IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 7, 2002 Session
JERRY W. SEYMOUR, ET AL. v. TOMISA SIERRA, ET AL.
Appeal from the Circuit Court for Franklin County
No. 10,897-CV Buddy D. Perry, Judge
No. M2001-02278-COA-R9-CV - Filed July 16, 2002
The only question involved in this appeal is whether an insured may proceed directly against its
uninsured motorist carrier when the tortfeasor is in fact insured but service of process is returned
“not to be found.” The Circuit Court of Franklin County allowed the suit to proceed and we granted
the insurance company’s motion for an interlocutory appeal under Rule 9, Tenn. R. App. P. After
briefing and oral argument, we affirm the trial court.
Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court
Affirmed and Remanded
BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, J.
and THOMAS W. BROTHERS , SP . J., joined.
Parks T. Chastain, Nashville, Tennessee, for the appellant and unnamed defendant, Nationwide
Insurance Company.
Robert S. Peters, Winchester, Tennessee, for the appellees Jerry W. Seymour and Emmalene
Seymour.
OPINION
I.
The plaintiffs, man and wife, filed a complaint in the Circuit Court of Franklin County
against Tomisa Sierra and Octavia Cruise. The complaint alleged that Tomisa Sierra, on or about
May 6, 1997, while driving an automobile owned by Octavio Cruise, negligently caused injury to
the two plaintiffs. The plaintiffs sought an award of damages in the combined amount of $100,000.
The plaintiffs served a copy of the complaint on Nationwide Insurance Company, their own
insurance carrier. On May 22, 1998, Nationwide filed an answer revealing that it issued a policy to
the plaintiffs which provided uninsured/underinsured motorist coverage with limits of $100,000 for
one person and $300,000 for two or more persons.
Plaintiffs issued an alias summons for the defendants on February 11, 1999. On March 4,
1999 the summons for each defendant was returned “not to be found.” No further effort was made
to serve the defendants. So far as the record shows, the whereabouts of the defendants is unknown.
On August 24, 2000, Nationwide moved for summary judgment on the ground that the statute
of limitations barred any further prosecution of the action and that the inability to proceed against
the defendants discharged Nationwide. See Winters v. Estate of Jones, 932 S.W.2d 464 (Tenn. Ct.
App. 1996). Along with the motion, Nationwide filed the affidavit of a claims representative with
Michigan Millers Insurance Company showing that on the date of the accident the automobile
operated by Tomisa Sierra was covered by a liability policy issued by Michigan Millers. Later the
plaintiffs’ attorney filed an affidavit showing that the limits of the Michigan Miller’s policy were
$50,000/$100,000. The trial judge denied the motion for summary judgment and we granted the
interlocutory appeal to consider the following question: “Whether the service provisions of Tenn.
Code Ann. § 56-7-1206(d) apply where the defendants were insured at the time of the accident but
service on the defendants was returned “Not to be Found.”
II.
Tennessee is not a “direct action” state where a plaintiff can sue the liability insurance carrier
of the defendant who allegedly caused the harm. When the legislature first provided for uninsured
motorist coverage the statutes did not allow a recovery from the plaintiff’s uninsured carrier where
the tortfeasor could not be served with process. Glover v. Tennessee Farmers, 468 S.W.2d 727
(Tenn. 1971); McCall v. Maryland Cas. Co., 516 S.W.2d 353 (Tenn. 1974). Consequently, in 1975
the general assembly passed what became subsection (d) of Tenn. Code Ann. § 56-7-1206:
(d) In the event that service of process against the uninsured motorist, which was
issued to the motorist’s last known address, is returned by the sheriff or other process
server marked, “Not to be found in my county,” or words to that effect, or if service
of process is being made upon the secretary of state for a nonresident uninsured
motorist and the registered notice to the last known address is returned without
service on the uninsured motorist, the service of process against the uninsured
motorist carrier, pursuant to this section, shall be sufficient for the court to require
the insurer to proceed as if it is the only defendant in such a case.
Nationwide, however, asserts that this statute does not apply because the defendants were in
fact insured. Therefore, by not keeping the complaint alive in accordance with Rule 3, Tenn. R. Civ.
Proc.,1 the plaintiffs allowed the statute of limitations to run.
1
“If process remains unissued for 30 days or is not served within 30 day s from issuance, regardless of the
(con tinued...)
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The plaintiffs counter with the argument that for the purpose of Tenn. Code Ann. § 56-7-
1206(d), the defendants were uninsured. They base this argument on the definition of an “uninsured
motor vehicle” in Tenn. Code Ann. § 56-7-1202(a):
For the purpose of this coverage, “uninsured motor vehicle” means a motor vehicle
whose ownership, maintenance, or use has resulted in the bodily injury, death, or
damage to property of an insured, and for which the sum of the limits of liability
available to the insured under all valid and collectible insurance policies, bonds, and
securities applicable to the bodily injury, death, or damage to property is less than the
applicable limits of uninsured motorist coverage provided to the insured under the
policy against which the claim is made.
Under this subsection an “uninsured motor vehicle” clearly includes an underinsured motor
vehicle. We are satisfied that the term “uninsured motorist” in Tenn. Code Ann. § 56-7-1206(d) also
includes a motorist that is underinsured. At one time this chapter of the Code included both terms,
but the legislature (and the courts) found the statutes confusing. Thus, in 1982 the legislature
amended the statute to “combine the two categories in a single paragraph.” See Dockins v. Balboa
Ins. Co., 764 S.W.2d 529 (Tenn. 1989); see also Slutsky v. City of Chattanooga, 34 S.W.3d 467
(Tenn. Ct. App. 2000). In Slutsky, the plaintiff contended that a government-owned vehicle was not
an uninsured motor vehicle under the version of Tenn. Code Ann. § 56-7-1201 and 1202 then in
effect because the governmental liability made the vehicle “underinsured.” The court rejected that
argument, relying on Dockins v. Balboa, saying, “It appears to us the Legislature simply combined
those two categories in a single paragraph . . . .” 34 S.W.3d at 471. We conclude that an uninsured
motorist in Tenn. Code Ann. § 56-7-1206(d) includes an underinsured motorist.
We sympathize with parties and their lawyers that have to try cases involving
uninsured/underinsured motorists when the subject presents a moving target. The Legislature nearly
every session amends the law, most of the time in response to a court decision interpreting the old
law. We should also distinguish this case from Winters v. Estate of Jones, 932 S.W.2d 464 (Tenn.
Ct. App. 1996) which involved Tenn. Code Ann. § 56-7-1206(d) but produced a different result. In
that case, however, the plaintiff did not attempt to serve the defendant at his last known address, and
we found (because of that failure), the plaintiff could not rely on the “not to be found” return.
We affirm the Circuit Court’s refusal to grant summary judgment to the insurance company.
The cause is remanded to the Circuit Court of Franklin County for further proceedings. Tax the costs
on appeal to the appellant, Nationwide Insurance Company.
1
(...continued)
reason, the plaintiff cannot rely upon the original comm encem ent to toll the running of a statute of limitations unless
the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous
process or, if no p rocess is issued , within one year of the filing of the co mp laint.”
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_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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