IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE April 16, 1999
Cecil Crowson, Jr.
Appellate C ourt
JEFFREY ALAN NICELY and ) C/A NO. Clerk
03A01-9810-CV-00322
wife, ALLISON NICELY, )
)
Plaintiffs-Appellees, )
)
)
)
v. )
)
) INTERLOCUTORY APPEAL FROM THE
) CAMPBELL COUNTY CIRCUIT COURT
JOHN DOE, an unknown person, and ) PURSUANT TO RULE 9, T.R.A.P.
JANE DOE, an unknown person, )
)
Defendants, )
)
and )
)
)
LIBERTY MUTUAL INSURANCE )
COMPANY, )
) HONORABLE CONRAD TROUTMAN,
Appellant. ) JUDGE
For Appellant For Appellee
FRANCIS A. CAIN NORBERT J. SLOVIS
ROBERT L. KAHN Knoxville, Tennessee
Knoxville, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
We granted this interlocutory appeal to determine if
the complaint in this case states a cause of action against the
plaintiffs’ uninsured motorist carrier, Liberty Mutual Insurance
Company (“Liberty”). We find that it does not. Accordingly, we
reverse the trial court’s finding to the contrary and dismiss the
plaintiffs’ complaint.
I. Procedural History
The plaintiffs’ complaint alleges, in pertinent part,
as follows:
On July 26, 1997 at or around 2:20 P.M.,
Plaintiff was driving a 1985 Honda Accord in
a southerly direction on I-75....
Defendant, John Doe I, an unknown person was,
at said time and place, operating a motor
vehicle and was traveling south bound on I-75
in Campbell County, Tennessee.
Jane Doe, an unknown person, was, at said
time and place, operating a motor vehicle and
was traveling south bound on I-75 in Campbell
County, Tennessee.
John Doe, an unknown person was a passenger
in said vehicle being driven by Jane Doe and
as the Plaintiff was passing the vehicle
occupied by the defendants, Jane Doe and John
Doe, John Doe threw a bag containing trash,
or some other matter, at the vehicle that the
Plaintiff was driving. The Plaintiff swerved
to miss the flying debris thrown by John Doe
and lost control of the vehicle..., the
vehicle in which the Plaintiff was driving
left the roadway, striking a tree.
At all times relevant hereto, the Defendant,
Jane Doe, an unknown person, owed a duty to
operate her vehicle in a reasonable and
prudent manner with regard to other persons
who were lawfully upon the street including,
the Plaintiff, Jeffrey Alan Nicely.
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The Defendant, Jane Doe, owed a duty to
refrain her passengers, including the
Defendant, John Doe, from acts that would
constitute a danger to other vehicles,
particularly the Plaintiff, Jeffrey Alan
Nicely.
The wreck that resulted in the Plaintiff’s
injury was a direct result of the negligence
of the Defendants. At all times mentioned
herein, the Plaintiff was free of negligence
and comparative negligence.
The requirements of T.C.A. §56-7-1021 [sic]
were further met in that the existence of the
Defendants, Jane Doe and John Doe, unknown
persons, and their negligence is established
by witnesses who were not occupants of the
Plaintiff’s vehicle, the wreck was timely
reported to the applicable law enforcement
authorities and the Plaintiff was not
negligent in determining the identity of the
other vehicle and the owner operator of the
other vehicle at the time of the accident.
* * *
Upon information and belief, Plaintiff has
applicable uninsured motorist coverage with
Liberty Mutual Insurance Company.
Upon information and belief, Defendant Jane
Doe, an unknown person, and John Doe, an
unknown person, were uninsured motorists at
all times relative hereto. Therefore,
consistent with T.C.A. §56-7-1206, a copy of
the summons and complaint herein are being
served upon the applicable uninsured
motorists carrier, Liberty Mutual Insurance
Company, which may be served through the
Tennessee Department of Insurance.
Liberty filed a motion to dismiss pursuant to Rule 12.02(6),
Tenn.R.Civ.P., contending that the plaintiffs’ complaint
“fail[ed] to state a claim upon which relief can be granted.” By
way of a subsequent paragraph, the motion asserts “that there is
no coverage available to plaintiffs pursuant to T.C.A. § 56-7-
1201 for want of physical contact between the vehicles operated
by [plaintiff] Jeffrey Alan Nicely and the defendants.” The
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trial court denied Liberty’s motion. Acting upon the insurance
company’s request, the lower court granted an interlocutory
appeal pursuant to the provisions of Rule 9(b), T.R.A.P. We
subsequently concurred in the trial court’s grant by entering our
own order pursuant to Rule 9(e), T.R.A.P.
For the purpose of this appeal, Liberty concedes that
the plaintiffs’ complaint satisfies the cumulative provisions of
T.C.A. § 56-7-1201(e)(1)(B), (e)(2), and (e)(3) with respect to
the absence of physical contact. However, it argues that the
alleged incident -- the throwing of “a bag containing trash, or
some other matter, at the vehicle” of the plaintiff Jeffrey Alan
Nicely -- is not such as to make out an event covered by the
standard provisions of an automobile liability insurance policy.
It contends that uninsured motorist coverage under T.C.A. § 56-7-
1201 is not available in the absence of such an event.
II. Standard of Review
The trial court’s denial of a motion to dismiss for
failure to state a claim upon which relief can be granted
presents a question of law, which we review de novo with no
presumption of correctness. Stein v. Davidson Hotel Co., 945
S.W.2d 714, 716 (Tenn. 1997); Owens v. Truckstops of America, 915
S.W.2d 420, 424 (Tenn. 1996); Daniel v. Hardin Co. Gen. Hosp.,
971 S.W.2d 21, 23 (Tenn.App. 1997). We must examine the
complaint alone, “construe the complaint liberally in the
plaintiff’s favor and take the allegations of the complaint as
true.” Pursell v. First American Nat’l Bank, 937 S.W.2d 838, 840
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(Tenn. 1996); Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d
934, 938 (Tenn. 1994); Daniel, 971 S.W.2d at 23. The motion
should be denied “unless it appears that the plaintiff can prove
no set of facts in support of [his] claim that would entitle
[him] to relief.” Stein, 945 S.W.2d at 716; Cook, 878 S.W.2d at
938.
At this juncture in the proceedings, the relevant
operative facts are these: the plaintiff, Jeffrey Alan Nicely,
was injured when he swerved his vehicle and crashed, as a
reaction to an unidentified person in an unidentified vehicle
throwing “debris” at the vehicle being operated by Mr. Nicely.
For the purpose of our discussion, we presume that the other
vehicle was uninsured.
III. Analysis
The determinative issue in this case is whether
uninsured motorist coverage is implicated when a passenger in a
presumed-to-be-uninsured vehicle negligently throws an object in
the direction of another vehicle, causing the second vehicle to
“swerve[] to miss the flying debris.” We recognize that the
complaint does not specifically allege that the throwing was done
negligently; but, by the same token, it does not allege that the
passenger threw the debris intending to strike Mr. Nicely’s
vehicle or otherwise impede or affect the intended movement of
that vehicle. “[C]onstru[ing] the complaint liberally in the
plaintiff’s favor,” as we are required to do, see Pursell, 937
S.W.2d at 840, we interpret it to allege a careless or negligent
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throwing -- a littering as it were. This is consistent with the
complaint’s general allegations of negligence.
In general terms, uninsured motorist coverage is
designed to afford a measure of protection to one damaged as a
proximate result of the negligence of an uninsured or
underinsured individual or entity where that negligence arises
“out of the ownership, maintenance, or use of a motor vehicle.”
T.C.A. § 56-7-1201(a). See also Tata v. Nichols, 848 S.W.2d 649,
654 (Tenn. 1993).
In Travelers Insurance Co. v. Aetna Casualty & Surety
Co., 491 S.W.2d 363, 365 (Tenn. 1973), the Supreme Court
interpreted the phrase “arising out of the use” of a vehicle in a
liability policy to be:
a broad, comprehensive term meaning
“origination from,” “having its origin in,” “
growing out,” or
“flowing from.” (citations omitted). The
term “use,” then, has been a general catch-
all term construed by the courts to include
all proper uses of a vehicle. Appleman,
Insurance Law and Practice, § 4316 (1962).
Id.
In Anderson v. Bennett, 834 S.W.2d 320, 323 (Tenn.App.
1992), we applied the Travelers analysis and held that a gun
fired by an angry motorist into a group of children was not a
“proper or normal use of the vehicle.” Anderson, 834 S.W.2d at
323.
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As we pointed out in the unpublished case of McKeehan
v. Doe, 1984 Tenn.App. LEXIS 2664 (E.S., filed February 7, 1984),
“the victim of an unidentified tortfeasor should not be afforded
any greater protection than the victim of a known tortfeasor.”
Id. at *7. In McKeehan, we quoted, with approval, the following
comments of the trial judge:
If the unknown driver in this case was known
and if this driver had liability insurance
such liability insurance would not cover such
a driver for the tort complained of - i.e.
the assault and battery (negligent or
deliberate) of another with an object such as
a soft drink or beer bottle; it would make no
difference whether such an assault occurred
while in the process of operating an
automobile or not under the standard
provisions of an automobile liability policy.
Therefore, it logically follows that since
there would be no coverage under a standard
policy there should be no coverage under the
insured (sic) motorist provisions of a
policy.
Id. at *8-9.
The plaintiffs argue that the rationale of Fruge v.
Doe, 952 S.W.2d 408 (Tenn. 1997), entitles them to relief. We
disagree. The facts in Fruge and the facts in the instant case
are clearly distinguishable. In Fruge, a vehicle was allegedly
parked in the roadway -- a condition that caused the plaintiff to
swerve his vehicle in order to avoid a collision. The court in
Fruge found evidence indicating that there was in fact an
abandoned vehicle blocking the roadway which caused the
plaintiff’s accident. Id. at 412. In the instant case, debris
was thrown by a passenger from a moving vehicle, causing the
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plaintiff Mr. Nicely to swerve to avoid it. We find and hold
that the act of throwing debris does not implicate the uninsured
motorist coverage. The legislature did not intend uninsured
motorist coverage “to provide broad coverage amounting to
personal injury protection.” Bruno v. Blankenship, 876 S.W.2d
294, 297 (Tenn.App. 1992). See also Dockins v. Balboa Insurance
Co., 764 S.W.2d 529, 532 (Tenn. 1989); Tate v. Doe, 1990
Tenn.App. LEXIS 60 (E.S., filed January 31, 1990). Our role is
to effectuate the intent of the legislature, not to expand a
statute’s coverage beyond its intended scope. Tibbals Flooring
Co. v. Huddleston, 891 S.W.2d 196, 198 (Tenn. 1994).
In summary, plaintiff’s accident was not caused,
directly or indirectly, by a motor vehicle but rather by an
improper act of an occupant of a car -- an act that was
essentially unrelated to the act of using that vehicle. Throwing
something out of the window of a car is not a “proper or normal
use” of a motor vehicle. Anderson, 834 S.W.2d at 323. It is not
an act that is covered by liability insurance and hence is not an
event that implicates uninsured motorist coverage under a policy
of insurance issued pursuant to T.C.A. § 56-7-1201.
The judgment of the trial court is reversed. The
plaintiffs’ complaint as to Liberty is dismissed at their costs,
including the costs of this appeal. This case is remanded for
the entry of an appropriate order, consistent with this opinion;
for such further proceedings as may be required as to the
remaining defendants; and for collection of costs assessed below,
all pursuant to applicable law.
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__________________________
Charles D. Susano, Jr., J.
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CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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