Opinion

David Holt v. Barbara Pyles and David Holt v. State of Tennessee

Court: Court of Appeals of Tennessee
Filed: Apr 27, 2007
Status: Published
On the bench: Judge William B. Cain
Cited by: 0 cases
Authority: More cited than 29.4%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 11, 2006 Session

DAVID HOLT, ET AL. v. BARBARA PYLES, ET AL.

Appeal from the Circuit Court for Davidson County

No. 02C-1561 Walter Kurtz, Judge

No. M2005-02092-COA-R3-CV - Filed on April 24, 2007

AND

DAVID HOLT, ET AL. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Davidson County

No. 02C-3394 Walter Kurtz, Judge

No. M2005-02094-COA-R3-CV - Filed on April 24, 2007

This case concerns a motor vehicle accident in which serious injuries were sustained. The

insured believed that his insurance policy provided excess coverage if he were to be involved in an

accident with an uninsured or underinsured motorist. In forming this belief, he relied upon

statements by the insurance agent and the summary pages of his policy. Following the accident, the

insurance company denied that the insured maintained excess protection under his uninsured or

underinsured motorist coverage, citing an exclusionary endorsement in the policy. The insured

alleged that the policy was ambiguous. The trial court granted the insurance company’s Motion For

Summary Judgment, ruling that the policy was not ambiguous and that the insured’s affidavit was

insufficient to create a genuine issue of material fact as to the representations made by the insurance

agent. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., J. joined.

PATRICIA J. COTTRELL, J., filed a separate opinion concurring in part and dissenting in part.

Christina Norris, John L. Norris, Nashville, Tennessee, for the appellants, David Holt and Victoria

Holt.

Barry L. Howard, Melissa Bradford Muller, Nashville, Tennessee, for the appellee, Encompass

Insurance.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Sarah F.

Henry, Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

I. FACTUAL INFORMATION

On July 20, 2001, David Holt (“Holt”) sustained severe wrist and neck injuries in a car

accident. Both injuries required surgical treatment and drastically affected Holt’s everyday life. Two

other drivers were involved in the accident. Barbara Pyles (“Pyles”), a state employee acting in the

scope of her employment and driving a state owned vehicle, struck Roger Williams (“Williams”) in

the rear. The impact caused Williams, who was driving behind Holt, to strike Holt in the rear. Pyles

was held to be solely at fault for the accident.

At the time of the accident, Holt maintained an automobile insurance policy with Encompass

Insurance (“Encompass”). Holt and his wife (“the Holts”) were living in Augusta, Georgia when he

was transferred to Hendersonville, TN. The move took place from May to July of 2001. While

living in Augusta, the Holts maintained automobile insurance, home protection insurance, and excess

(umbrella) coverage insurance with CNA, which later became Encompass Insurance. During his

move to Hendersonville, Holt contacted a local insurance agency, the AAA Auto Club in Madison,

Tennessee, and requested that his policy be moved from Georgia to Tennessee.

At this point in time, Holt alleges that when he spoke with the agent in Madison, Tennessee,

the agent informed him that Tennessee did not require drivers to have liability insurance and

therefore a high percentage of Tennessee drivers were uninsured. Holt alleges that the agent further

told him that in order for his excess coverage protection to “work properly” with the underlying

coverages, the underlying coverages would have to match. Relying on the statements by the agent,

Holt raised the limits of his un/under insured motorist coverage to make the uninsured motorist

limits the same as the bodily injury limits. He believed this was necessary to ensure that his excess

coverage protection would “work properly”.

After purchasing the Encompass policy through the AAA agent, Holt received a copy of the

entire policy. Upon receipt of the policy, Holt reviewed the first five pages representing the policy

declarations/summary with the AAA Auto Club agent. On the first of five pages, under MOTOR

VEHICLE PROTECTION, the coverages and limits are listed. The relevant coverages and limits

are as follows:

Coverages Limits

Bodily Injury (per person/per accident) $250,000/$500,000

Property Damage (per accident) $100,000

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Uninsured Motorists

Bodily Injury (per person/per accident) $250,000/$500,000

Property Damage (per accident) $100,000

On page three of five of the declarations/summary portion, the following appears:

OPTIONAL EXCESS PROTECTION (Coverage applies only if a premium or

limit is shown)

COVERAGES LIMITS

EXCESS LIABILITY: applies to all “covered

“exposures” and “additional covered exposures” $1,000,000

MINIMUM RETAINED LIMIT: You must maintain this amount of underlying

insurance.

Underlying insurance on a Combined Single

Limit basis: $500,000 each accident

Underlying insurance on a Split Limit basis: $250,000 bodily injury

each person

$500,000 bodily injury

each accident

$100,000 property

damage each accident

Directly underneath the Optional Excess Protection provision, under the heading of

GENERAL POLICY INFORMATION, the policy states: “The coverage and limits shown here are

subject to the restrictions, conditions, and exclusions of the policy and its endorsements.” The policy

goes on to state that it is subject to a list of forms and endorsements, including one entitled

OPTIONAL EXCESS LIABILITY COVERAGE. The Optional Excess Liability Coverage

Endorsement, which numbers twelve pages in length, states the following in pertinent part:

EXCESS LIABILITY COVERAGE

INSURING AGREEMENT

We will pay damages for which a covered person becomes legally liable due to an

occurrence resulting in personal injury, bodily injury, or property damage, up to the

limit of liability shown in the Coverage Summary for “Optional Excess Liability”.

Any payment is subject to the minimum retained limit, the exclusions listed in the

section called Losses We Do Not Cover and the other provisions of this endorsement.

...

LIMIT OF LIABILITY

You must maintain underlying insurance for each exposure shown in the Coverage

Summary for “Optional Excess Liability”, with not less than the liability limits

shown in the Minimum Retained Limit definition. Except as provided in Provision

3, Self Insured Retention, under the General Provisions Optional Excess Liability

coverage Endorsement, we will pay only the difference between:

1. The Minimum Retained Limit amount shown in the Coverage Summary; and

2. The total of what you legally have to pay;

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and in no case more than the limit shown in the Coverage Summary for “Optional

Excess Liability”.

...

LOSSES WE DO NOT COVER

We do not provide any coverage under this endorsement for:

1. Benefits payable to you or anyone else under any:

a. No-Fault;

b. Uninsured or Underinsured Motorist;

c. Medical Expense or Medical Payments;

d. Motorcycle Guest Passenger Liability;

coverage, or any similar coverage.

By reading the declarations/summary portion of the policy, Holt believed that his excess

liability coverage protection would apply to any un/under insured motorist claims. The basis for this

belief was the fact that he chose, based on the alleged representations made by the AAA agent, to

purchase un/under insured motorist limits that matched the bodily injury liability limits of the policy.

Following the accident, the Holts filed suit against Pyles and Williams. The Holts also

served a summons on their insurer Encompass. On February 4, 2003, the Circuit Court issued an

Order consolidating the Holts’ claims against the State of Tennessee with the already pending action

against Williams and Encompass. Eventually a voluntary nonsuit was entered in regard to Williams,

leaving only the Holts, Encompass, and the State of Tennessee as parties to the suit.

On April 6, 2005, Encompass filed a Motion for Summary Judgment with the complete

insurance policy attached. Encompass’s Motion asked the Court to find that its policy had un/under

insured motorist limits of $250,000/$500,000, and that the excess liability coverage of $1,000,000

did not provide excess un/under insured motorist coverage to Holt. Holt filed a Response in

Opposition to Encompass’s Motion for Summary Judgment on May 16, 2005. The Response argued

that Encompass’s policy provided Holt $1,000,000 of un/under insured motorist coverage in addition

to the underlying un/under insured motorist coverage of $250,000/$500,000. In support of his

argument, Holt attached his own affidavit.

The Trial Court granted Encompass’s Motion for Summary Judgment. In its Memorandum

and Order dated May 27, 2005, the Court stated in relevant part:

The Court does not find the insurance contract to be ambiguous. There is no doubt

that many insurance contracts are complex and contain a number of exclusions. The

Court is of the opinion that the exclusion here is clear and that the summary coverage

page or policy coverage summary of the policy does not create an ambiguity that

would bring into question the exclusion. The Court does not believe that “all covered

exposures” or “optional excess protection” can be read as expansively as the

plaintiffs assert.

...

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After careful consideration, the Court finds that Encompass Insurance can have no

contractual liability under the facts and circumstances of this case. The motion for

summary judgment is granted. Encompass Insurance is dismissed from this lawsuit.

On August 15-16, 2005, the Trial Court conducted a non-jury trial with the State of

Tennessee as the only remaining defendant in the matter. Tennessee Code Annotated § 9-8-307(e)1

limits the State of Tennessee’s liability for tort damages to $300,000 per claim. The Court held that

“[g]iven the amount of medical expenses, and the effect of this injury on the plaintiff’s life, the Court

can easily set the damages at $300,000.” Therefore, the trial court awarded damages to Holt against

the State of Tennessee in the amount of $300,000.

Appellants the Holts seek reversal of the Trial Court’s summary judgment ruling, presenting

two issues on appeal. They first allege that the conflict between the broad description of excess

insurance in the policy coverage summary and the terms of the Excess Liability Coverage

endorsement create an ambiguity that must be resolved in favor of the insured so as to provide

coverage. In the alternative, the Holts allege that David Holt’s recollection of a misrepresentation

made by the agent who sold him the policy in 2001 creates a genuine dispute as to a material fact on

estoppel that precludes summary judgment. Appellee the State of Tennessee seeks dismissal of the

appeal of the judgment against it, as “no issue has been raised which pertains to either the judgment

or this defendant and because the judgment has been satisfied.”

II. STANDARD OF REVIEW

According to Tennessee Rule of Civil Procedure 56, a party seeking summary judgment must

“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. When a summary judgment ruling is

appealed, “[n]o presumption of correctness attaches to the trial court’s findings in a summary

judgment case . . . . We should not affirm a summary judgment if any doubt or uncertainty exists

with regard to the facts or the conclusions to be drawn from the facts.” Burgess v. Harley, 934

S.W.2d 58, 62 (Tenn.Ct.App.1996). The Tennessee Supreme Court stated the following regarding

summary judgment:

[T]he issues that lie at the heart of evaluating a summary judgment motion are: (1)

whether a factual dispute exists; (2) whether the disputed fact is material to the

outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial

. . . . When the party seeking summary judgment makes a properly supported motion,

9-8-307. Jurisdiction - Claims - W aiver of Actions - Standard for Tort Liability - Damages - Immunities

- Definitions - Transfer of Claims.

...

(e) For causes of action arising in tort, the state shall only be liable for damages up to the sum of three

hundred thousand dollars ($300,000) per claimant and one million dollars ($1,000,000) per

occurrence....

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the burden then shifts to the nonmoving party to set forth specific facts, not legal

conclusions, by using affidavits or the discovery materials listed in Rule 56.03,

establishing that there are indeed disputed, material facts creating a genuine issue that

needs to be resolved by the trier of fact and that a trial is therefore necessary.

Byrd v. Hall, 847 S.W.2d 208, 214-215 (Tenn.1993).

This Court has dealt with its share of summary judgment rulings, and has stated the following

regarding the standard of review:

Summary judgments enjoy no presumption of correctness on appeal. Penley v. Honda

Motor Co., 31 S.W.3d 181, 183 (Tenn.2000); Burress v. Sanders, 31 S.W.3d 259,

262 (Tenn.Ct.App.2000). Accordingly, appellate courts must make a fresh

determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.

Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Mason v. Seaton, 942 S.W.2d

470, 472 (Tenn.1997). We must consider the evidence in the light most favorable to

the non-moving party, and we must resolve all inferences in the non-moving party’s

favor. Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn.2001); Terry

v. Niblack, 979 S.W.2d 583, 585 (Tenn.1998); Tamco Supply v. Pollard, 37 S.W.3d

905, 908 (Tenn.Ct.App.2000). Questions relating to the interpretation of written

contracts involve legal rather than factual issues. Brandt v. Bib Enters., Ltd., 986

S.W.2d 586, 592 (Tenn.Ct.App.1998); Rapp Constr. Co. v. Jay Realty Co., 809

S.W.2d 490, 491 (Tenn.Ct.App.1991). Insurance policies are contracts, and thus

scope of coverage issues present questions of law. Pile v. Carpenter, 118 Tenn. 288,

296, 99 S.W. 360, 362 (1907); Pennsylvania Lumbermens Mut. Fire Ins. Co. v. Holt,

32 Tenn. App. 559, 566, 223 S.W.2d 203, 206 (1949).

Merrimack Mutual Fire Ins. Co. v. Batts, 59 S.W.3d 142, 147 (Tenn.Ct.App.2001).

III. ANALYSIS

A. Ambiguity in the policy

Appellants the Holts argue that the insurance policy language is ambiguous. The Holts rely

on the policy language on page three of the declarations/summary portion stating that the policy’s

excess coverage applied to “all covered losses” and “all additional losses”. Further, the Holts rely

on the Encompass agent’s alleged statements indicating that they had $1,000,000 in coverage if ever

injured in an automobile accident with an un/under insured driver. However, Encompass alleges that

the insurance policy’s excess coverage did not apply to un/under insured motorist claims.

Encompass relies on the exclusionary language appearing later in the policy, and referred to on page

three of the declarations/summary portion, stating that no coverage was provided for uninsured or

underinsured motorist liability.

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This Court has stated the following in regard to the construction and interpretation of

insurance policies:

The respective rights of an insured and an insurance company are governed by their

contract of insurance. . . . Insurance contracts are subject to the same rules of

construction that are used to interpret other types of contracts. McKimm v. Bell, 790

S.W.2d 526, 527 (Tenn.1990); Hurley v. Tennessee Farmers Mut. Ins. Co., 922

S.W.2d 887, 892 (Tenn.Ct.App.1995). As with any other contract, the courts must

give effect to the parties' intentions as reflected in their written contract of insurance.

Black v. Aetna Ins. Co., 909 S.W.2d 1, 3 (Tenn.Ct.App.1995); Blaylock & Brown

Constr. Co. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn.Ct.App.1990). The

insurance policy should be construed as a whole in a reasonable and logical manner.

English v. Virginia Sur. Co., 196 Tenn. 426, 430, 268 S.W.2d 338, 340 (1954);

Standard Fire Ins. Co. v. Chester-O'Donley & Assocs., Inc., 972 S.W.2d at 7. The

courts should interpret an insurance policy as written and should give the policy's

terms their natural and ordinary meaning. Tata v. Nichols, 848 S.W.2d 649, 650

(Tenn.1993); Moss v. Golden Rule Life Ins. Co., 724 S.W.2d 367, 368

(Tenn.Ct.App.1986). The insuring agreement defines the outer limits of an insurance

company's contractual liability. Standard Fire Ins. Co. v. Chester-O'Donley &

Assocs., Ltd., 972 S.W.2d at 7. The courts are not at liberty to rewrite an insurance

policy solely because they do not favor its terms, Black v. Aetna Ins. Co., 909 S.W.2d

at 3, and must avoid forced constructions that render a provision ineffective or extend

a provision beyond its intended scope. Demontbreun v. CNA Ins. Cos., 822 S.W.2d

619, 621 (Tenn.Ct.App.1991). In the absence of fraud, overreaching, or

unconscionability, the courts must give effect to a provision in an insurance policy

when its terms are clear and its intent certain. Quintana v. Tennessee Farmers Mut.

Ins. Co., 774 S.W.2d 630, 632 (Tenn.Ct.App.1989).

Merrimack Mutual Fire Ins. Co. v. Batts, 59 S.W.3d 142, 148 (Tenn.Ct.App.2001). Further, this

Court stated that as long as a policy’s terms are unambiguous, it will be enforced as written, and that

courts cannot rewrite an unambiguous policy simply to avoid harsh results. Certain Underwriters

at Lloyd’s of London v. TransCarriers, Inc., 107 S.W.3d 496, 499 (Tenn.Ct.App.2002). Therefore,

the insured cannot simply focus on the declarations/summary portion of a contract in isolation; the

policy must be read as a whole.

While there are no Tennessee cases directly on point, several other jurisdictions have held

that the declarations portion of a contract cannot be construed in isolation from the remainder of the

contract. See Malmay v. Sherman, No. Civ.A. 02-2294, 2003 WL 22077786 (E.D. La. Sept. 8,

2003); Hobbs v. Hartford Ins. Co., 823 N.E.2d 561 (2005); Royal Prop. Group, LLC, v. Prime Ins.

Syndicate, Inc., 706 N.W.2d 426 (2005).

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The exclusionary language of the policy is clear. The main focus of this analysis centers on

the declarations/summary portion, or pages one through five, of the policy. Page one does in fact

include uninsured motorists under the coverages of the policy. On page three, under Optional Excess

Protection, the policy states that the excess liability coverage “applies to all ‘covered exposures’ and

‘additional covered exposures’”.

However, immediately following Optional Excess Protection is the General Policy

Information, which specifically in bold print states that “[t]he coverage and limits shown here are

subject to the restrictions, conditions, and exclusions of the policy and its endorsements.”

Immediately following this statement, and printed in all bold caps, the policy states: “Your policy

is subject to the following forms and endorsements.” The fifth endorsement listed is “G-18544-F

(10-98) OPTIONAL EXCESS LIABILITY COVERAGE”. The exclusionary language relied upon

by Encompass appears in this endorsement.

Insurance policies are, by nature, somewhat intimidating. However, the excessive length,

intricate provisions, and attention to detail are necessary evils. The point of a summary portion of

an insurance policy is just that, to provide a brief summary of the contents of the policy. It is

impossible to include all of the important provisions of the policy in the summary, because then it

becomes much more than a summary. The endorsement containing the exclusionary language is

plainly alluded to in the summary, alerting the insured that there may be possible limitations to the

policy. When read as a whole, the policy and its intent are clear.

We conclude that the Encompass insurance policy is not ambiguous. While extensive, its

effect is clear: Encompass did not intend to provide excess coverage for accidents with un/under

insured motorists, and specifically stated so in the policy.

B. Genuine Dispute as to Material Fact - Estoppel

The relevant portion of Holt’s affidavit states as follows:

2. During the time I was moving to Hendersonville, I contacted a local

insurance agency, the AAA Auto Club in Madison, Tennessee, and requested that my

entire policy be moved to Tennessee. I had to sign an application for a new insurance

policy. The agent told me that Tennessee did not require drivers to have liability

insurance and that a high percentage of Tennessee drivers were uninsured. The agent

also told me that, in order to make my policy work, the policy limits would have to

be synchronized. When I talked with the agent, I had no opportunity to review the

precise language of the excess coverage in the insurance contract and I relied on what

the agent told me. The agent told me that in order for my excess coverage protection

to work properly with the underlying coverages, the underlying coverages would

have to match. Based on this information, I raised the limits of my uninsured

motorist coverage. I believed that my excess coverage protection would apply to

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uninsured motorist claims because the policy was changed to make the uninsured

motorist limits the same as the bodily injury limits. The uninsured motorist premium

and the excess protection premium were higher in Tennessee than they had been in

Georgia.

3. I received and reviewed the declarations/summary of my new policy

with a AAA Auto Club agent before the accident with Barbara Pyles. I made sure all

of the underlying limits matched as the agent had told me they needed to. Since the

underlying limits under Motor Vehicle Protection of my bodily injury, uninsured

motorist - bodily injury, property damage, uninsured motorist - property damage and

home protection personal liability limits were in the amounts specified under the

Optional Excess Protection section of the policy declarations, I believed I had excess

coverage if I was in a wreck with an uninsured or underinsured driver and my

damages exceeded the uninsured motorist limits.

4. After the wreck caused by Barbara Pyles, who was driving a van owned

by the State of Tennessee, on July 20, 2001, I had telephone conversations with a

number of adjusters for Encompass Insurance, including Linda Maxwell. By late

March of 2002, I had already undergone surgery on my wrist, and Dr. Zellem was

treating my neck injury. By mid-April, I knew cervical surgery was a possibility. I

was having a lot of pain and knew that my claim could be substantial. In talking with

one of the Encompass adjusters, almost certainly Linda Maxwell based on what has

been provided by Encompass in discovery, the issue of the amount of my insurance

coverage came up in late March or in April, 2002. The adjuster, whom I believe to

be Ms. Maxwell, assured me that I had $1,000,000 of coverage, in addition to the

underlying uninsured motorist policy limits, under my policy for the July 20, 2001

accident I had been communicating with her about if the other driver did not have

enough insurance to cover my claim.

5. . . . Based on my dealing with the agent before the accident and my

understanding of the coverage I had, I thought I had a million dollars of excess

protection that would apply if I was injured in a wreck with an uninsured or

underinsured motorist. I thought I had that coverage for the July 2001 accident that

was caused by Ms. Pyles, and that belief was reinforced by what the Encompass

adjuster told me in March or April of 2002. My review of the policy declarations

also supported that belief.

In its May 27, 2005 Memorandum and Order granting Encompass’s Motion For Summary

Judgment, the trial court stated the following in regard to Holt’s affidavit:

The plaintiffs also rely on estoppel. The plaintiffs correctly point out that an insurer

could be estopped to deny coverage for any loss by misrepresentation of its agents

upon which the insured reasonably relies. See Bill Brown Construction v. Glenn

Falls Insurance, 818 S.W.2d 1, 4-12 (Tenn. 1991). There is no doubt that if the

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insurance agent had told the plaintiffs that the umbrella policy would cover UM

claims the movants would be estopped to deny that coverage. The statement of the

agent, however, is not to that effect. According to the affidavit of the plaintiff, David

Holt, based upon the agent’s statement that the policy limits would have to be

“synchronized.” The agent “raised the limits of my uninsured motorist coverage.”

Mr. Holt then goes on to state “I believe that my excess coverage protection would

apply to uninsured motorist claims because the policy was changed to make the

uninsured motorist limits the same as the bodily injury limits.” The Court does not

interpret this as meaning that the insurance agent promised or stated that the umbrella

policy would contain extra UM coverage. The affidavit returns again to his

subjective belief that his umbrella policy somehow provides UM coverage. Such is

not the case.

The main issue regarding Holt’s affidavit is whether it is sufficient to show that there is a

genuine issue of material fact that should have precluded the Trial Court from granting Encompass’s

Motion For Summary Judgment. Appellants the Holts allege that Encompass took an unreasonable

amount of time in raising its policy exclusion defense, and therefore Encompass is estopped from

requiring Holt to recollect, with more precision than already contained in his affidavit, the exact

statements of the Encompass agent. Encompass, on the other hand, alleges that Holt’s affidavit fails

to establish either that Holt reasonably relied upon the statements of the agent to his detriment or that

a genuine issue of material fact exists as to this issue. Encompass argues that this Court must look

to the actual representations made by the agent, instead of any subjective conclusions Holt may have

drawn.

Justice Brennan’s explanation of the importance of the sufficiency of evidence in a summary

judgment proceeding provides some guidance on the matter. Such explanation appears in Celetex

v. Catrett, 477 U.S. 317, 331(U.S.1986):

If the burden of persuasion at trial would be on the nonmoving party, the party

moving for summary judgment may satisfy Rule 56's burden of production in either

of two ways . . . . Second, the moving party may demonstrate to the court that the

nonmoving party’s evidence is insufficient to establish an essential element of the

nonmoving party’s claim. See 10A Wright § 2727, pp 130-131; Louis, Federal

Summary Judgment Doctrine: A Critical Analysis, 83 Yale L. J. 745, 750 (1974)

(hereinafter Louis). If the nonmoving party cannot muster sufficient evidence to

make out its claim, a trial would be useless and the moving party is entitled to

summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., ante, at 249.

The Tennessee Supreme Court has also noted the importance of the sufficiency of evidence

in summary judgment proceedings:

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In our view, the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial. In

such a situation, there can be no genuine issue as to any material fact, since a

complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.

Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn.1993).

The trial court was correct in granting summary judgment to Defendant on the estoppel claim.

The only evidence in the record on which estoppel is asserted is the affidavit of David Holt. This

affidavit asserted in part:

3. I received and reviewed the declarations/summary of my new policy with a

AAA Auto Club agent before the accident with Barbara Pyles.

Pages one and three of this five-page “new policy coverage summary” are vital to the estoppel

question and are reproduced as follows:

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-12-

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Page one of the summary clearly shows coverages for bodily injury, property damage,

medical expense, uninsured motorist bodily injury and uninsured motorist property damage.

On page three of the summary, under “Optional Excess Protection,” the coverages are

“EXCESS LIABILITY: applies to all ‘covered exposures and additional covered exposures’” The

limits under this coverage are $1 million, and the coverage is plainly for “excess liability.” In order

to trigger the “excess liability” coverage, the insured must maintain limits in the main policy of either

a single limit $500,000 coverage for each accident or a split limit of $250,000 for bodily injury to

each person and $500,000 bodily injury for each accident together with $100,000 property damage

for each accident. The “Optional Excess Protection” provisions of the summary say nothing at all

about uninsured motorist coverage. Uninsured motorist coverage in the main policy, which is

separately listed under the coverages in the main policy, is not so listed among the “minimum

retained limit” triggering the excess liability coverage under the $1 million “Optional Excess

Protection.”

It is clear that “excess liability” means liability of the insured. It applies to all “covered

exposures” and “additional covered exposures.” The insured has no “exposures” where uninsured-

underinsured motorist coverage is concerned. Basically, first-party insurance provides insurance

money to the insured because of the “exposure” of some at-fault third party who injures the insured.

Any doubt as to this limitation of the umbrella coverage to “excess liability” is made

indisputable by that same third page of the “New Policy Coverage Summary” wherein it is provides:

Your policy is subject to the following forms and endorsements:

...

G/18544/F (10-98) Optional Excess Liability Coverage

When one looks to form G-18544F (10-98) Optional Excess Liability Coverage, it is clearly

stated:

LOSSES WE DO NOT COVER

We do not provide any coverage under this endorsement for:

1. Benefits payable to you or anyone else under any:

a. No-fault;

b. Uninsured or Underinsured Motorist;

c. Medical Expense or Medical Payments; or

d. Motorcycle Guest Passenger Liability;

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coverage, or any similar coverage.

In order to work an estoppel in this case wherein Plaintiff relies upon representations and

misrepresentations by an agent to compel coverage by an insurance company, this Court has held:

We address first the issue of estoppel. Appellant contends that the trial court

erred in granting Appellees’ motion for summary judgment on the ground that

Appellant is estopped to deny the Robinsons continuous liability insurance coverage.

Under Tennessee law, estoppel is not favored and it is the burden of the party seeking

to invoke the doctrine to prove each and every element. Bokor v. Holder, 722

S.W.2d 676 (Tenn.App.1986). The elements of equitable estoppel were set forth by

this Court in Consumer Credit Union v. Hite, 801 S.W.2d 822 (Tenn.App.1990),

which held:

The essential elements of an equitable estoppel as related to the party

estopped are said to be (1) Conduct which amounts to a false

representation or concealment of material facts, or, at least, which is

calculated to convey the impression that the facts are otherwise than,

and inconsistent with, those which the party subsequently attempts to

assert; (2) Intention, or at least expectation that such conduct shall be

acted upon by the other party; (3) Knowledge, actual or constructive

of the real facts. As related to the party claiming the estoppel they are

(1) Lack of knowledge and of the means of knowledge of the truth as

to the facts in question; (2) Reliance upon the conduct of the party

estopped; and (3) Action based thereon of such a character as to

change his position prejudicially, 19 Am.Jur.Estoppel Sec. 42, pp.

642-643.

Hite, 801 S.W.2d 822 at 825 (citing Callahan v. Town of Middleton, 41 Tenn.App.

21, 292 S.W.2d 501 (1954)).

The burden of proof is on the insured to prove that a misrepresentation was

made and that the insured reasonably relied upon the misrepresentation. Bill Brown

Constr. Co. v. Glens Falls Ins. Co., 818 S.W.2d 1 (Tenn.1991).

Robinson v. Tennessee Farmers Mut. Ins., 847 S.W.2d 559, 563 (Tenn.Ct.App.1993).

-15-

As did the trial court, we must separate what the agent actually told Mr. Holt from what Mr.

Holt assumed therefrom. The entire proof from his affidavit upon which estoppel is urged is the

following excerpt:

The agent told me that Tennessee did not require drivers to have liability insurance

and that a high percentage of Tennessee drivers were uninsured. The agent also told

me that, in order to make my policy work, the policy limits would have to be

synchronized. When I talked with the agent, I had no opportunity to review the