The opinion
IN THE COURT OF APPEALS OF TENNESSEE FILED
AT NASHVILLE March 29, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
ALI AL-FATLAWY, ) M1999-00195-COA-R9-CV
)
Plaintiff-Appellee, )
)
)
v. )
)
) INTERLOCUTORY APPEAL PURSUANT TO
) RULE 9, T.R.A.P., FROM THE
JOHN DOE, ) DAVIDSON COUNTY CIRCUIT COURT
)
Defendant. )
)
)
CHICAGO INSURANCE COMPANY, )
)
Uninsured Motorist ) HONORABLE CAROL L. SOLOMAN,
Carrier-Appellant. ) JUDGE
For Appellant For Appellee
O. WADE NELSON TERRY R. CLAYTON
Smith & Cashion, PLC Nashville, Tennessee
Nashville, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
We granted the Rule 9, T.R.A.P., application of Chicago
Insurance Company (“the Insurance Company”) in order to determine
if the trial court erred when it denied the Insurance Company’s
motion to dismiss. We find and hold that the Insurance Company
is entitled to summary judgment. Accordingly, we reverse the
judgment below and remand to the trial court for the entry of an
order dismissing the plaintiff’s complaint to the extent that it
seeks to recover against the Insurance Company.
This case arises out of personal injuries sustained by
the plaintiff, Ali Al-Fatlawy, in an automobile accident in
Davidson County. At the time of the accident, the plaintiff was
a guest passenger in a vehicle driven by Raed J. Petros. Mr.
Petros was insured by the Insurance Company under a policy of
automobile insurance that included uninsured motorist (“UM”)
coverage.
As a result of the accident, the plaintiff filed suit
against a single defendant -- an unknown party identified in the
complaint as John Doe. The Insurance Company was served with
process pursuant to the provisions of T.C.A. § 56-7-1206(a)
(Supp. 1999), a part of the statutory scheme pertaining to
uninsured motorist coverage. As pertinent here, the complaint
alleges as follows:
That on or about November 23, 1997 at
approximately 02:30 a.m. plaintiff...was a
passenger in a 1989 BMW driven by Raed J.
Petros...[H]e was driving west on Madison
Blvd. in Nashville, Davidson County,
Tennessee.
2
At the same time defendant, John Doe, was
driving a vehicle the make and model [sic]
was unknown and is still unknown by the
plaintiff, east on Madison Blvd., in the same
lane that Mr. Petros was driving in.
While Mr. Petros was driving his vehicle west
on Madison Blvd., the defendant, John Doe
came upon his vehicle [and] in order to avoid
the collision Mr. Petros turned the wheel of
his vehicle quickly to the right, thereby
running off the road and colliding into a
tree.
It was and is the theory of the plaintiff that the negligence of
John Doe was the sole proximate cause of the accident and that
the UM coverage under Mr. Petros’ policy with the Insurance
Company is applicable to the plaintiff’s claim for personal
injuries. He relies upon the provisions of T.C.A. § 56-7-1201(e)
(Supp. 1999):
If the owner or operator of any motor vehicle
which causes bodily injury or property damage
to the insured is unknown, the insured shall
have no right to recover under the uninsured
motorist provision unless:
(1)(A) Actual physical contact shall have
occurred between the motor vehicle owned or
operated by such unknown person and the
person or property of the insured; or
(B) the existence of such unknown motorist is
established by clear and convincing evidence,
other than any evidence provided by occupants
in the insured vehicle;
(2) The insured or someone in the insured’s
behalf shall have reported the accident to
the appropriate law enforcement agency within
a reasonable time after its occurrence; and
(3) The insured was not negligent in failing
to determine the identity of the other
vehicle and the owner or operator of the
other vehicle at the time of the accident.
3
The Insurance Company takes the position that the complaint shows
on its face that there was no “[a]ctual physical contact” between
the vehicles involved in this accident. See T.C.A. § 56-7-
1202(e)(1)(A) (Supp. 1999). It further contends that the
plaintiff cannot prove the necessary factual predicate to
establish the alternative basis for UM coverage under the
statute.
Both of the parties cite and rely upon the case of
Fruge v. Doe, 952 S.W.2d 408 (Tenn. 1997). We agree that Fruge
controls our decision in this case. The facts of that case, as
taken from the opinion, are as follows:
On November 8, 1991, shortly before 6:30
p.m., the plaintiffs, James R. Fruge and Jane
Fruge, husband and wife, sustained personal
injuries in an automobile accident which
occurred as the vehicle operated by Mr. Fruge
entered Interstate 40 from Front Street in
Memphis. According to their deposition
testimony filed by the insurer, State Farm
Insurance Company, in support of its motion
for summary judgment, their vehicle was
proceeding along the approach ramp to I-40
when Mrs. Fruge warned Mr. Fruge, who was
watching the traffic approaching on I-40 from
behind his vehicle, that a parked vehicle
with no lights was obstructing their lane of
traffic. Mr. Fruge swerved his vehicle in
order to avoid striking the parked vehicle
and thereby lost control of his vehicle,
which then crashed into a retaining wall.
Immediately thereafter, other vehicles were
involved in a collision at the same location.
The plaintiffs’ vehicle did not make physical
contact with the parked vehicle or any of the
other vehicles. The plaintiffs do not know
of any eyewitnesses to their accident.
Id. at 409.
4
As indicated in the quoted excerpt, the insurance
company in Fruge filed a motion for summary judgment, claiming
that the UM coverage of its policy did not extend to the facts of
that case. In response to the insurance company’s motion, the
plaintiff in Fruge filed the affidavit of the investigating
officer. The affidavit provided, in pertinent part, as follows:
While completing my routine investigation, I
noted the probable source of the resulting
collisions to be a brown Ford Thunderbird
automobile that had apparently ran out of gas
and was blocking one or more lanes of
westbound traffic. Although vehicles either
struck the retaining wall or struck other
vehicles, the abandoned automobile was not
struck by any of the involved parties. The
abandoned automobile was unlicensed, was
without a driver and had to be towed from the
scene by wrecker so that the roadway could be
finally cleared. I was unable to identify
the driver of the abandoned vehicle and the
vehicle was not claimed before being towed to
the City Lot for storage.
Id. at 410.
In reversing the trial court’s grant of summary
judgment to the insurance company, the Supreme Court held that
the investigating officer’s affidavit reflected testimony that
was “probative of the existence of a motor vehicle the owner and
operator of which are unknown.” Id. at 412. (Emphasis added).
The Supreme Court went on to note that “[a] jury could find such
evidence is clear and convincing.” Id. The Court concluded that
summary judgment was not appropriate in view of the officer’s
affidavit.
5
As applicable to the facts of this case, Fruge
expressly holds that “[i]n order to prevail on a claim for
uninsured motorist benefits, the insured1 must meet the
requirements of subsections 1(A) or 1(B) and (2) and (3) [of
T.C.A. § 56-7-1201(e)].” Id. at 410-11. (Emphasis added).
In the instant case, the plaintiff acknowledges that he
cannot bring his case within the purview of subsection (1)(A) of
T.C.A. § 56-7-1201(e), because there was no “[a]ctual physical
contact” between the vehicles as required by that part of the
statute. However, he predicates his entitlement to relief on the
alternative basis set forth at T.C.A. § 56-7-1201(e)(1)(B), (2)
and (3). He relies on the affidavit of Officer James Bledsoe,
who investigated this accident. Officer Bledsoe’s affidavit
states, in pertinent part, as follows:
I arrived at the scene of the accident at
0234 hours and observed what I later came to
know as a red 1989 BMW license number
Tennessee 192-ZXR, front left fender embelled
[sic] in a tree near the intersection of East
Meade Avenue.
I spoke to Mr. Raed J. Petros who identified
himself as the driver of the 1989 BMW. Mr.
Petros stated that he was traveling west on
Madison Blvd. when he observed a car in his
lane of traffic traveling east.
Mr. Petros told me he swerved off of the road
to his right to avoid a collision with the
vehicle and struck a tree.
Mr. Petros told me that he could not describe
the vehicle and that he did not know the
owner of the car.
1
The insurance company in the instant case admits that the plaintiff --
being a guest passenger -- is covered under its policy with Mr. Petros.
6
The Insurance Company filed a motion to dismiss, noting
that the plaintiff’s complaint fails to allege that there had
been a collision between the vehicles. In addition, the
Insurance Company contends that, in the absence of allegations
bringing this case within the provisions of T.C.A. § 56-7-
1201(e)(1)(B), (2) and (3), the complaint fails to state a cause
of action. As previously indicated, the plaintiff filed Officer
Bledsoe’s affidavit in opposition to the Insurance Company’s
motion.
While we agree that the complaint does not allege
contact between the two vehicles, we do not find it necessary to
determine whether the complaint alleges a cause of action. When
the plaintiff filed the affidavit of Officer Bledsoe and the
trial court considered it,2 the Insurance Company’s motion to
dismiss became one for summary judgment, subject to the
provisions of Rule 56, Tenn.R.Civ.P. See Rule 12.02,
Tenn.R.Civ.P.
We review the trial court’s denial of summary judgment
against the standard of Rule 56.04, Tenn.R.Civ.P., which
provides, in pertinent part, as follows:
the judgment shall be rendered forthwith 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.
2
The parties agree that the trial court considered the affidavit in
making its decision in this case.
7
Since our inquiry involves a question of law, there is no
presumption of correctness as to the trial court’s judgment.
Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Hembree v.
State, 925 S.W.2d 513, 515 (Tenn. 1996). In making our
determination, we must view the evidence in a light most
favorable to the nonmoving party, and we must draw all reasonable
inferences in favor of that party. Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993). Summary judgment is appropriate only if no
genuine issues of material fact exist and if the undisputed
material facts entitle the moving party to a judgment as a matter
of law. Rule 56.04, Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 211.
Since this is a no-contact accident, if the plaintiff
is to be successful at trial, he must be prepared to establish
“[t]he existence of such unknown motorist...by clear and
convincing evidence, other than any evidence provided by
occupants in the insured vehicle.” T.C.A. § 56-7-1201(e)(1)(B).
(Emphasis added).
The plaintiff contends that Officer Bledsoe’s affidavit
makes out a dispute regarding the existence of the unknown
motorist, thereby making summary judgment inappropriate. Citing
Fruge, he claims that it is for the jury to decide whether there
is clear and convincing evidence of the existence of the other
driver. This position is at odds with the language of the
statute mandating that, in a case involving a no-contact
accident, proof of the existence of the unknown driver cannot be
based on “any evidence provided by occupants in the insured
vehicle.” See T.C.A. § 56-7-1201(e)(1)(B). When Officer
8
Bledsoe’s affidavit is stripped of statements made by Mr. Petros
to the officer, i.e., stripped of “evidence provided by [an]
occupant[] in the insured vehicle,” it contains no evidence, let
alone clear and convincing evidence, of the existence of the
unknown motorist. Rather than defeating summary judgment for the
Insurance Company, the affidavit, coupled with the plaintiff’s
admission of no third-party witnesses to the accident, makes out
the Insurance Company’s entitlement to summary judgment. It is
undisputed that the plaintiff cannot prove the existence of the
unknown motorist except through the testimony of an occupant of
the insured vehicle. Under the statute, such testimony is not
sufficient, as a matter of law, to prove this critical fact.
Fruge is of no help to the plaintiff in the instant
case. In Fruge, a witness other than one of the occupants in the
insured vehicle testified from personal knowledge that there was
a vehicle -- with its lights off -- sitting in and blocking a
part of the road in the general vicinity of wrecked vehicles
including the plaintiff’s vehicle. In the instant case, the
investigating officer has no personal knowledge regarding the
existence of an unknown motorist. All of his information about
the unknown motorist came from an “occupant[] in the insured
vehicle.” See T.C.A. § 56-7-1201(e)(1)(B).
The Insurance company was and is entitled to summary
judgment. Accordingly, the judgment of the trial court is
reversed and this case is remanded to the trial court for the
entry of an order dismissing the plaintiff’s complaint as to the
Insurance Company. Costs on appeal are taxed to the appellee.
9
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
D. Michael Swiney, J.
10