James Fortune v. Unum Life Insurance Company of America

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 28, 2010 Session

JAMES FORTUNE v. UNUM LIFE INSURANCE COMPANY OF
AMERICA, ET AL.

Direct Appeal from the Circuit Court for Shelby County
No. CT-005641-06 Donna Fields, Judge

No. W2009-01395-COA-R3-CV - Filed October 12, 2010

This appeal arises out of an alleged wrongful denial of long term disability benefits. The
plaintiff/appellant filed suit asserting multiple causes of action against an insurance company
that contracted to provide long term disability insurance to employees of the City of
Germantown. The defendants/appellees, the insurance company and its parent corporation,
moved for summary judgment arguing, inter alia, that the applicable statutory and
contractual limitations periods barred each of the plaintiff’s causes of action. The trial court
agreed and granted summary judgment in favor of the defendants. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Daniel A. Seward, Memphis, Tennessee, for the appellant, James Fortune, as substituted by
Bettye Bedwell, Bankruptcy Trustee.

S. Russell Headrick and Leigh M. Chiles, Knoxville, Tennessee, for the appellees, Unum
Life Insurance Company of America and The Unum Group, f/k/a Unum Provident
Corporation.

OPINION

I. Background and Procedural History

The following facts are undisputed. Unum Life Insurance Company of America
(“Unum Life”) issued a group long term disability policy to the City of Germantown,
Tennessee on June 1, 1994. James Fortune (“Fortune”) was insured under this policy when
he became disabled on or about June 15, 1999. Unum Life paid long term disability benefits
to Fortune for a period but terminated his claim after concluding he was ineligible to receive
continued benefits. Unum Life informed Fortune’s then counsel of the termination by letter
dated October 19, 2001, explaining that Fortune’s benefits would cease on October 31, 2001.

More than three years later, Unum Life entered into a “Regulatory Settlement
Agreement” (“RSA”) with state insurance regulators, including the Commissioner of the
Tennessee Department of Commerce and Insurance, and the United States Department of
Labor. The RSA, among other things, created a “plan of corrective action” to address a
number of regulatory and statutory concerns raised regarding prior claim assessments. It also
instituted improved claim handling procedures for future claim assessments. Pertinent to this
appeal, the RSA established a claim reassessment process through which an identified class
of claimants could receive de novo review of prior assessments. Importantly, however, the
RSA specifically stated that neither it “nor any of the relief to be offered under this
Agreement shall be interpreted to alter in any way the contractual terms of any policy, or to
constitute a novation of any policy.”

On January 13, 2005, the Claim Reassessment Unit of Unum Life’s parent
corporation, UnumProvident Corporation (now known as “Unum Group”), mailed Fortune
notice that his claim for long term disability benefits was eligible for reassessment under the
terms of the RSA. Fortune soon thereafter executed a “Request to Participate” form
indicating his desire to participate in the claim reassessment process. After receiving further
correspondence regarding his claim, Fortune executed a waiver and release containing the
following language:

[A]ny applicable statute of limitations is tolled during the pendency of the
reassessment of my claim; however, I understand that my participation in this
Claim Reassessment Process will not revive or reinitiate the statute of
limitations with respect to the previous claim decision.

The Claim Reassessment Unit thereafter initiated a review of Fortune’s claim, eventually
informing Fortune’s present counsel by letter dated April 11, 2006, that it concurred in the
original decision to deny Fortune continued disability benefits because he did not meet the
definition of disability contained in the policy after October 31, 2001.

Fortune commenced this action against Unum Life in October 2006.1 Fortune alleged

1
The parties’ briefs indicate that Fortune filed his initial complaint solely against Unum Life, Unum
(continued...)

-2-
in his complaint and amended complaint that: (1) Unum engaged in unfair and deceptive acts
or practices in violation of the Tennessee Consumer Protection Act (“TCPA”) when it denied
and continued to deny Fortune’s claim; (2) Unum knowingly, intentionally, and in bad faith
denied and continued to deny Fortune’s claim; (3) Unum engaged in fraud and
misrepresentation when it denied and continued to deny Fortune’s claim; (4) Unum
knowingly concealed and continued to conceal relevant information from Fortune regarding
his claim; and (5) Unum committed breach of contract when it denied Fortune’s claim in
October 2001 and again intentionally violated the terms of the policy in April 2006. Fortune
alleged that he incurred losses and injuries as a result of Unum’s actions including but not
limited to loss of past due benefits plus interest, loss of his life insurance policy, loss of
retirement benefits due to his forced early retirement, pain and suffering, and emotional
distress. He requested compensatory damages and punitive damages, as well as treble
damages and attorney’s fees for the alleged violation of the TCPA.

Unum subsequently filed a motion for summary judgment arguing, inter alia, that
each cause of action asserted in Fortune’s complaint was time-barred. Unum argued that the
lengthiest statutory or contractual limitations period applicable to the alleged causes of action
was three years and that Fortune had filed his complaint nearly five years after his claims
accrued. The trial court conducted a hearing on the motion and granted summary judgment
in favor of Unum, finding “no genuine issue as to any material fact, and that Defendants are
entitled to judgment as a matter of law because all claims contained in Plaintiff’s complaint
are barred by the applicable contractual and statutory periods of limitations.” Fortune, as
substituted by bankruptcy trustee Bettye Bedwell (“the Trustee”), later filed a motion to alter,
amend, or vacate the court’s judgment, which the trial court denied.2 Following denial of the
motion, the Trustee timely appealed.

1
(...continued)
Life removed the case to the United States District Court for the Western District of Tennessee, and the
federal court remanded the case back to Shelby County Circuit Court after Fortune filed an amended
complaint adding Unum Group as a defendant. The record, however, contains only the original complaint
filed in state court against Unum Life. Although the record does not contain an amended complaint adding
Unum Group as a defendant, the defendants’ answer nonetheless purports to respond to Fortune’s “Amended
Complaint” and lists Unum Life and Unum Group as defendants. It appears, therefore, that Unum Group was
made a party to this lawsuit. For convenience, we will collectively refer to Unum Life and Unum Group as
“Unum” throughout the remainder of this opinion. We will also assume in light of the arguments before the
trial court and this Court that Fortune’s amended complaint reproduced the allegations of his original
complaint. To the extent Fortune’s amended complaint may have alleged additional causes of action, they
were neither addressed before the trial court nor presented on appeal.
2
The record shows that United States Bankruptcy Judge Paulette J. Delk authorized Fortune’s
attorney, Daniel Seward, to represent the Trustee in this case following Fortune’s filing for Chapter 7
bankruptcy.

-3-
 II. Issues Presented

The issues before this Court, as we perceive them, are:

(1) Whether Unum alleged undisputed facts to establish that an agreed
three-year limitations period bars Fortune’s claim for breach of contract
where Unum did not allege undisputed facts establishing that it
apprised Fortune of the policy’s limitations provision;

(2) Whether the reassessment of Fortune’s claim revived his claim,
renewed his policy, or otherwise constituted a new policy of insurance
such that his breach of contract action did not accrue until the Claim
Reassessment Unit concluded its review in April 2006; and

(3) Whether Unum presented undisputed facts to establish that the
applicable statutes of limitations barred Fortune’s statutory and tort
causes of action where Fortune filed a sworn affidavit stating that he
learned of these causes of action within one year of the filing of his
complaint.

III. Standard of Review

This Court reviews a trial court’s decision on a motion for summary judgment de novo
with no presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.
2008) (citing Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004)). We review the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in favor of the nonmoving party. Id. (citing Staples v. CBL & Assocs., 15 S.W.3d
83, 89 (Tenn. 2000)).

IV. Analysis

Rule 56 of the Tennessee Rules of Civil Procedure provides that a party is entitled to
summary judgment if the “pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits . . . 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. The moving party has the ultimate burden of demonstrating that summary
judgment is appropriate, Martin, 271 S.W.3d at 83 (citing Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn. 1993)), and consequently bears the initial burden of providing a properly supported
motion showing there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law, id. (citing Staples, 15 S.W.3d at 88; McCarley v. W. Quality

-4-
Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). “The moving party may make the required
showing and therefore shift the burden of production to the nonmoving party by either: (1)
affirmatively negating an essential element of the nonmoving party’s claim; or (2) showing
that the nonmoving party cannot prove an essential element of the claim at trial.” Id. (citing
Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008); McCarley, 960 S.W.2d at 588;
Byrd, 847 S.W.2d at 215 n.5). The burden-shifting analysis differs if the moving party bears
the burden of proof at trial. Hannan, 270 S.W.3d at 9 n.6. “For example, a plaintiff who
files a motion for partial summary judgment on an element of his or her claim shifts the
burden by alleging undisputed facts that show the existence of that element and entitle the
plaintiff to summary judgment as a matter of law.” Id. n.6. “Similarly, a defendant asserting
an affirmative defense . . . shifts the burden of production by alleging undisputed facts that
show the existence of the affirmative defense.” Id. n.6.

A party will not succeed on a motion for summary judgment merely by asserting that
the nonmoving party is without evidence to support its claim. Martin, 271 S.W.3d at 83-84
(citing Byrd, 847 S.W.2d at 215). “The moving party must either produce evidence or refer
to evidence previously submitted by the nonmoving party that negates an essential element
of the nonmoving party’s claim or shows that the nonmoving party cannot prove an essential
element of the claim at trial.” Id. at 84 (citing Hannan, 270 S.W.3d at 5). Production of
evidence raising doubts about the merits of the nonmoving party’s claim will not suffice. Id.
(citing McCarley, 960 S.W.2d at 588). “[T]he moving party must point to evidence that
tends to disprove an essential factual claim made by the nonmoving party.” Id. (citing Blair,
130 S.W.3d at 768). If the moving party does not carry its initial burden, the nonmoving
party has no obligation to produce evidentiary materials in support of its position. Id. (citing
McCarley, 960 S.W.2d at 588; Staples, 15 S.W.3d at 88).

Once a moving party carries its initial burden, the focus of the inquiry shifts to the
nonmoving party who must “affirmatively show facts either (a) supporting the elements of
its claim or defense if it has the burden of persuasion, or (b) negating the movant’s claim or
defense if the movant has the burden of persuasion.” Lawrence A. Pivnick, Tennessee
Circuit Court Practice § 27:5, at 382-83 & n.48 (2010) (collecting cases). The Tennessee
Supreme Court has articulated four methods by which the nonmoving party can satisfy its
burden of production and defeat a motion for summary judgment:

(1) pointing to evidence establishing material factual disputes that were
over-looked or ignored by the moving party; (2) rehabilitating the evidence
attacked by the moving party; (3) producing additional evidence establishing
the existence of a genuine issue for trial; or (4) submitting an affidavit
explaining the necessity for further discovery pursuant to Tenn. R. Civ. P.,
Rule 56.06.

-5-
McCarley, 960 S.W.2d at 588 (citing Byrd, 847 S.W.2d at 215 n.6). Courts must accept the
evidence proffered by the nonmoving party as true and resolve any doubts concerning the
existence of a genuine issue of material fact in favor of the nonmoving party. Martin, 271
S.W.3d at 84 (citation omitted). “‘A disputed fact is material if it must be decided in order
to resolve the substantive claim or defense at which the motion is directed.’” Id. (quoting
Byrd, 847 S.W.2d at 215). “A disputed fact presents a genuine issue if ‘a reasonable jury
could legitimately resolve that fact in favor of one side or the other.’” Id. (quoting Byrd, 847
S.W.2d at 215).

This appeal requires us to consider whether Unum has borne its burden to establish
the applicable contractual or statutory limitations periods as affirmative defenses to Fortune’s
causes of action. The Trustee argues that summary judgment is inappropriate for various
reasons. The Trustee first contends that Unum is not entitled to summary judgment on the
breach of contract action because Unum failed to allege undisputed facts demonstrating that
the agreed three-year limitations period has not been tolled. The Trustee argues in the
alternative that Unum is not entitled to summary judgment because the reassessment of
Fortune’s claim either revived his claim, renewed the policy, or constituted a new policy of
insurance such that the breach of contract action did not accrue until the Claim Reassessment
Unit concluded its review in April 2006. Finally, the Trustee submits that Unum is not
entitled to summary judgment on Fortune’s statutory and tort claims because there is a
disputed issue of fact concerning when he discovered Unum’s alleged fraudulent, deceptive,
or unlawful conduct. We will address these issues in turn.

The Trustee submits that Unum is not entitled to summary judgment on the breach of
contract action because there is an issue of fact as to whether the applicable limitations
period has been tolled. The group long term disability policy at issue indisputably precluded
Fortune or his authorized representative from commencing any legal action “until 60 days
after proof of claim has been given” or “more than 3 years after the time proof of claim is
required.” The Trustee does not challenge whether the parties contracted to establish an
enforceable agreed limitations period of three years. See Brick Church Trans., Inc. v. S. Pilot
Ins. Co., 140 S.W.3d 324, 329 (Tenn. Ct. App. 2003) (citations omitted) (“Tennessee has
long held that an insurance policy provision establishing an agreed limitations period within
which suit may be filed against the company is valid and enforceable.”); see also Certain
Underwriters at Lloyd's of London v. Transcarriers, Inc., 107 S.W.3d 496, 499 (Tenn. Ct.
App. 2002) (citations omitted). Nor does the Trustee challenge whether Fortune failed to
filed his complaint within three years of the October 2001 denial of continued benefits.
Rather, the Trustee argues that Unum is not entitled to summary judgment because it has not
alleged undisputed facts showing it provided Fortune or his attorney a copy of the policy or
other notice at least three years prior to the filing of his complaint. The Trustee submits that
an agreed limitations period is tolled in Tennessee until an insured is apprised of a policy’s

-6-
provisions and, thus, Unum’s failure to allege facts affirmatively showing that it provided
Fortune with a copy of the policy or other notice precludes summary judgment.

The Trustee cites the lone unreported decision of Jackson v. Potomac Insurance Co.,
Hamilton Law (Tenn. Ct. App. Sept. 8, 1982), in support of the proposition that an agreed
limitations period is tolled in Tennessee until the insured is specifically apprised of a policy’s
provisions.3 In Jackson, an insured filed suit to recover for a loss under the terms of a
homeowner’s policy that Potomac Insurance Company (“Potomac”) had issued him.
Jackson, at *1. The loss occurred on March 24, 1979, when thieves broke into the insured’s
van and stole several items of personal property. Id. at *2. After an insurance adjustor told
the insured’s wife that Potomac would not cover the loss absent proof of forcible entry, the
insured sought legal assistance. Id. The insured, however, was initially unable to provide
counsel with a copy of the controlling policy because Potomac had never provided him the
original. Id. The insured requested a copy from his insurance agent, but none was
forthcoming. Id. Eventually, the insured drove to the insurance agency, picked up a copy
of the insurance policy, and delivered it to his attorney on August 27th or 28th of 1979. Id.
On August 26, 1980, the insured filed suit. Id. at *3.

The pertinent question before this Court was whether the policy’s one-year contractual
limitations period barred the insured’s claim. The trial court had held on de novo review
from the general sessions court that the insured’s claim was not barred because a
misrepresentation of Potomac’s insurance adjustor had tolled the policy’s one-year
limitations period. Id. This Court disagreed with the trial court’s conclusion that the
insurance adjustor had committed fraud or misrepresentation but affirmed the trial court’s
decision on other grounds. Id. While recognizing that the insured had not established the
elements of estoppel, this Court determined that “where the general limitation provided by
statute has been shortened by contract it is appropriate to accord the insured the full contract
period after he has been apprised of the provisions of the policy.” Id. at *5; but see

3
The Trustee’s attorney has neglected to provide this Court a copy of the decision in Jackson
pursuant to Rule 12 of the Rules of the Court of Appeals of Tennessee, which states:

(a) No opinion of any court that has not been published shall be cited in papers filed in this
Court unless a copy thereof has been furnished to this Court and to adversary counsel. Such
unpublished opinions shall be included as appendices to any brief or other paper filed with
this Court.

Tenn. Ct. App. R. 12(a). Our review of the record reveals that the Trustee’s attorney apparently was unable,
or perhaps unwilling, to locate a copy of this decision even though it is the sole authority cited in support of
the Trustee’s position. Fortunately for the Trustee, opposing counsel experienced less difficulty procuring
a copy of the opinion and adhering to the rules of this Court.

-7-
Transcarriers, 107 S.W.3d at 499 (“The courts of this state generally have held that a
contractual limitations period begins to run upon accrual of the cause of action.”). Because
the insured in Jackson had filed suit within one year of receiving a copy of the policy, we
held that the suit was timely filed and affirmed the trial court’s decision. Jackson, at *5. The
Trustee asks this Court to follow Jackson and hold that summary judgment is inappropriate
on his breach of contract claim because Unum did not allege undisputed facts to show that
Fortune filed suit more than three years after obtaining a copy of his policy or receiving
notice of its provisions.

Unum argues to the contrary that this Court should adopt the position of the Sixth
Circuit in the unreported decision of Jones v. Allstate Ins. Co., 42 F.3d 1388, 1994 WL
677676 (6th Cir. 1994) (per curiam) (unpublished table decision), which expressly repudiated
Jackson. In Jones, a married couple (“the Joneses”) suffered a fire loss to a residence insured
under a homeowner’s policy with Allstate Insurance Company (“Allstate”). Jones, 1994 WL
677676, at *1. Allstate denied the Joneses’ claim on November 15, 1988, because they had
provided false information on their insurance application. Id. The couple’s attorney received
a copy of the insurance policy on September 29, 1989, and filed a complaint in state court
on December 28, 1989. Id. The United States District Court for the Western District of
Tennessee granted the insurance company’s motion for judgment as a matter of law after
Allstate removed the action to federal court because the Joneses had failed to file suit within
the policy’s agreed limitations period of one year.4 Id. The Joneses appealed.

The United States Court of Appeals for the Sixth Circuit affirmed the decision of the
district court, explaining:

Tennessee Code Annotated § 28-3-109(a)(3) provides that “[a]ctions on
contracts not otherwise expressly provided for . . . shall be commenced within
six (6) years after the cause of action accrued.” Tenn. Code Ann. §
28-3-109(a)(3) (1980). Tennessee courts, however, have consistently upheld
contractual periods of limitations that reduce the statutory period for filing suit.
See, e.g., Gutherie v. Connecticut Indemnity Ass'n, 49 S.W. 829, 830 (Tenn.
1899) (holding that insurance policy’s limitation for bringing suit was valid);
Tullahoma Concrete Pipe Co. v. Gillespie Constr. Co. & U.S. Fidelity & Guar.
Co., 405 S.W.2d 657, 664 (Tenn. 1966) (holding that provision in contract that
suit must be brought within one year after sub-contractor ceased work on
project was valid); Das v. State Farm Fire & Cas. Co., 713 S.W.2d 318, 324

4
The insurance policy in Jones contained a provision stating that “[a]ny suit or action [against
Allstate] must be brought within one year after the date of loss.” Jones, 1994 WL 677676, at *1 (citation
omitted).

-8-
(Tenn. Ct. App. 1986) (holding that dismissal of plaintiffs’ suit was justified
by their failure to sue within one year after insurance company’s first denial
of liability); Hill v. Home Ins. Co., 125 S.W.2d 189, 192 (Tenn. Ct. App. 1938)
(holding that contractual limitation requiring suit on fire policy to be
commenced within one year after date of loss was valid and enforceable).
Furthermore, in Hill, the Tennessee Court of Appeals held that the words
“after the date of loss” in an insurance policy provision limiting suit on the
policy means “after the cause of action accrues,” and that the cause of action
accrues at the time that the insurance company denies liability for the insured’s
claim. 125 S.W.2d at 192. Under Hill, the Joneses should have filed suit
within a year after they were notified by Allstate that their claim was being
denied, i.e., by November 15, 1989.

The Joneses argue, however, that the policy’s one-year time period to bring
suit should have been tolled until the time when they or their attorney received
a copy of the insurance policy, and thus had actual notice of the one-year
limitation. Under this scenario, the Joneses would have filed suit in a timely
manner, as the suit was filed within three months of their attorney’s receipt of
the policy. There are no reported Tennessee cases directly on point.

Even so, the Joneses do cite an unreported Tennessee decision, Jackson v.
Potomac Ins. Co., 7 TAM 41-21 (Tenn. Ct. App. Sept. 8, 1982), as support for
their position. The reasoning of the case is not persuasive, and we are not
bound by that decision. See Southern Ry. Co. v. Foote Mineral Co., 384 F.2d
224, 228 (6th Cir. 1967) (stating that unpublished opinion of Tennessee
Supreme Court is not binding on that court and accordingly federal court is not
bound by decision that would not be binding on highest state court); Patton v.
McHone, 822 S.W.2d 608, 615, n. 10 (Tenn. Ct. App. 1991) (noting that where
Tennessee Supreme Court had in fact reviewed case, but had only concurred
in result, unpublished opinion of Tennessee Court of Appeals had no
precedential value except to parties in case).

We believe that the Tennessee Supreme Court would hold that the instant suit
is absolutely barred by the one-year limitation in the insurance policy. Other
jurisdictions have espoused this view. See, e.g., Schoonover v. American
Family Ins. Co., 572 N.E.2d 1258, 1264 (Ill. Ct. App. 1991) (holding that
although claimant had not received a copy of insurance policy, one-year
limitation of policy applied because where insured had notice that policy
existed, it was his responsibility, and not insurance company’s, to insure his
knowledge of contents of policy); Young v. Seven Bar Flying Service, Inc., 685

-9-
 P.2d 953, 956 (N.M. 1984) (holding that where insured was on notice that
insurance coverage had been obtained, insurance company’s failure to provide
insured with a copy of the insurance policy did not preclude application of
policy’s one-year time period for bringing suit to bar insured’s belated claim);
Alfieri v. Monoghan Real Estate, Inc., 283 A.2d 685, 686 (Del. Sup. Ct. 1971)
(holding that where insureds procured copies of their policies before
contractual time limitation was to expire, but then failed to file suit until
almost one year later and after contractual deadline for filing suit had passed,
in the absence of showing of misconduct by insurance company, contractual
time limit applied, and suit was barred).

In reviewing the district court’s judgment as a matter of law, we accept as true
the Joneses’ claim that they never received a copy of the insurance policy.
Even so, the Joneses acknowledge that they had received documents from
Allstate regarding the issuance of insurance coverage, the amounts of
coverage, renewal notices, and premium notices. These documents constituted
notice to the Joneses that an insurance policy was in effect, and the November
15, 1988 denial of claim letter was further notice to the Joneses that they
should obtain a copy of the policy. Moreover, the Joneses’ attorney did in fact
receive a copy of the policy with adequate time to file the action within the
one-year period, but he failed to meet the deadline. Finally, the Joneses have
made no claim that Allstate intentionally prevented their knowledge of the
policy provision placing a one-year time period for commencing suit on the
policy, or that Allstate engaged in other misconduct that might estop
application of the contractual provision. We hold that the Joneses’ failure to
comply with the policy provision now bars their claim.

Jones, 1994 WL 677676, at *2-3.

We find the reasoning of the Sixth Circuit’s decision in Jones more persuasive on the
question at hand, especially where the plaintiff has already accepted payments of benefits as
a third party beneficiary of the policy. See Benton v. Vanderbilt Univ., 137 S.W.3d 614, 618
(Tenn. 2004) (quoting United States Fid. & Guar. Co. v. Elam, 278 S.W.2d 693, 702 (Tenn.
1955) (“‘Before the beneficiary may accept the benefits of the contract, he must accept all
of its implied, as well as express, obligations. . . . [I]f the beneficiary accepts, he adopts the
bad as well as the good, the burden as well as the benefit.’”). Here, it is undisputed that
Fortune knew the policy governing his claim existed, that he accepted benefits under the
terms of the policy for two years prior to denial, and that he received inquiry notice through
the denial of claim letter that he should obtain a copy of his policy if he or his attorney did
not already have one. These undisputed facts are sufficient in our opinion to warrant

-10-
summary judgment where the plaintiff has not alleged that the insurance company withheld
a copy of the policy or obstructed his ability to learn of its contents.5 Unlike Jackson, there
has been no suggestion that the insurance company failed to provide the plaintiff with a copy
of the policy, failed to respond timely to a request for a copy of the policy, or otherwise
impeded the plaintiff’s ability to learn of the policy’s provisions. Unum is therefore entitled
to summary judgment on the breach of contract issue if we accept its contention that
Fortune’s cause of action accrued in October 2001.

The Trustee submits that the reassessment process revived Fortune’s claim, renewed
his insurance policy, or otherwise constituted a new policy of insurance such that the breach
of contract action did not accrue until the Claim Reassessment Unit concluded its review in
April 2006.6 The RSA, the conditional waiver and release, and the parties’ correspondence,
however, collectively indicate that the RSA was an optional process that did not create any
new rights in the claimant beyond the right to seek reassessment. The RSA, for example,
expressly states that the “purpose of the Claim Reassessment Process provided for under this
Agreement is to offer an entirely optional method for claimants who wish to have their
claims reassessed under these procedures,” that “[n]either this Agreement nor any of the
relief to be offered under this Agreement shall be interpreted to alter in any way the
contractual terms of any policy, or to constitute a novation of any policy,” and that “to the
extent that following the reassessment there remains a complete or partial denial of benefits,
a claimant’s right to initiate or continue litigation regarding that portion of the prior denial
. . . shall not be waived.” Similarly, the conditional waiver and release expressly provided
that the reassessment process would “not revive or reinitiate the statute of limitations with
respect to the previous claim decision.” As Unum persuasively explains in its brief,

[T]he RSA did not create a claim process that would result in “new” claims.
If a participant’s claim remained viable - i.e., the limitations period remained
open - then the limitations period was expressly tolled to allow time for Unum
Life to complete its reassessment before a claimant need file suit related to the
claim denial. If, however, the limitations period had run on a claim, no
“revival” of the claim could occur. In this case, all periods of limitations had
expired by October 2004 - before the RSA was even finalized and

5
We express no opinion on whether a different rule should apply if a plaintiff alleges that an
insurance company impeded his or her ability to obtain a copy of the relevant policy or learn of its contents.
6
The Trustee has not argued that Unum breached the RSA or that Fortune is entitled to enforce its
terms. See MacLennan v. Provident Life & Acc. Ins. Co., 676 F. Supp. 2d 57, 68 (D. Conn. 2009) (applying
Tennessee law and finding disputed issues of material fact concerning whether an insurance company had
violated the terms of the RSA).

-11-
 implemented, before Fortune opted into the process, and long before his claim
was reassessed. By the time the reassessment process had begun, there was no
then-pending limitations period to toll. The RSA cannot be read to revive
expired statutes of limitations or to create new claims for plaintiffs who had
already failed to timely assert their rights.

We agree and find that Unum has alleged undisputed facts demonstrating that the
reassessment did not revive Fortune’s claim, renew his policy, or constitute a new policy of
insurance.

The decision of the United States District Court for the Western District of Tennessee
in Lindsey v. Allstate Insurance Co., 34 F. Supp. 2d. 636 (W.D. Tenn. 1999), is inapposite.
In Lindsey, the district court declined to dismiss a claim for breach of contract as time-barred
where (1) it was possible that the policy at issue was renewed within six years of the filing
of suit, and (2) the contractual allegations also extended to a policy that remained in effect
at the time of the decision. Lindsey, 34 F. Supp. 2d. at 650. The district court explained that
“[a]lthough a renewal of an insurance contract may be routine and require very little
negotiation, a renewal does contain the essential elements of a contract: offer, acceptance and
consideration.” Id. The undisputed facts, however, show that neither the RSA nor the
correspondence between the parties contained the essential elements of a contract required
to renew the policy. And the Trustee’s brief contains absolutely no explanation of how this
Court could reach a contrary conclusion. Accordingly, we find that Fortune’s cause of action
for breach of contract accrued at the very latest in October 2001 when Unum terminated his
benefits by letter.7 See Transcarriers, 107 S.W.3d at 499-500 (finding that a “contractual
statute of limitations begins to run upon denial of liability or upon expiration of the immunity
period, whichever comes first”). Because Fortune filed suit well beyond the policy’s agreed
limitations period of three years, the trial court’s grant of summary judgment on the breach
of contract issue is affirmed.

The next question before this Court is whether Unum is also entitled to summary
judgment on Fortune’s statutory and tort claims.8 The TCPA provides that a private action
for damages resulting from unlawful or deceptive acts or practices “shall be brought within
one (1) year from a person’s discovery of the unlawful act or practice.” Tenn. Code Ann. §

7
We are not asked to determine whether Fortune’s claim actually accrued prior to this date under the
terms of the contract.
8
Although the Trustee’s brief once mentions Fortune’s “bad faith” claim, it does not contain an
argument supported by citations to authority or citations to the record to demonstrate that the trial court erred
when it granted summary judgment on this issue. The issue is therefore waived. See Sneed v. Board of
Professional Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).

-12-
47-18-110 (Supp. 2009). Tennessee Code Annotated section 28-3-105, which the parties
agree governs Fortune’s allegations of fraud and misrepresentation, provides that an action
for injuries to real or personal property must be commenced within three years of accrual.
Tenn. Code Ann. § 28-3-105(1) (2000). Here, it is undisputed that Fortune filed his
complaint more than three years after the initial termination of his claim for continued
benefits. The Trustee nevertheless contends that a question of fact exists about when Fortune
discovered his causes of action, citing a sworn affidavit that states Fortune “became aware
that the Defendants had improperly denied [his] claim for long term disability benefits within
one year of suit being filed.” The Trustee accordingly argues that the applicable limitations
periods were tolled under the discovery rule and, thus, his statutory and tort actions did not
accrue in October 2001. We disagree. Although Fortune’s affidavit creates a factual dispute
concerning his actual, subjective discovery of Unum’s alleged wrongful conduct, the
resolution of this dispute is immaterial because Fortune was aware of sufficient facts to put
a reasonable person on notice that he had suffered injury or damages when Unum denied his
claim.

This Court considered and rejected a nearly identical argument under the TCPA in
Schmank v. Sonic Automotive, Inc., No. E2007-01857-COA-R3-CV, 2008 WL 2078076
(Tenn. Ct. App. May 16, 2008). The consumer in Schmank filed suit against an automobile
dealer, its owner, and the Automobile Protection Corporation alleging that the defendants
violated the TCPA by “stuffing” a worthless product, an anti-theft system and warranty, into
two separate vehicle sales agreements. Schmank, 2008 WL 2078076, at *1. The defendants
responded in part that the TCPA’s one-year statute of limitations barred the consumer’s
claim. Id. at *1. The trial court agreed and granted the defendants’ motion to dismiss
“‘primarily, on the statute of limitations issue as to each purchase and, secondarily, on the
issue of failure to state a claim under the Tennessee Consumer Protection Act.’” Id. at *2.
The consumer appealed.

This Court described the determinative issue on appeal as follows:

Whether the trial court erred in granting the Defendants’ motion to dismiss on
grounds that Plaintiff’s claims were barred by the statute of limitations when
the complaint was filed within a year of the time that Plaintiff asserted that she
discovered her injury.

Id. In answering this question in the negative, we first acknowledged that “the Tennessee
legislature has determined that a plaintiff’s TCPA claim accrues at time of the ‘discovery of
the unlawful act or practice,’ thereby making applicable the ‘discovery rule’ first applied over
thirty years ago in Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974).” Schmank, 2008 WL
2078076, at *2 (citations omitted). We then quoted Pero's Steak and Spaghetti House v. Lee,

-13-
90 S.W.3d 614 (Tenn. 2002), which restated the discovery rule thus:

“It is now well-established that, where applicable, the discovery rule is an
equitable exception that tolls the running of the statute of limitations until the
plaintiff knows, or in the exercise of reasonable care and diligence, should
know that an injury has been sustained. Quality Auto Parts Co. Inc., 876
S.W.2d [818,] at 820 [Tenn. 1994]. The discovery rule does not, however, toll
the statute of limitations until the plaintiff actually knows that he or she has a
cause of action. The plaintiff is deemed to have discovered the right of action
when the plaintiff becomes aware of facts sufficient to put a reasonable person
on notice that he or she has suffered an injury as a result of the defendant's
wrongful conduct. Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998); Roe
v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994).”

Schmank, 2008 WL 2078076, at *2-3 (quoting Lee, 90 S.W.3d at 621). This Court
acknowledged that the question of “[w]hether the plaintiff exercised reasonable care and
diligence in discovering the injury or wrong is usually a fact question for the jury to
determine.” Id. (quoting Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn. 1995) (citing
McIntosh v. Blanton, 164 S.W.3d 584, 586 (Tenn. Ct. App. 2004)). We went on to state,
however, that

where the undisputed facts demonstrate that no reasonable trier of fact could
conclude that a plaintiff did not know, or in the exercise of reasonable care and
diligence should not have known, that he or she was injured as a result of the
defendant's wrongful conduct, Tennessee case law has established that
judgment on the pleadings or dismissal of the complaint is appropriate.

Id. (citing Stanbury v. Bacardi, 953 S.W.2d 671, 677-78 (Tenn. 1997); Roe v. Jefferson, 875
S.W.2d 653, 658 (Tenn. 1994); Brandt v. McCord, No. M2007-00312-COA-R3-CV, 2008
WL 820533, at *4 (Tenn. Ct. App. Mar. 26, 2008)). After reviewing the allegations of the
complaint, we held that the consumer in Schmank had failed to timely bring her action for
violation of the TCPA because “all of the facts sufficient to put a reasonable person on notice
that she had suffered injury resulting from the Defendants’ allegedly wrongful conduct were
known or readily available to [the consumer] at the time she entered into the agreement to
purchase her vehicles.” Id. at *3. After rejecting the consumer’s claim for fraudulent
concealment, we affirmed the dismissal of the action. Id. at *5.

Unum argues that we should reach a similar conclusion here, submitting that Fortune’s
cause of action for violation of the TCPA accrued when Unum denied his claim for
continued long term disability benefits in October 2001. Unum argues that Fortune was

-14-
indisputably aware of sufficient facts in October 2001 to place a reasonable person on notice
that his injury or damages resulted from Unum’s alleged unlawful conduct. Unum maintains
that it matters not whether Fortune knew the specific type of legal claim he had or that the
injury resulted from an unfair or deceptive act or practice under the TCPA. See John Kohl
& Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 533 (Tenn. 1998) (citing Shadrick v.
Coker, 963 S.W.2d 726, 733 (Tenn. 1998) (“[T]here is no requirement that the plaintiff
actually know the specific type of legal claim he or she has, or that the injury constituted a
breach of the appropriate legal standard.”). According to Unum, “[t]he only relevant fact for
purposes of applying the statute of limitations is when Fortune became aware that his claim
had been denied, and that fact is indisputable: Fortune became aware of the claim denial in
October 2001, five years before he filed his belated lawsuit.” We agree and hold that the
undisputed facts demonstrate that Fortune, with the exercise of reasonable care and diligence,
should have discovered that he suffered injuries or incurred damages as a result of Unum’s
alleged wrongful denial of disability benefits in October 2001. Further, we hold that the
same reasoning supports the grant of summary judgment on Fortune’s remaining tort claims.
See Potts v. Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990) (citations omitted) (“Under
the “discovery rule” applicable in tort actions . . . the cause of action accrues and the statute
of limitations begins to run when the injury occurs or is discovered, or when in the exercise
of reasonable care and diligence, it should have been discovered.”). The trial court’s grant
of summary judgment on Fortune’s statutory and tort claims is affirmed.

The remaining issues discussed in the appellant’s brief are without merit. The Trustee
submits that summary judgment is inappropriate because a genuine issue of material fact
exists concerning whether Fortune was of unsound mind when Unum terminated his
disability claim. Tennessee Code Annotated section 28-1-106 states:

If the person entitled to commence an action is, at the time the cause of action
accrued, either within the age of eighteen (18) years, or of unsound mind, such
person, or such person’s representatives and privies, as the case may be, may
commence the action, after the removal of such disability, within the time of
limitation for the particular cause of action, unless it exceeds three (3) years,
and in that case within three (3) years from the removal of such disability.

Tenn. Code Ann. § 28-1-106 (2000). The Trustee, however, did not allege unsoundness of
mind as a basis for tolling the limitations periods and or raise this argument before the trial
court. It is therefore not properly before this Court on appeal. See Fayne v. Vincent, 301
S.W.3d 162, 171 (Tenn. 2009) (citations omitted) (acknowledging the “continuing vitality
and validity of the principle that parties will not be permitted to raise issues on appeal that
they did not first raise in the trial court” and further holding that “the party invoking this
principle has the burden of demonstrating that the issue sought to be precluded was, in fact,

-15-
not raised in the trial court”).

The Trustee’s brief also contains bare assertions that Unum should be equitably
estopped from alleging the applicable limitations periods as affirmative defenses and that this
Court should not consider information contained in or attached to the sworn affidavit of
Sharon Haas. These “arguments,” however, are wholly unsupported by citation to authority
in support of the appellant’s positions. Equally absent from these abbreviated “arguments”
is any attempt to explain how the elements of equitable estoppel are satisfied or why the
affidavit of Sharon Haas is inadmissible. These perfunctory “arguments” are insufficient to
warrant this Court’s attention on appeal and are therefore waived. See Bean v. Bean, 40
S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted). The same is true for the
Trustee’s brief “argument” on the question of fraudulent concealment, which cites authority
but nonetheless contains no explanation of how the doctrine is applicable under the
undisputed facts, and its “argument” on the admissibility of Mona Bombassi’s affidavit,
which simply asserts that she was not an employee and/or keeper of the records of Unum Life
Insurance Company. Further, even if the Trustee’s conclusory statements regarding the
inadmissibility of Mona Bombassi’s affidavit constituted an argument, no issue was raised
on this basis before the trial court.

In conclusion, we find that Unum is entitled to summary judgment on each of
Fortune’s causes of action. It is undisputed that Unum notified Fortune’s prior attorney in
October 2001—notice that is imputed to Fortune as a result of the attorney-client
relationship, see Winstead v. First Tennessee Bank N.A., Memphis, 709 S.W.2d 627, 632-33
(Tenn. Ct. App. 1986) (citations omitted)—that Fortune’s claim for continued benefits was
terminated. To the extent Fortune stated he did not actually learn of the alleged unlawful,
unfair, or deceptive practices of Unum in 2001, the undisputed facts show that he should
have known in the exercise of reasonable care and diligence that he had sustained injuries
or damages when Unum denied his claim. Fortune nevertheless did not file suit until October
2006, well beyond the expiration of the controlling limitations periods. We therefore hold
that the trial court properly granted summary judgment in favor of Unum.

V. Conclusion

For the foregoing reasons, we affirm the decision of the trial court. Costs of this
appeal are taxed to the appellant, Bettye Bedwell as bankruptcy trustee, and her surety for
which execution may issue if necessary.

_________________________________
DAVID R. FARMER, JUDGE

-16-