The opinion
IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
_______________________________________________
JAMES R. FRUGE and JANE FRUGE,
Plaintiffs-Appellants,
FILED
Shelby Circuit #49803
Vs. C.A. No. 02A01-9408-CV-00198
October 5, 1995
JOHN DOE and JANE DOE,
Cecil Crowson, Jr.
Defendants-Appellees. Appellate C ourt Clerk
_________________________________________________________________________
FROM THE SHELBY COUNTY CIRCUIT COURT
THE HONORABLE GEORGE H. BROWN, JR., JUDGE
R. Sadler Bailey of Memphis
For Appellants
Robert M. Fargarson and Martin Zummach of Neely,
Green, Fargarson & Brooke of Memphis
For State Farm Insurance Company
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, JUDGE
CONCUR:
DAVID R. FARMER, JUDGE
BROOKS MCLEMORE, SPECIAL JUDGE
This appeal involves a suit seeking recovery under the uninsured motorist
provision of a liability insurance policy. Plaintiffs, James R. Fruge and Jane Fruge,
appeal from the order of the trial court granting summary judgment to the
unnamed defendant-appellee, State Farm Insurance Company.
The facts are virtually undisputed. On November 8, 1991, between 6:00
and 6:30 p.m., plaintiffs were involved in a one-car accident that occurred
when the automobile driven by Mr. Fruge and in which Mrs. Fruge was a
passenger was merging with westbound traffic on the Hernando-DeSoto Bridge
in Memphis, Tennessee. As Mr. Fruge was looking left to ascertain whether he
could enter the traffic flow safely, Mrs. Fruge suddenly warned him of a stopped
automobile in their path of travel. When Mr. Fruge attempted to swerve and
avoid the automobile, he lost control of his vehicle, crossed two lanes of traffic,
struck the south-side retaining wall of the bridge, and then traveled back across
two lanes of westbound traffic. The automobile finally came to rest against the
north-side retaining wall. There was no contact between the Fruge automobile
and any other vehicle. Both Mr. and Mrs. Fruge sustained personal injuries as a
result of the accident.
Pursuant to T.C.A. § 56-7-1206 (b) plaintiffs sued their uninsured motorist
carrier, State Farm Insurance Company. On motion for summary judgment, the
trial court dismissed the suit, and this appeal ensued. The only issue is whether
the trial court erred in granting summary judgment to State Farm.
A trial court should grant a motion for summary judgment only if the
movant demonstrates that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law. Tenn.R.Civ.P. 56.03;
Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80
(Tenn. App. 1992). The party moving for summary judgment bears the burden
of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d
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at 210. When a motion for summary judgment is made, the court must consider
the motion in the same manner as a motion for directed verdict made at the
close of the plaintiff's proof; that is, "the court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence." Id. at
210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no
genuine issue of material fact, the nonmoving party
must then demonstrate, by affidavits or discovery
materials, that there is a genuine, material fact dispute
to warrant a trial. [citations omitted]. In this regard,
Rule 56.05 provides that the nonmoving party cannot
simply rely upon his pleadings but must set forth
specific facts showing that there is a genuine issue of
material fact for trial.
Id. at 211. (emphasis in original).
The summary judgment process should only be used as a means of
concluding a case when there are no genuine issues of material fact, and the
case can be resolved on the legal issues alone. Id. at 210 (citing Bellamy v.
Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary judgment is not
to be used as a substitute for a trial of genuine and material factual issues. Byrd,
847 S.W.2d at 210 (citing Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61
(Tenn. 1987)). Where a genuine dispute exists as to any material fact or as to the
conclusions to be drawn from those facts, a court must deny a motion for
summary judgment. Byrd, 847 S.W.2d at 211 (citing Dunn, 833 S.W.2d at 80).
This case is controlled by T.C.A. § 56-7-1201 (e) (1994), which provides:
(e) 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
recovery 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
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(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.
In support of its motion for summary judgment, State Farm relies upon the
pleadings and plaintiffs' depositions in which plaintiffs state that there was no
physical contact between their vehicle and any other vehicle. In response to
the motion for summary judgment, plaintiffs' filed the affidavit of W. R.
Rutherford, a Memphis police officer who investigated the accident. The
affidavit states:
1) My name is Willie Ray Rutherford. I have been
employed by the Memphis Police Department as a
patrolman for the last twenty six (26) years and have
been a member of the motorcycle division since 1975.
2) As part of my job duties with the Memphis Police
Departm ent, I am dispatched to various
circumstances involving motor vehicles and traffic
problems. After arriving on the scene where property
damage and/or personal injury has been sustained as
a result of the motor vehicle operation, I conduct an
investigation of the physical surroundings, observe the
automobile/automobiles involved and interview any
driver(s) or passenger(s) or the involved vehicle(s) and
any witness(es) that could or might have been
present. My findings are reduced to written form on a
preprinted Tennessee Uniform Traffic Accident form.
3) On November 8, 1991 at approximately 6:45 p.m., a
call was received by the Memphis Police Department
regarding a traffic problem on or near the Hernando-
DeSoto Bridge involving multiple vehicles. I was
dispatched and arrived on the scene at
approximately 7:00 p.m. Due to the extent of vehicle
involvement and the need to clear the roadway as
quickly as possible, I called for assistance to secure the
scene.
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4) 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.
5) I prepared at least two accident reports (#7188066
and #7188067) involving the incident. Both reports
reference the stalled vehicle in the westbound lanes
of traffic with no mention of the name of the driver
thereof.
Plaintiffs assert that the Rutherford affidavit creates a genuine issue of
material fact that precludes the grant of summary judgment. The plaintiffs
argue that even though there was no physical contact between their
automobile and the alleged abandoned car, they can prove the existence of
the unknown motorist by clear and convincing evidence. Plaintiffs contend that
the Rutherford affidavit establishes the existence of an unknown motorist by
clear and convincing evidence; therefore, the requirements of T.C.A. § 56-7-
1201 (e) are satisfied, and they are entitled to recover from State Farm. We must
respectfully disagree.
The affidavit establishes that Officer Rutherford did not arrive on the scene
of the accident that he was investigating until approximately 7 p.m. Plaintiffs
established the time of their accident between 6:00 and 6:30 p.m. Therefore,
there was at least a time differential of thirty minutes from the time of the
accident to the time that Rutherford observed an unoccupied vehicle near the
accident scene. Since Officer Rutherford had no personal knowledge of the
cause of the accident, his conclusion as to the cause is not admissible evidence
under Tenn.R.Evid. 602; therefore, it cannot be considered in connection with
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the motion for summary judgment. Tenn.R.Civ.P. 56.05.
To determine what an insured is required to show to satisfy T.C.A. § 56-7-
1201 (e) necessitates a construction of the statute. The rule of statutory
construction to which all others must yield is that the intention of the legislature
must prevail. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 498 (Tenn.
App. 1983); City of Humboldt v. Morris, 579 S.W.2d 860, 863 (Tenn. App. 1978).
"[L}egislative intent or purpose is to be ascertained primarily from the natural and
ordinary meaning of the language used, when read in the context of the entire
statute, without any forced or subtle construction to limit or extend the import of
the language." Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977). The Court
has a duty to construe a statute so that no part will be inoperative, superfluous,
void or insignificant. The Court must give effect to every word, phrase, clause,
and sentence of the Act in order to achieve the Legislature's intent, and it must
construe a statute so that no section will destroy another. City of Caryville v.
Campbell County, 660 S.W.2d 510, 512 (Tenn. App. 1983); Tidwell v. Collins, 522
S.W.2d 674, 676 (Tenn. 1975).
Prior to 1989, an insured could recover uninsured motorist benefits under
Tennessee's uninsured motorist statute only if there was actual physical contact
between the "phantom" automobile and the insured/insured's automobile.
Obviously, the physical contact requirement was an effort on the part of the
Legislature to prevent fraudulent claims by preventing an insured from alleging
that the negligence of some "phantom" driver caused the insured's one-car
accident, when in fact, the sole cause of the accident was the negligence of
the insured. In 1989, the Legislature apparently recognized that there would be
cases where "phantom" vehicles did in fact cause the insured's injuries, but the
"phantom" vehicle did not actually make contact with the insured/insured's
automobile. In an effort to prevent legitimate uninsured motorist claims from
being denied in these cases, the Legislature added § (e)(1)(B) to T.C.A. § 56-7-
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1201.
The statute, as it now exists, requires the insured to establish "the existence
of such unknown motorist [the unknown motorist that caused injury to the
insured] . . . by clear and convincing evidence, other than any evidence
provided by occupants in the insured vehicle." In our opinion the statute is clear
in its requirements that the insured prove by clear and convincing evidence
both the existence of the "phantom" vehicle, and that the "phantom" vehicle
caused the injuries to the insured.
In the instant case, the affidavit of Officer Rutherford does not, in our
opinion, prove by clear and convincing evidence the existence of an
abandoned automobile that caused the Fruges's injuries. The part of the
affidavit which is admissible into evidence establishes, at most, that at
approximately 7 p.m. there was a vehicle blocking part of the roadway near the
vicinity of the accident. There is no evidence, other than that from the plaintiffs
(the occupants of the insured vehicle), that there was an unattended, unlighted
vehicle blocking traffic lanes at 6:30 p.m. which caused the accident.1
While we recognize that the Fruges's account of the accident is plausible,
the stringent requirements of proof established by the Legislature preclude a
holding that would provide for uninsured motorist benefits in this case.
Accordingly, the order of the trial court granting summary judgment to State
Farm Insurance Company is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed against
the appellants.
____________________________________
W. FRANK CRAWFORD, JUDGE
1
It appears from the plaintiffs' depositions that there was a motorist present
at the time of the collision that could have established the existence of unknown
operator or driver that caused an abandoned vehicle to be left in a dangerous
position near the accident scene, but no proof was presented from this person.
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CONCUR:
________________________________
DAVID R. FARMER, JUDGE
__________________________________
BROOKS MCLEMORE, SPECIAL JUDGE
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