Raymond Cox And Elaine Cox v. Tennessee Farmers Mutual

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 4, 2008 Session

RAYMOND COX and ELAINE COX v. TENNESSEE FARMERS MUTUAL
INSURANCE COMPANY

Direct Appeal from the Chancery Court for Campbell County
No. 15,389 Hon. Billy Joe White, Chancellor

No. E2007-00590-COA-R3-CV - FILED FEBRUARY 9, 2009

The Plaintiffs sued defendant insurance company alleging breach of the insurance policy between
the parties. The Trial Court granted partial summary judgment to defendant on the contents
coverage on plaintiffs’ home destroyed by fire. The judgment was granted on the grounds that the
plaintiffs did not file a proper proof of loss of the contents within the time frame required by the
policy, and that defendant was prejudiced thereby. The partial summary judgment is the principal
issue on appeal and we affirm the Judgment of the Trial Court.

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

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for appellants, Raymond and Elaine Cox.

Michael R. Campbell and Kathryn M. Russell, Chattanooga, Tennessee, for appellee, Tennessee
Farmers Mutual Insurance Company.

OPINION

Plaintiffs sued Tennessee Farmers Mutual Insurance Company (Tennessee Farmers)
for breach of insurance contract, violation of the Tennessee Consumer Protection Act, and
constructive fraud and bad faith. Plaintiffs’ complaint avers that on or about May 23, 2000 the
plaintiffs’ home was damaged by an accidental fire causing a loss of the house and contents, and that
Tennessee Farmers provided coverage to them for loss caused by fire to the dwelling, other
structures, personal property, and loss sustained for debris removal and damage to landscaping, and
that Tennessee Farmers breached the contract of insurance by failing, in bad faith, to pay plaintiffs’
claims. Tennessee Farmers answered and alleged that plaintiffs had breached the contract of
insurance by failing to comply with the provisions of the contract in their making a claim for fire loss
under the policy.

Numerous motions and further pleadings were filed and acted upon by the Trial
Judge, which are not an issue on appeal.

Tennessee Farmers motion for partial summary judgment under Coverage C of the
policy relating to plaintiffs’ contents claim was heard by the Trial Judge on December 6, 2005. The
Trial Court granted defendant’s motion for partial summary judgment on a finding there were no
material facts in dispute, and that defendant was entitled to judgment as a matter of law. The Court
denied plaintiffs’ claim for contents coverage. The Court explained that plaintiffs did not file their
completed proof of loss until more than seven months after they filed their incomplete proof of loss
form in July 2002, and more than nine months after the fire itself, and that there was no excuse for
this delay. The Trial Court granted plaintiffs an interlocutory appeal which was not perfected by
plaintiffs. The Trial Court tried the remaining issues and based upon the evidence presented at trial
the Trial Court held in its final judgment entered on February 12, 2007, that plaintiffs were entitled
to recover $18,375.00 for damages to landscaping, $15,000.00 for debris removal, $2,000.00 for
damages to the swimming pool, and $27,079 for loss of the dwelling under Coverage A and
$5,686.63 in prejudgment interest. The final judgment is not raised as an issue on appeal, and the
issue on appeal is the propriety of the partial summary judgment granted on Coverage C of plaintiffs’
policy.

A certified copy of the policy was filed and parts of the policy pertinent to this appeal
are as follows:

Coverage C - Personal Property

What Personal Property is Covered
We cover:
1. Personal property owned or used by an insured anywhere in the world.

REPORTING A CLAIM
DUTIES OF PERSON OR ENTITY SEEKING
COVERAGE
FAILURE TO COMPLY WITH THESE NOTICE AND DUTY
REQUIREMENTS MAY RESULT IN DENIAL OF COVERAGE UNDER
THIS POLICY

Duty to Cooperate with Us

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 Person and entities seeking coverage under this policy must:

1. cooperate with us and anyone we name in the investigation, settlement, or
defense of any claim or suit; and

****

7. make a list of all damaged . . . property showing in detail the quantity,
purchase price, date and place of acquisition, actual cash value, replacement
cost, and amount of loss claimed and attach to such list all bills, receipts, and
related documents that substantiate the figures in the list; and

8. send to us within 60 days after loss the list set forth in 7 above and a proof of
loss signed and sworn to by a person or entity seeking coverage . . . .

In the motion for partial summary judgment, Tennessee Farmers filed affidavits and
supporting documents which established that plaintiffs initially submitted proof of loss within sixty
days of the loss, but the proof of loss was incomplete and contained no information about the
inventory of personal contents loss under coverage C of the policy. Without an itemized list of
personal property contents, Tennessee Farmers represented that it was unable to inspect the fire site
to determine whether the claimed contents were in the dwelling at the time of the fire. Tennessee
Farmers rejected the initial proof of loss, and returned the incomplete proof of loss to plaintiffs by
letter on July 24, 2000, from Mr. Campbell to Mr. Cox which advised that the proof of loss was
incomplete and unacceptable, and the letter included instructions providing the information that
needed to be included in the proof of loss. The letter instructed plaintiffs to complete the proof of
loss, have it notarized, and return to the insurer and admonished that “no exceptions will be
considered in your claim” and that “if the conditions of your insurance contract are not met, your
claim could be put in jeopardy.”

The Coxes submitted a completed sworn proof of loss to Tennessee Farmers that
included a claim for loss of personal contents under Coverage C on February 22, 2001, nine months
after the fire loss. A seventy-two page inventory of contents was attached to the proof of loss, and
another affidavit by Tennessee Farmers explained the consequence of the delay in completing the
proof of loss as follows: “At this point [February 22, 2001] there was no way for Tennessee Farmers
to inspect the site of the fire loss to determine whether the personal property/contents claimed to
have been destroyed were in the dwelling prior to the fire.” Plaintiffs submitted the affidavit of
Raymond Cox with its response to the motions for summary judgment, as to the motion on Coverage
C. The affidavit fails to state that the affidavit is made on the personal knowledge of Mr. Cox. See
Tenn. R. Civ. P. 56.06. The facts set out in the affidavit material to the Coverage C issue are that
Mr. Cox stated that he cooperated as fully as possible to expedite payment of his claims, including
signing documents allowing Tennessee Farmers to conduct an investigation and authorizing the
insurer to conduct scheduled and escorted inspections of the premises. He did not state when he
performed these activities, but that he made demand for payment of his claims by “my sworn proof

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of loss and many oral demands within 90 days of my loss . . . .”

Regarding the proof of loss, Mr. Cox stated the following:

My first proof of loss I provided to the defendant was returned to me without
explanation except that it was not complete. I provided the defendant a supplement
to my original proof of loss after receiving a complete copy of my policy, which was
necessary to accurately determine my content coverage and how to correctly fill out
the forms. I was directed to give the supplemented proof of loss to the defendant’s
claim representative who again would not receive it. Further, the defendant’s agent
assured my they would pay and that I need not file suit.

Mr. Cox did not state in his affidavit when he produced the second proof of claim.
Plaintiffs attached numerous documents to their “Plaintiffs’ Response to Defendant’s Motions for
Partial Summary Judgment.” However, the record reveals plaintiffs failed to put these documents
properly before the Trial Court. Tenn. R. Civ. P. 56.06 requires that supporting and opposing
affidavits shall set forth facts as would be admissible in evidence. The documents plaintiffs sought
to use to support their response were all hearsay and they were not authenticated and made
admissible under the Tennessee Rules of Evidence. See Price v. Becker, 821, S. W. 2d 597, 598
(Tenn. Ct. App. 1991). Both parties raise issues on appeal. The issues presented on appeal are:

A. Does the Court of Appeals have jurisdiction to review and consider the grant
of summary judgment regarding plaintiffs’ claim for contents under C
Coverage when plaintiffs’ notice of appeal states that the appeal is of the final
judgment entered on February 12, 2007 and does not state that the partial
summary judgment entered on January 18, 2006 is appealed?

B. Did the Trial Court err when it granted defendant’s motion for partial
summary judgment on plaintiffs’ claim for contents under C Coverage
because plaintiffs failed to submit a proof of loss more than seven months
after they were provided with the proof of loss form?

Summary judgment is appropriate only when the moving party demonstrates that
there are no genuine issues of material fact and that he or she 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). If the moving party
makes a properly supported motion, the burden of production then shifts to the nonmoving party to
show that a genuine issue of material fact exists to be resolved by the trier of fact. Byrd, 847 S.W.2d
at 215, Staples v. CBL & Assoc., Inc. 15 SW3d 83, 89 (Tenn. Ct. App. 2000). This Court reviews
a summary judgment motion de novo, as a question of law without a presumption of correctness.
Finister v. Humboldt General Hosp., Inc., 970 S. W. 2d 435, 437 (Tenn. 1998), and the evidence and

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all reasonable inferences are viewed in the light most favorable to the nonmoving party. Byrd, 847
S. W. 2d at 210-211.

The first issue for consideration is Tennessee Farmers’ contention that the Court of
Appeals does not have jurisdiction over this appeal because the notice of appeal filed by
plaintiffs/appellants did not specifically designate the partial summary judgment regarding Coverage
C entered by the Trial Court.

Tennessee Farmers’ argues that “[i]n order to obtain appellate review, the appellant
must specify in the Notice of Appeal the Judgment or Order from which relief is sought.” In support
of this contention, Tennessee Farmers relies on Tenn. R. App. P. 3 (f); Hall v. Hall, 772 S.W.2d 432,
435 (Tenn. Ct. App. 1989); and several unreported cases. Appellants argue the notice of appeal
encompasses all of the orders of the Trial Court despite the fact that the notice only designated the
final judgment, and additionally urged the Court to exercise leniency regarding their failure to
designate the January 18, 2006 order granting partial summary judgment in favor of Tennessee
Farmers because they filed the notice pro se.

When considering this issue this Court has focused on whether the “notice function”
of Tenn. R. App. P. 3(f) has been served, to determine whether the scope of review must be limited
to the order designated in the notice of appeal. In Thompson v. Logan, No. M2005-02379-COA-R3-
CV, 2007 WL 2405130 (Tenn. Ct. App. Aug. 23, 2007), Judge Cottrell conducted a thorough review
of the Tennessee case law on the application of Tenn. R. App. P. 3(f) that is instructive. In that case
the trial court entered an order on the merits of the case and later entered an order denying the
appellants' motion to alter or amend. Appellants filed a notice of appeal on September 23, 2005 that
designated the June 20, 2005 and August 29, 2005 orders by date and substance. The appeal was
premature, however, as a motion for sanctions was still before the trial court at the time the notice
was filed. The trial court entered an order in regard to the motion for sanctions on December 12,
2005. Thompson, at *9. The appellants neither amended the notice of appeal nor did they file
another notice of appeal that designated the December 12, 2005 order as one of the orders being
appealed. They did, however, raise the December 12, 2005 order as an issue on appeal in their brief
along with the other orders.

The Thompson Court began its analysis with Tennessee Rules of Appellate Procedure
Rule 3(f) that states:

The notice of appeal shall specify the party or parties taking the appeal, ... shall
designate the judgment from which relief is sought, and shall name the court to
which the appeal is taken. An appeal shall not be dismissed for informality of form
or title of the notice of appeal.

The Thompson Court referenced the Advisory Committee Comments to Rule 3(f)

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that states:

This subdivision specifies the content of the notice of appeal. The purpose of the
notice of appeal is simply to declare in a formal way an intention to appeal. As long
as this purpose is met, it is irrelevant that the paper filed is deficient in some other
respect. Similarly, the notice of appeal plays no part in defining the scope of
appellate review. Scope of review is treated in rule 13. This subdivision read in
conjunction with rule 13(a) permits any question of law to be brought up for review
as long as any party formally declares an intention to appeal in timely fashion.

The Court interpreted the Comments to Rule 3(f) to suggest that compliance with that
provision should be determined under a broad interpretation that focuses on intent and noted that,
as the commentary indicates, Rule 13 often comes into play in the Court’s consideration of the
efficacy of notices of appeal. Rule 13(a) governs the scope of review on appeal and provides that
“any question of law may be brought up for review and relief by any party.” Tenn. R. App. P. 13(a).
The Court then consulted the Advisory Committee Comment to Rule 13(a) that states:

This subdivision rejects use of the notice of appeal as a review-limiting device.
In federal practice the notice of appeal has limited review in two principal ways.
Some courts have limited the questions an appellant may urge on review to those
affecting the portion of the judgment specified in the notice of appeal. However,
since the principal utility of the notice of appeal is simply to indicate a party's
intention to take an appeal, this limitation seems undesirable. The federal courts have
also limited the issues an appellee may raise on appeal in the absence of the
appellee's own notice of appeal. Here again, since neither the issues presented for
review nor the arguments in support of those issues are set forth in the notice of
appeal, there seems to be no good reason for so limiting the questions an appellee
may urge on review. The result of eliminating any requirement that an appellee
file the appellee's own notice of appeal is that once any party files a notice of
appeal the appellate court may consider the case as a whole. (emphasis added).

The Court then reviewed multiple cases where the Court of Appeals had considered
questions regarding the sufficiency of a notice of appeal and observed that most of the cases
indicated either a strict application of Rule 3(f) or else an approach declining to use that rule as an
issue-limiting device and concentrating instead on the purpose of the notice of appeal. Thompson,
*12.

The Thompson Court, held that the appellate court could consider issues contained
in orders or judgments that were not specifically designated in the notice of appeal, and declined to
interpret Tenn. R. App. P. 3(f) as an issue-limiting device. Cases relied on by the Thompson Court

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that are most factually similar to the case before us are Gliddon v. Glidden, No. 86-320-II, 1987 WL
9452 at *1-2 (Tenn. Ct. App. Apr. 16, 1987); and J.W.G. v, T.L.H.G., No. M2002-02656-COA-R3-
JV, 2003 WL 22794537 at *3 (Tenn. Ct. App. Nov. 25, 2003).

Tennessee Farmers cites Grigsby v. Univ. Tenn. Med. Ctr. , No. E2005-010199-COA-
R3-CV, 2006 WL 408053 (Tenn. Ct. App. Feb. 22, 2006) and Goad v. Pasipanodya, No. 01A02-
9509-CV-00426 1997 WL 749462 at *2 (Tenn. Ct. App. Dec. 5, 1997) to support its contention that
Rule 3 (f) should be narrowly construed. These cases are easily distinguishable from this case, as
Thompson points out, because both cases involved separate orders, each immediately appealable,
dismissing independent defendants, and the holding of each was about the timing of the filing of the
notice of appeal and not about the content of the notice of appeal. Thompson 2007 WL 2405130 at
* 15 - 16. We conclude this issue is without merit and rely on the Thompson case’s analysis.

The next issue is the propriety of the summary judgment on Coverage C. The Trial
Court in granting partial summary judgment stated that plaintiffs did not file their completed proof
of loss until more than seven months after the submission of the proof of loss form to them by
Tennessee Farmers in July 2000 and more than nine months after the fire. The Court found that the
record contained no excuse for this delay, and granted the judgment.

Plaintiffs argue the judgment should be reversed because they had raised issues of
material fact in their response to Tennessee Farmers’ statement of material facts not in dispute with
a document styled “Plaintiffs’ Response to Defendant’s Motion for Partial Summary Judgment and
Plaintiffs’ Motion to Revise the Court’s Previous Rulings Pursuant to Rule 54.02" and a
“Supplemental Memorandum in Opposition to Defendant’s Motion for Partial Summary Judgment
[Under] Coverage C”. Plaintiffs do not cite to or rely on their response to Tennessee Farmers’
statement of material facts not in dispute that they filed in December 2005 along with the
supplemental response to defendant’s motion in their brief. Plaintiffs claim that the documents they
do rely on identified papers and statements that contradicted the facts set forth in Tennessee Farmers’
statement of material facts not in dispute, which made summary judgment inappropriate.

Tennessee Farmers argue that plaintiffs’ responses to its statement of material fact
not in dispute were improper and should not be considered. The Trial Court did not accept plaintiffs’
first attempt to respond to Tennessee Farmers’ statement of material facts not in dispute or its second
response as it held there were no material facts in dispute. We conclude that the second response was
not sufficient to met the requirements of Tenn. R. Civ. P. 56.03 as it responded to fourteen facts
when defendant had only set forth nine material facts. The earlier response to defendant’s statement
of material facts set forth in the document entitled “Plaintiffs’ Response to Defendant’s Motion for
Partial Summary Judgment and Plaintiffs’ Motion to Revise the Court’s Previous Rulings Pursuant
to Rule 54.02" has two deficiencies. The first is that none of the documents attached to that
response would be admissible in evidence as required by Tenn. R. Civ. Pro. 56.06 as they are all
hearsay and were not authenticated by Mr. Cox or anyone else by affidavit. Second, the response

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filed in 2003 was superceded by plaintiffs’ December 2005 response to defendant’s statement of
material facts. The December response stated that only two of defendant’s nine stated material facts
were disputed. The remaining seven material facts were undisputed.

Accordingly, both responses to defendant’s statement of material fact are problematic
and it was within the Trial Court’s discretion not to consider these responses. The purpose of the
requirements of Tenn. R. Civ. P. 56.03 is to “assist the Court in focusing on the crucial portions of
the record” in determining whether there is a genuine issue requiring a trial on the merits. See
Advisory Committee Comment to Tenn. R. Civ. P. 56.03. We have held that a nonmoving party's
failure to comply with Rule 56.03 may result in the trial court's refusal to consider the factual
contentions of the nonmoving party even though such facts could be ascertained from the record.
Owens v. Bristol Motor Speedway, Inc. 77 S.W.3d 771, 774 (Tenn. Ct. App.,2001)(citations
omitted).

A trial court, acting within its discretion, may waive the requirements of the Rule
56.03 under certain circumstances. Owens at 774 - 775. There is no indication here that the Trial
Court considered or did not address the issue of waiver in its order. The Record shows the Trial
Court held there were no issues of material fact, and based on the poor quality and confusing nature
of plaintiffs’ responses to defendant’s statement of material facts and considering the discretionary
nature of the decision in the Trial Court’s discount of plaintiffs’ responses as they did not comport
with Rule 56.03, it was not error.

Assuming arguendo that the Court considered responses filed in December 2005,
the response was not sufficient to raise issues of material fact. The issues central to the Court's
evaluation of a motion for summary judgment are whether a factual dispute exists, whether the
disputed fact is material to the outcome of the case, and whether the disputed fact creates a genuine
issue for trial. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). Plaintiffs disputed only two of the
material facts, numbers 2 and 9, set forth by defendant. Plaintiffs’ response to number 2 states:
“[d]isputed that Plaintiffs failed to provide timely authorization” because defendant had stated in
an earlier filed document that it had received both authorizations and permission on May 30, 2000,
and June 1, 2000, respectively.” This response is apparently, but not certainly, relative to defendant’s
statement of material facts not in dispute number 2 that the Coxes had failed to provide immediate
authorizations to Tennessee Farmers necessary to its investigation of their financial condition and
background and had failed and refused to provide Tennessee Farmer access to the loss site for the
purposes of conducting a cause and origin investigation.” But most importantly, the fact that the
Coxes may or may not have cooperated with Tennessee Farmers’ cause and origin investigation soon
after the fire is not material to the issues raised by the motion for summary judgment on Coverage
C. Only the issue of the delay in providing the proof of loss is material to this motion.

Plaintiffs also apparently disputed defendant’s statement regarding when Tennessee
Farmers was able to inspect the site of the fire loss to determine if the contents claimed to have been

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destroyed were in the dwelling prior to the fire. Plaintiffs’ exact response number 9 is: “Disputed.
Inspection of the fire scene was undertaken by the Defendant on June 8, 2000" as stated by
Tennessee Farmers’ in an earlier filed document. This response is deceptive because Tennessee
Farmers was allowed by plaintiffs to inspect the premises on June 8, 2000 as part of its cause and
origin investigation. Paragraph 9 of defendant’s statement of material facts is that it could not inspect
for evidence that the contents claimed were present before the fire because it did not receive the
proof of loss of contents until nine months after the fire. The cause and origin investigation on June
8th and the contents investigation that never occurred were not the same. Mr. Smith established in
his affidavit that the content investigation could not occur until after the proof of claim of contents
loss was provided because he needed to look for evidence that the items claimed had been in the
dwelling at the time of the fire. Without a list of the contents claimed to be damaged he would not
know what to look for. Accordingly, plaintiffs did not create a genuine issue of material fact
regarding the investigation on the contents claim under Coverage C and the Trial Court correctly
found that the responses did not raise material issues of fact in dispute.

Moreover, the Trial Court should not have considered the nine exhibits attached to
the “Supplemental Memorandum in Opposition to Defendant’s Motion for Partial Summary
Judgment Coverage C” as plaintiffs/appellants urge this Court to do. The documents consisted of
(1) a letter from Vickie Knight to Mr. Cox; a November 14, 2000 letter from Mr. Cox to Tennessee
Farmers; a November 13, 2000 letter from Mr. Knolton to Mr. Cox; a September 12, 2000 letter
from Mr. Knolton to Mr. Judson; a January 5, 2001 letter from Mr. Knolton to Mr. Cox; an April
3, 2001 letter from Mr. Knolton to Mr. Judson; an April 27, 2001 letter from Mr. Knolton to Mr.
Judson; a May 8, 2001 letter from Mr. Knolton to Mr. Judson; and a March 8, 2001 letter from Mr.
Knolton to Mr. and Mrs. Cox.

These documents, like the documents attached to “Plaintiffs’ Response to
Defendant’s Motion for Partial Summary Judgment and Plaintiffs’ Motion to Revise the Court’s
Previous Rulings Pursuant to Rule 54.02" are not admissible in evidence as they have not been
authenticated. Tenn. R. Civ. P. Rule 56.06 provides:

Supporting and opposing affidavits shall be made on personal knowledge, such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. . . .

Plaintiffs merely attached these nine documents to their memorandum, and did not
have the documents authenticated by affidavit. See Dalton v. Dale, No. M2002-01205-COA-R3-
CV, 2003 WL 726669 (Tenn. Ct. App. Mar. 4, 2003). See also Price v. Becker, 812 S. W. 2d 597,
598 (Tenn. Ct. App. 1991).

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 The subject policy of insurance requires the insured to provide Tennessee Farmers
a proof of loss within sixty days of the loss in the cooperation section of the policy. It is undisputed
that plaintiffs did not provide a complete proof of loss for contents under coverage C until nine
months after the fire and that coverage for loss of contents was denied due to plaintiffs’ tardiness.
The only excuse for delay offered by plaintiffs is that Tennessee Farmers did not send a certified
copy of the policy to plaintiffs until more than six months after the fire. The plaintiffs do not explain
why a certified copy of the policy was necessary before they could proceed with preparing a proof
of loss or why the copy of the policy Ms. Knight sent to plaintiffs in July 2000 did not suffice. In
their last analysis, plaintiffs argue Tennessee Farmers, by its actions, waived the sixty day provision
in the policy and is estopped from relying on the sixty day provision to justify denial of coverage
under Coverage C. The insured’s failure to produce a sworn proof of loss within the time period
required in the policy is fatal to the claim unless the conditions are waived by the insured. Central
National Ins. Co. Of Omaha v. Mfr’s. Acceptance Co., 544 S. W. 2d 362, 364 (Tenn. 1976). The
Supreme Court in that case found that the plaintiff, who had failed to file a proof of loss as required
by the policy of insurance, had “breached material conditions of the policy”. The Court explained:

[Plaintiff] has failed, without excuse, to file a sworn proof of loss and has refused to
respond to repeated requests of insurer that he make himself available to the
Company for discussion of the alleged loss. The policy clearly requires that he
perform these acts, and conditions the liability of the Company upon their
performance. The breach of such conditions, unless waived by the insurer, prevents
a recovery upon the insurance contract; and, there is no such waiver here. The filing
of the requisite proof of loss may obviate the necessity for giving notice of loss, but
the giving of notice of loss does not satisfy the requirement that proof of loss be filed.

Central National, 544 SW2d at 364 (internal citations omitted).

Tennessee Farmers relies on Scot v. Exchange Mut. Ins. Co., No. 86-45-11, 1986 WL
6276 (Tenn. Ct. App. Jun. 4, 1986)(aff’d 1987 WL 15298 (Tenn. Aug. 10, 1987), a factually similar
case to this case. In that case, the insurer argued that the delay in filing a proof of loss was
prejudicial to the insurer and continued this failure resulted in the forfeiture of plaintiffs’ right to
recover. This Court agreed and explained how the insurer was prejudiced by the late filing of the
proof of loss as follows:

[T]he adjuster was not able to make . . . an appraisal of loss of personal property by
an examination of the remains. In order to make an intelligent examination and
verification of loss of personal property, it was necessary for him to have a list of the
property lost and its claimed value so that he might search the ruins for evidences of
the existence of such property, its value and its damage. Only plaintiff was in a
position to furnish such a list, and plaintiff delayed six months and one day. During

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 such a period, in the ordinary course of events, the remains of personal property
would probably be so disturbed or altered by the vandals or curiosity seekers as to
seriously impair ability of defendant to verify the claim of plaintiff.

Scott at * 7.

Here, Tennessee Farmers has shown through the affidavit of Mr. Smith, that it was
unable to assess whether the contents claimed in the late filed proof of loss were actually in the
dwelling at the time of fire as nine months had passed since the fire and plaintiffs did not properly
contest this statement by affidavit. However, plaintiffs argue that Tennessee Farmers waived the
sixty day proof of loss provision by its actions. They rely on Bush v. Exchange Mut. Ins. Co. 866
S.W.2d 575 (Tenn. App. 1993). While Bush certainly explains the rule that under certain
circumstances the actions of an insurer will constitute waiver of the cooperation provisions of a
policy of insurance, plaintiffs’ reliance on the nine documents that were attached to their
supplemental opposition to defendant’s motion for summary judgment as support for their contention
of waiver were not considered by the Trial Court, and as we held were not properly put before the
Trial Court and are not admissible in evidence. Here the plaintiffs failed to respond with proof to
create a genuine issue of material fact regarding the waiver of the policy provisions by Tennessee
Farmers. Accordingly, we affirm the partial summary judgment as to coverage found by the Trial
Judge. We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed
one-half to plaintiffs and one-half to defendant.

______________________________
HERSCHEL PICKENS FRANKS, P.J.

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