Estate of Kirk Ex Rel. Kirk v. Lowe

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 30, 2001 Session
THE ESTATE OF JAMES WENDELL KIRK BY YOUR
ADMINISTRATOR, RANDALL LEE KIRK, ET AL. v. JAMES LOWE
Appeal from the Circuit Court for Benton County
No. 99CCV-193 C. Creed McGinley, Judge
No. W2000-02858-COA-R9-CV - Filed September 28, 2001
The Plaintiffs in this case sued “John Doe,” an unknown driver, for injuries and damages resulting
from the death of Plaintiffs’ decedent. Process was served on decedent’s uninsured motorist
insurance carrier pursuant to Tennessee’s Uninsured Motor Vehicle Coverage statutes. More than
one year after the accident, the identity of the “John Doe” was discovered and Plaintiffs filed an
amended complaint, naming him as Defendant. The Defendant moved for summary judgment on
the basis that he was never an uninsured motorist, but at all pertinent times was insured, and that the
one-year statute of limitations had expired. The trial court denied the motion, and we reverse.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.
Fred N. McLean, Paris, Tennessee, for the appellant, James Lowe.
Terry J. Leonard, Camden, Tennessee, for the appellees, Randall Lee Kirk, Administrator of the
Estate of James Wendell Kirk and Onellia Kirk..
OPINION
Following the death of James Wendell Kirk, suit was brought by the administrator of his
estate and his widow against “John Doe,” an unknown driver, for injuries and damages from a
vehicular accident which resulted in Mr. Kirk’s death. The complaint alleges that, on or about
September 4, 1998, Mr. Kirk was operating his truck in a southerly direction, traveling behind the
John Doe vehicle, when the John Doe vehicle came to a sudden stop. Plaintiffs allege that Mr. Kirk
took evasive action to avoid a collision with the other vehicle, and that said maneuver caused the
truck which Mr. Kirk was operating to collide with a ditch and embankment. Process was properly
caused to be served on Mr. Kirk’s uninsured motorist carrier, Northland Insurance Company,
pursuant to Tenn. Code Ann. § 56-7-1206(a). The identity of “John Doe” was subsequently
discovered to be James Lowe. Northland then moved to dismiss on the grounds that it had been
served as the uninsured motorist carrier because the accident was caused by an unknown tortfeasor,
that “John Doe” had been identified as James Lowe, and that James Lowe was in fact insured.
On September 27, 1999, Kirk filed a Motion Requesting Permission to Amend Complaint
to add James Lowe as a party defendant. The Amended Complaint deleting “John Doe” and
substituting James Lowe was filed on October 21, 1999. An Order of Voluntary Nonsuit dismissing
Northland was filed on November 3, 1999.
Mr. Lowe filed a Motion for Summary Judgment on March 7, 2000. In support of the
motion, Mr. Lowe submitted that Tenn. Code Ann. § 56-7-1206(e) governs only uninsured motorists
and therefore was not applicable in this case, because it is undisputed that Mr. Lowe was, in fact,
insured at the time of the accident. This motion was denied on June 27, 2000. In denying summary
judgment, the trial court found that Tenn. Code Ann. § 56-7-1206(e) was applicable to this case,
that the action was not therefore time-barred, and that the distinction between a later identified “John
Doe” who was insured as opposed to uninsured was an artificial one. The trial court granted Mr.
Lowe’s application for a Tenn. R. Civ. P. 9 Interlocutory Appeal, noting that if this Court found that
Tenn. Code Ann. § 56-7-1206 (b) and (e) did not apply to this case, Mr. Kirk’s action would be time-
barred and summary judgment appropriate. This Court granted Mr. Lowe’s application for a Rule
9 Interlocutory Appeal.
It is clear from this record that Mr. Kirk’s Amended Complaint was not filed within the one-
year statutory period provided for in Tenn. Code Ann. § 28-3-104(a)(1). Further, Mr. Kirk agrees
that Tenn. R. Civ. P. 15.03 regarding the relation back of amendments is not applicable in this case.
Mr. Kirk argues, however, that the provisions of Tenn. Code Ann. § 56-7-1201 et seq., Tennessee’s
Uninsured Motor Vehicle Coverage statutes, apply to this case to extend the statute of limitations.
Mr. Kirk submits that once the “John Doe” Complaint has been properly filed, the provisions of
Tenn. Code Ann. § 56-7-1206(e) control, even if “John Doe” is identified and found to be insured.
Standard of Review
Summary Judgment is appropriate “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 the moving party is entitled to a judgment as a matter of law.” Tenn. R.Civ.
P. 56.04. It is appropriate when there is no dispute regarding the facts that control the application
of a rule of law. Byrd v. Hall, 487 S.W.2d 208, 214-15 (Tenn. 1993). Upon review, the appellate
court must decide anew whether summary judgment is appropriate. Hart v. Tourte, 10 S.W.3d 263,
268 (Tenn. Ct. App. 1999) (citing Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744
(Tenn. 1991)). We must view the evidence in the light most favorable to the nonmoving party,
allowing all reasonable inferences in its favor and discarding countervailing evidence. Id. (citing
Byrd v. Hall, 487 S.W.2d at 210-11). Since this determination is a question of law, we review the
record de novo with no presumption of correctness regarding the trial court’s determination. Tenn.
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R. App. P. 13(d); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). When, as here, there is no
dispute over the facts controlling the application of a rule of law, summary judgment is an
appropriate means of deciding that issue. Byrd, 487 S.W.2d at 214-15.
When we are called upon to interpret a statute, as we are here, our primary objective is to
effectuate the purpose of the legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000) (citing
Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000)). Where possible, the
intent of the legislature should be determined from the natural and ordinary meaning of the words,
not by a construction that is forced or which limits or extends the meaning. Id. (citing Hawks v. City
of Westmorland, 960 S.W.2d 10, 16 (Tenn. 1997)).
Issues
The determinant issues in this case, as we perceive them, are: Do the uninsured motorist
procedures provided by Tenn. Code. Ann. § 56-7-1201 et seq., particularly §1206(b) (issuance of
a “John Doe” warrant against an unknown motorist to come within coverage of uninsured motorist
insurance provision) and §1206(e) (procedure for alias process when the uninsured motorist’s
whereabouts is discovered), extend the statute of limitations for personal injury actions so that an
action can be maintained where a previously unknown and subsequently identified motorist is in fact
insured? Or are the procedural provisions of Tenn. Code. Ann. § 56-7-1206(b) and (e) applicable
only when the “John Doe” motorist is uninsured? Second, does the one-year statute of limitations
for personal injury actions codified in Tenn. Code Ann. § 28-3-104(a)(1) bar Appellees’ lawsuit?
For the reasons stated below, we hold that Tenn. Code Ann. § 56-7-1206(e) pertains
exclusively to uninsured motorists. It is not applicable to the case at bar, where the motorist is in
fact insured. The provisions of section 56-7-1201 et seq. therefore do not apply to this fact situation
to extend the one-year statute of limitations for personal injury actions as codified at Tenn. Code
Ann. § 28-3-104(a)(1). Appellees admit that their Amended Complaint was not filed within the one-
year statutory period. Appellant and Appellees agree that the Relation Back amendment of Tenn.
R. Civ. P. 15.03 is not applicable in this case. Therefore, as a matter of law, this claim is time-
barred by the one-year statute of limitations.
Applicability of Tenn. Code Ann. 56-7-1201 et seq.
Uninsured Motor Vehicle Coverage is governed by section 56-7-1201, et seq. The purpose
of uninsured motorist insurance is to protect individuals who sustain injuries caused by uninsured
motorists who cannot respond in damages. Hoyle v. Carroll, 646 S.W. 2d 161, 162 (Tenn. 1983).
The uninsured motorist carrier does not insure the uninsured motorist against liability. Rather, it
protects the insured against inadequate compensation. 15 Tenn. Juris., Insurance, §141. It provides
this protection by making the uninsured motorist insurance carrier act as the insurer of the uninsured
motorist. Stallcup v. Duncan, 684 S.W.2d 643, 646 (Tenn. Ct. App. 1984). Uninsured motorist
coverage gives the insured motorist the protection he would have had if the alleged tortfeasor had
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assumed his own financial responsibility by purchasing liability insurance. 15 Tenn. Juris.,
Insurance, §141.
Tennessee’s uninsured motorist statute has never authorized an insured to bring suit
directly against the uninsured motorist insurance carrier when the identity of an insured motorist was
known. Glover v. Tennessee Farmer’s Mut. Ins. Co., 468 S.W.2d 727 (Tenn. 1971). However, in
Story v. Southern Fire and Casualty Company, direct action against an insurance carrier was
permitted where the identity of the uninsured motorist was unknown. Story v. Southern Fire and
Cas. Co., 532 S.W.2d 277, 285 (Tenn. Ct. App. 1975). In Story, this Court stated: “There is good
reason to advocate the ‘John Doe’ procedure . . . however, it is considered that this procedure should
be initiated in Tennessee by [the legislature].” Id. Subsequent to Story, in 1984, the legislature
amended Tenn. Code Ann. § 56-7-1201 et seq. to provide for situations where the motorist causing
injury is unknown. The “John Doe” procedure that has been codified in Tenn. Code Ann. § 56-7-
1206(b) (2000) provides:
If the owner or operator of any motor vehicle which causes bodily injury or property damage
to a person insured under this part is unknown and if such insured satisfies all of the
requirements of § 56-7-1201(e), should suit be instituted the insured shall issue a John Doe
warrant against the unknown owner or operator in order to come within the coverage of the
owner’s uninsured motorist policy. If the uninsured motorist’s identity and whereabouts is
discovered during the pendency of the proceeding, the provisions of subsection (e) shall
govern the proper course of action following such discovery.
The purpose of Tenn. Code Ann. § 56-7-1206(b) is to provide a uniform process for bringing
suit when the identity of an uninsured motorist is unknown, so as to conform with the procedure
where the identity of the insured motorist is known. Lewis v. Memphis Fire Ins. Co., No. 1108,
1987 WL 14291,*2 (Tenn. Ct. App. July 21, 1987); Gray v. Nationwide Mut. Ins. Co., Shelby Law
No. 65, 1989 WL 11739, *2 (Tenn. Crim. App. Feb. 15, 1989).
Section 56-7-1206(e) provides:
In the event the uninsured motorist’s whereabouts is discovered during the pendency
of the proceedings, an alias process may issue against the uninsured motorist. In such
a case, the uninsured motorist shall be allowed a reasonable time within which to
plead to the original process, and then the case may proceed against the uninsured
motorist as if the motorist was served with process in the first instance.
Tenn. Code Ann. § 56-7-1206(e) (2000).
Section (e) allowing plaintiffs to proceed “as if the motorist was served process in the first
instance” has been interpreted liberally, allowing plaintiffs to by-pass the Tenn. R. Civ. P. 3
requirement that new process be issued every six months or that the action be re-filed yearly. Little
v. State Farm Mut. Ins. Co., 784 S.W.2d 928 (Tenn. Ct. App. 1989); Lady v. Kregger, 747 S.W.2d
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342 (Tenn. Ct. App. 1987). However, this Court has declined to extend this interpretation to fact
situations where the defendant is not, in fact, uninsured. In Carr v. Borchers, this Court held that
to extend this interpretation to a case where the defendant was in fact insured would “require
redefining ‘uninsured motorists’ as used in [Tenn. Code Ann.] § 56-7-1206 to include any motorist
whose whereabouts is unknown.” Carr v. Borchers, 815 S.W.2d 528, 531 (Tenn. Ct. App. 1991)
Extending the Uninsured Motor Vehicle Coverage statute to include situations in which the
defendant motorist is in fact insured goes well beyond the plain meaning of the statute or the
purposes as described above. As stated in Carr, the prerogative of expanding the statute to include
situations where a motorist is subsequently found to be insured belongs to the legislature. Id. Carr
was decided in 1991. Since that time, the legislature has not deemed it necessary to amend the
statute.
In Lipscomb v. Doe, the Tennessee Supreme Court addressed the sufficiency of a “John Doe”
warrant where the “John Doe” was known to be one of three identifiable individuals. Lipscomb v.
Doe, 32 S.W.3d 840 (Tenn. 2000). In holding that the insurance carrier was not prejudiced by the
failure to rename the three individuals in her complaint, when the plaintiff previously had provided
her uninsured motorist insurance carrier with their identities and honestly did not know which was
the driver, the court held that plaintiff had fulfilled the requirements of a “John Doe” action. Id. at
845. The court in Lipscomb stated that the language of Tenn. Code Ann. § 56-7-1206 (b) evidenced
an intention of the legislature to abrogate Tenn. R. Civ. P. 3 and 15 when a plaintiff seeks to amend
a complaint upon discovery of a “John Doe” defendant. Id. at 848. The court noted that although
Lady v. Kregger addressed only the issue of service of process under 56-7-1206(e), the reasoning
of Lady applied equally to formal amendments of the pleadings. Id.In Lipscomb, the court did not suggest, however, that such abrogation would apply to
situations in which the defendant is in fact insured. As noted above, this Court specifically has held
that the abrogation of Tenn. R. Civ. P. 3 in Lady does not extend to factual situations where a
defendant’s whereabouts are determined and the defendant is in fact an insured motorist. Carr v.
Borchers, 815 S.W.2d at 531. Likewise, rule 15 is not abrogated in situations where the defendant
motorist is, in fact, insured.
In this case, Appellant recognizes that if the uninsured motorist provisions are not applicable,
his claim against Mr. Lowe is barred by the one-year statute of limitations codified at Tenn. Code
Ann. § 28-3-104(a)(1). Tennessee Code Annotated § 56-7-1206 (b) and (e) have been interpreted
by this Court and the Tennessee Supreme Court to apply only to factual situations where the
defendant is uninsured. This interpretation is consistent with the purpose of the statute, which is to
provide protection against uninsured motorists. Once a defendant is found to be insured, the
provisions of the uninsured motorists coverage are no longer applicable. “[I]t would be a distortion
of previous cases and of the statutes in question . . . to place within the uninsured motorist coverage
a vehicle covered by valid and collectible liability insurance . . .” Rogers v Tennessee Farmers
Mut. Ins. Co., 620 S.W.2d 476, 479 (Tenn. 1981).
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In light of the foregoing, the order of the trial court denying the motion for summary
judgment is reversed, and this case is remanded to the trial court for further proceedings consistent
with this opinion. Costs of this appeal are taxed to the appellees, Randall Lee Kirk, Administrator
of the Estate of James Wendell Kirk, and Onellia Kirk, and their surety, for which execution may
issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
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