not expressly reject the approach adopted by the dissenting judge in Moore, a proposition with which we do not agree, we are still bound by our own decision in Moore, which recognizes that N.C. Gen. Stat. \u00a7 20-279.21 requires direct or indirect physical contact between the vehicles driven by the insured and the vehicle driven by the hit-and-run driver (as compared to contact between the insured vehicle and some object that falls from or was thrown off of the vehicle driven by the hit-and-run driver). In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that \u201ca panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\u201d).",
        "type": "majority",
        "author": "ERVIN, Judge."
      },
      {
        "text": "HUNTER, Robert C., Judge,\ndissenting.\nI conclude the case on which the majority relies, Moore v. Nationwide Mut. Ins. Co., 191 N.C. App. 106, 664 S.E.2d 326, aff\u2019d per curiam, 362 N.C. 673, 669 S.E.2d 321 (2008), is distinguishable from this case, and thus, I respectfully dissent.\nThe underlying complaint alleged that in June 2008 plaintiff James W. Prouse was a passenger in his employer\u2019s vehicle traveling on Interstate 485 when the vehicle was struck by a moving vehicle tire that had fallen from another moving vehicle. The collision caused the driver of the vehicle in which Mr. Prouse was riding to lose control and overturn. Mr. Prouse suffered permanent bodily injuries and, with his wife (collectively \u201cplaintiffs\u201d), filed the underlying suit against his employer\u2019s insurer, Bituminous Casualty Corporation, and his personal automobile insurer, State Farm Mutual Automobile Insurance Company (collectively \u201cdefendants\u201d). Plaintiffs sought recovery for bodily injuries and loss of consortium, which they alleged were covered by the uninsured motorist provisions of the insurance policies issued by defendants. Defendants filed separate motions to dismiss plaintiffs\u2019 complaint pursuant to North Carolina Rule of Civil Procedure 12(b)(6); defendants argued plaintiffs\u2019 claims were barred by N.C. Gen. Stat. \u00a7 20-279.21 and this Court\u2019s holding in Moore, 191 N.C. App. at 110, 664 S.E.2d at 329. The trial court granted defendants\u2019 motions and dismissed plaintiffs\u2019 complaint.\nI agree with the majority\u2019s statement of our standard of review of the trial court\u2019s grant of defendants\u2019 Rule 12(b)(6) motions to dismiss. In our review, we must determine \u201cwhether, as a matter of law, the allegations of the complaint are sufficient to state a claim upon which relief can be granted under some legal theory.\u201d Okuma Am. Corp. v. Bowers, 181 N.C. App. 85, 88, 638 S.E.2d 617, 619 (2007). In so doing, we \u201caccept as true the well-pleaded factual allegations of the complaint and review the case de novo . ...\u201d Id. However, in light of this standard of review, I conclude the majority\u2019s and defendants\u2019 reliance on Moore is misplaced.\nIn Moore, this Court concluded that the trial court \u201cconsidered matters \u2018outside the pleading\u2019 \u201d when it heard the defendant\u2019s Rule 12(b)(6) motion to dismiss. 191 N.C. App. at 108, 664 S.E.2d at 327 (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2007)). Accordingly, we reviewed the trial court\u2019s grant of the defendant\u2019s Rule 12(b)(6) motion to dismiss as the grant of a motion for summary judgment. 191 N.C. App. at 108, 664 S.E.2d at 327; see Stanback v. Stanback, 297 N.C. 181, 205, 254 S.E.2d 611, 627 (1979) (\u201cA Rule 12(b)(6) motion to dismiss for failure to state a claim is indeed converted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court.\u201d), disapproved of on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Thus, the defendant in Moore was required to show \u201c \u2018that there [was] no genuine issue as to any material fact and that any party [was] entitled to a judgment as a matter of law.\u2019 \u201d 191 N.C. App. at 108, 664 S.E.2d at 328 (quoting Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007)). Once the defendant made this showing, the burden shifted to the plaintiff \u201c \u2018to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing he [could] at least establish a prima facie case at trial.\u2019 \u201d Id. (quoting Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661) (emphasis added)).\nApplying this standard in Moore, we concluded the plaintiff had not met his burden in that he had produced \u201c[n]o evidence show[ing] 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.\u201d 191 N.C. App. at 110, 664 S.E.2d at 329 (emphasis added). Thus, the plaintiff in Moore did not produce any evidence to support an essential element of his claim under N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b), the element of physical contact with a hit-and-run vehicle, and we concluded the defendant\u2019s motion to dismiss was properly granted\u2014 albeit under a summary judgment standard. Id.\nHere, in the orders granting defendants\u2019 Rule 12(b)(6) motions to dismiss the trial court stated: \u201cIt appearing to the [c]ourt after oral argument and upon review of Plaintiffs\u2019 Complaint and applicable law that the Complaint should be dismissed for failure to state a claim upon which any relief can be granted.\u201d However, oral arguments in support of a motion to dismiss \u201care not considered matters outside the pleadings.\u201d Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 300, 672 S.E.2d 691, 693 (2009) (citing King v. Cape Fear Mem\u2019l Hosp., Inc., 96 N.C. App. 338, 342, 385 S.E.2d 812, 815 (1989), disc. review denied, 326 N.C. 265, 389 S.E.2d 114 (1990)).\nIn Charlotte Motor Speedway, this Court rejected the appellant\u2019s claim that the trial court converted a 12(b)(6) motion to dismiss into a motion for summary judgment where the trial court\u2019s order stated it had reviewed the pleadings, the briefs, and the oral arguments by counsel in reaching its decision. Id. We concluded that \u201cnothing in the record established] that the trial court considered matters beyond the pleadings[.]\u201d Id. Similarly, here, nothing in the record reveals that the trial court considered any matter beyond the pleadings. Accordingly, unlike the Court in Moore, we must treat plaintiffs\u2019 allegations as true and review plaintiffs\u2019 complaint only \u201c \u2018to test the law of the claim, not the facts which support it.\u2019 \u201d Okuma Am. Corp., 181 N.C. App. at 88, 638 S.E.2d at 619 (quoting White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979)).\nThe majority concludes that the differing standards of review in Moore and this case are not relevant to the resolution of plaintiffs\u2019 appeal as plaintiffs\u2019 complaint presents an insurmountable bar to the requested relief \u2014 that the allegations in the complaint do not establish physical contact between Mr. Prouse\u2019s vehicle and the hit-and-run driver. In contrast, I interpret plaintiffs\u2019 complaint as being consistent with our caselaw in alleging an indirect collision with a hit-and-run vehicle. Thus, I conclude the facts presented in this case are distinguishable from those in Moore and the standard of review applied in Moore provides a critical difference.\n\u201cThe distinction between a Rule 12(b)(6) motion to dismiss and a motion for summary judgment is more than a mere technicality.\u201d Locus v. Fayetteville State Univ., 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991). As the majority notes, a motion for summary judgment \u201callows the trial court \u2018to pierce the pleadings\u2019 to determine whether any genuine factual controversy exists.\u201d Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (quoting Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972)). This inquiry requires the nonmoving party to support his claim with specific facts; he cannot rely upon the mere allegations of his pleading. Id. 369-70, 289 S.E.2d at 366. Indeed, Rule 56(e) \u201cprecludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts.\u201d Id. at 370, 289 S.E.2d at 366 (emphasis omitted); N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (2011).\nThe plaintiff in Moore did not meet this burden when the defendants challenged his claim that N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b) should require coverage for the damage sustained when his vehicle struck a \u201cpine tree log\u201d that was lying in the interstate. 191 N.C. App. at 107, 664 S.E.2d at 327. A collision with a natural object lying in the road does not require the involvement of a second vehicle, a prerequisite for a claim made pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b). A pine tree log can fall onto a road without the involvement of any vehicle, and the Court noted the plaintiffs lack of any evidence of another vehicle in affirming the dismissal of the claim: \u201cNo evidence shows from what vehicle, truck or trailer, if any, the pine tree log fell from . . . .\u201d Moore, 191 N.C. App. at 110, 664 S.E.2d at 329 (emphasis added)).\nHere, plaintiffs alleged the vehicle in which Mr. Prouse was a passenger \u201cwas struck by a moving vehicle tire, which fell from a moving vehicle.\u201d Thus, as we are required to treat plaintiffs\u2019 allegations as true, Okuma Am. Corp., 181 N.C. App. at 88, 638 S.E.2d at 619, this case \u2014 unlike Moore \u2014 necessarily involves a second vehicle and a collision with a part of that vehicle or its cargo.\nFurthermore, I do not agree with the majority that the Supreme Court\u2019s decision affirming Moore was an express rejection of the rationale espoused by the dissenting judge at the Court of Appeals. Moore, 362 N.C. at 673, 669 S.E.2d at 321; Moore, 191 N.C. App. at 111, 664 S.E.2d at 329 (McCullough, J., dissenting). The Supreme Court\u2019s per curiam opinion provided no insight into the Court\u2019s reasoning. Moore, 362 N.C. at 673, 669 S.E.2d at 321. Rather, in light of the summary judgment standard of review applied in that case, I interpret the Supreme Court\u2019s ruling as being limited to affirming that the plaintiff in Moore failed to meet his burden of forecasting evidence of an essential element of his claim \u2014 direct or indirect physical contact with a hit-and-run vehicle.\nThe requirement for physical contact between the insured and the hit-and-run driver did not originate with Moore. In McNeil v. Hartford Acc. & Indem. Co., 84 N.C. App. 438, 442, 352 S.E.2d 915, 917 (1987), this Court concluded that our caselaw had interpreted the uninsured motorists provision of N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b) to require physical contact between the vehicle operated by the insured and the vehicle operated by the hit-and-run driver. Id. Specifically, we held in McNeil that this physical contact requirement could be satisfied in an indirect manner, in a \u201c \u2018chain collision\u2019 \u201d that involved a hit-and-run vehicle. Id. Subsequently, in Andersen v. Baccus, 335 N.C. 526, 529, 439 S.E.2d 136, 138 (1994), our Supreme Court cited McNeil and approved this Court\u2019s interpretation of the uninsured motorist provision of N.C. Gen. Stat. \u00a7 20-279.21 as requiring a \u201cdirect or indirect\u201d collision with the hit-and-run driver\u2019s vehicle. Significantly, Andersen was cited as the basis for this Court\u2019s reasoning in Moore, 191 N.C. App at 110, 664 S.E.2d at 329. Thus, contrary to the majority\u2019s assertion, I conclude that our caselaw has not expressly rejected the proposition that the direct or indirect physical contact requirement could be satisfied by a collision with a part of a hit-and-run vehicle or its cargo. There is no practical distinction between a direct collision with a hit-and-run vehicle, as recognized in Andersen, an indirect collision with a hit-and-run vehicle through an intermediate vehicle, as recognized in McNeil, and an indirect collision with a part of a hit-and-run vehicle \u2014 such as a spare tire \u2014 or its cargo, as in the present case.\nThe reasoning of Andersen and McNeil was applied by Judge W. Earl Britt in Geico Ins. Co. v. Larson, 542 F. Supp. 2d 441, 447 (E.D.N.C. 2008). While the decision is not binding on this Court, I find it to be a persuasive application of our caselaw. In Geico, the uninsured motorist provision of the insured\u2019s automobile insurance policy provided coverage for injuries where a hit-and-run vehicle \u201c \u2018hits\u2019 \u201d the insured, the insured\u2019s vehicle, or the vehicle which the insured was occupying. 542 F. Supp. 2d at 445 (emphasis omitted). The district court concluded that where a rock fell from an unidentified truck and struck the insured\u2019s vehicle in an \u201cunbroken \u2018chain eollision[,]\u2019 \u201d the physical contact requirement of N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b) could be satisfied and allowed the case to proceed with discovery. Geico, 542 F. Supp. 2d at 447-48 (citing McNeil, 84 N.C. App. at 442, 352 S.E.2d at 917).\nIn summary, I conclude Moore, 191 N.C. App. at 110, 664 S.E.2d at 329, decided under a different evidentiary standard, is not controlling; the plaintiff in Moore failed to establish the existence of a hit- and-run vehicle, much less his physical contact with a hit-and-run vehicle. Rather, as did the dissenting judge in Moore, 191 N.C. App at 111, 664 S.E.2d at 329 (McCullough, J., dissenting), I discern no justification for denying that the physical contact requirement of N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(b) could be satisfied by an indirect and unbroken chain collision with a part of a hit-and-run vehicle or its cargo. Accordingly, I conclude the dismissal of plaintiffs\u2019 complaint was improper, and I would reverse the trial court\u2019s orders.\n. See Norman v. Nash Johnson & Sons\u2019 Farms, Inc., 140 N.C. App. 390, 416, 537 S.E.2d 248, 265 (2000) (distinguishing a case cited by the defendants where the case cited involved the review of a motion for summary judgment instead of a Rule 12(b)(6) motion to dismiss, which was the subject of the appeal in Norman). Although, in Moore, this Court reviewed the trial court\u2019s order as a grant of a motion for summary judgment, 191 N.C. App. at 108, 664 S.E.2d at 327, the text of the opinion leads me to conclude this Court should have reviewed the trial court\u2019s order as a grant of a Rule 12(b)(6) motion to dismiss. In Moore, we stated that because the trial court considered \u2018\u201cthe briefs and oral arguments of counsel\u2019\u201d the trial court had considered \u201cmatters \u2018outside the pleadings\u2019\u201d in reaching its decision. Id. However, as stated above, \u201c[r]equests, explanations, and arguments of counsel relating to a motion to dismiss are not considered matters outside the pleadings.\u201d Charlotte Motor Speedway, Inc., 195 N.C. App. at 300, 672 S.E.2d at 693. Nevertheless, Moore was decided under a different evidentiary standard, and thus, the present case is distinguishable.\n. See State v. Summers, 284 N.C. 361, 365, 200 S.E.2d 808, 811 (1973) (noting that a per curiam decision by the Supreme Court of the United States \u201c\u00bf[id] not specify the legal reasoning which influenced the Court\u201d); Sellers v. Ochs, 180 N.C. App. 332, 336 n.2, 638 S.E.2d 1, 3 n.2 (2006) (distinguishing Collins v. Davis, 68 N.C. App. 588, 315 S.E.2d 759, aff\u2019d per curiam, 312 N.C. 324, 321 S.E.2d 892 (1984), noting that the Supreme Court of North Carolina \u201csummarily affirmed [Collins] per curiam without adopting the reasoning provided by\u201d the authoring judge in Collins), disc. review denied, 361 N.C. 221, 642 S.E.2d 449 (2007).\n. See Hendricks v. Guaranty Co., 5 N.C. App. 181, 182, 167 S.E.2d 876, 877 (1969) (affirming dismissal of the plaintiffs uninsured motorist claim due to a lack of physical contact between motorists); East v. Reserve Ins. Co., 18 N.C. App. 452, 455, 197 S.E.2d 225, 226 (1973) (affirming summary judgment against the plaintiff where he drove into a ditch to avoid a collision); Petteway v. S. Carolina Ins. Co., 93 N.C. App. 776, 777, 379 S.E.2d 80, 81 (affirming summary judgment against the plaintiff where his vehicle was forced off the road and did not come into contact with any other vehicle), disc. review denied, 325 N.C. 273, 384 S.E.2d 518 (1989).",
        "type": "dissent",
        "author": "HUNTER, Robert C., Judge,"
      }
    ],
    "attorneys": [
      "Price, Smith, Hargett, Petho & Anderson, by William Benjamin Smith and Archibald Law Office, by C. Murphy Archibald, for plaintiff-appellants.",
      "Teague Campbell Dennis & Gorham, L.L.P., by J. Matthew Little and Joseph E. Houchin, for defendant-appellee Bituminous Casualty Corporation.",
      "McAngus, Goudelock & Courie, PLLC, by Heather G. Connor and Michael P. Hummel, for defendant-appellee State Farm Mutual Automobile Insurance Company."
    ],
    "corrections": "",
    "head_matter": "JAMES W. PROUSE AND CAROL D. PROUSE, Plaintiffs v. BITUMINOUS CASUALTY CORPORATION AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants\nNo. COA12-160\n(Filed 7 August 2012)\nInsurance \u2014 uninsured motorist \u2014 physical contact between vehicles required\nThe trial court did not err in an automobile accident, caused by the falling of a tire from a moving vehicle, by granting defendants\u2019 motions to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). The successful maintenance of a direct claim against an uninsured motorist carrier pursuant to N.C.G.S. \u00a7 20-279.21 is conditioned upon a showing that physical contact occurred between the insured and the vehicle operated by the hit-and-run driver, and the allegations of plaintiffs\u2019 complaint, when considered in the light most favorable to plaintiffs, showed that no physical contact between the vehicles occupied by plaintiff and the uninsured driver occurred.\nJudge HUNTER, Robert C., dissenting.\nAppeal by plaintiffs from orders entered 2 November 2011 by Judge Richard D. Boner in Stanly County Superior Court. Heard in the Court of Appeals 9 May 2012.\nPrice, Smith, Hargett, Petho & Anderson, by William Benjamin Smith and Archibald Law Office, by C. Murphy Archibald, for plaintiff-appellants.\nTeague Campbell Dennis & Gorham, L.L.P., by J. Matthew Little and Joseph E. Houchin, for defendant-appellee Bituminous Casualty Corporation.\nMcAngus, Goudelock & Courie, PLLC, by Heather G. Connor and Michael P. Hummel, for defendant-appellee State Farm Mutual Automobile Insurance Company."
  },
  "file_name": "0111-01",
  "first_page_order": 121,
  "last_page_order": 135
}