Alcazar v. Hayes

IN THE COURT OF APPEALS OF TENNESSEE

FILED
DAVID ALCAZAR, ) C/A NO. 03A01-9707-CV-00285
) October 30, 1997

) Cecil Crowson, Jr.
) Appellate C ourt Clerk
v. )
)
)
)
)
CHRISTOPHER HAYES, ) APPEAL AS OF RIGHT FROM THE
) BRADLEY COUNTY CIRCUIT COURT
Defendant, )
)
)
and )
)
)
GOVERNMENT EMPLOYEES )
INSURANCE COMPANY, )
)
Uninsured Motorist ) HONORABLE EARLE G. MURPHY,
Carrier-Appellee. ) JUDGE

For Appellant For Appellee

JIMMY W. BILBO DONALD W. STRICKLAND
Logan, Thompson, Miller, Bilbo, Grant, Konvalinka & Harrison, P.C.
Thompson & Fisher, P.C. Chattanooga, Tennessee
Cleveland, Tennessee

OPINION

AFFIRMED AND REMANDED Susano, J.

1
 This appeal causes us to focus on the uninsured

motorist provisions of an automobile insurance policy issued by

Government Employees Insurance Company (“GEICO”) to Deborah

Wheatley, the mother of the plaintiff David Alcazar. When this

action was commenced, process was issued and served on GEICO

pursuant to the provisions of T.C.A. § 56-7-1201, et seq., the

Tennessee uninsured motorist statutes. The trial court granted

GEICO’s motion for summary judgment, finding that the plaintiff

had failed to comply with the notice requirements of GEICO’s

policy. Plaintiff appealed, arguing, in his words, that the

trial court “err[ed] in granting [GEICO’s] motion for summary

judgment, on the basis that timely notice was a condition

precedent to recovery under the policy, absent a finding of

unreasonable delay or prejudice to the insurer.” We affirm.

The accident at issue in this case occurred in Bradley

County on November 3, 1995. The plaintiff was riding “on the

trunk of [the defendant Christopher Hayes’] car.” He was riding

there because Mr. Hayes had refused to let him ride inside the

car.1 Because of the alleged negligence of the defendant Hayes,

the plaintiff “was flung from the trunk of the car onto White

Road where he hit his head on the paved roadway.” At the time of

the accident, the plaintiff, who was then 18 years old, was

living with and working for his mother on the farm owned by her

and her husband. He was a high school graduate.

1
This was because the plaintiff was dirty, having worked that day in the
chicken houses on his mother’s farm.

2
 As a result of the accident, the plaintiff was

transported to Erlanger Hospital in Chattanooga, where he was

admitted to the intensive care unit of that facility. He

remained in intensive care for three days. Thereafter, he was

transferred to a room, where he stayed for one or two more days.

When he was released from the hospital, he returned to his

mother’s house, where he remained until he moved out in January,

1996.

The plaintiff’s answers to interrogatories reflect that

he claims the following injuries from the accident:

I have permanent brain damage, fractured
skull, bruised brain two bilateral cerebral
contusions, back strain, muscle spasms and
neck pain. I also suffer from left wrist
pain.

On October 28, 1996, the plaintiff and his mother first

met with the attorneys who later filed this action. The

complaint was filed on October 30, 1996. The only named

defendant was Christopher Hayes. As previously indicated, Mrs.

Wheatley’s insurance company -- GEICO -- was brought into this

action pursuant to the Tennessee uninsured motorist statutes.

The policy of insurance issued by GEICO to Mrs.

Wheatley contains the following pertinent provisions in its

uninsured motorist section:

1. NOTICE

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 As soon as possible after an accident notice
must be given us or our authorized agent
stating:

(a) the identity of the insured;

(b) the time, place and
details of the accident;
and

(c) the names and addresses
of the injured, and of
any witnesses.

* * *

3. ACTION AGAINST US

Suit will not lie against us unless the
insured or his legal representative have
fully complied with all the policy terms.

(Italics in original). The plaintiff was a named driver in Mrs.

Wheatley’s policy. He was an “insured” under the policy.

Mrs. Wheatley testified by deposition that “around the

same time” the lawsuit was filed, she spoke to a representative

of GEICO and told that person that she “did not want to make a

claim.” She also testified that she changed her mind when she

later learned that her son had suffered a serious brain injury.

GEICO was served with process in this case on November

4, 1996. By letter to Mrs. Wheatley dated November 12, 1996,

with a copy to her attorneys, GEICO “acknowledge[d] receipt of an

accident report dated November 6, 1996,2 in regard to an auto

accident in which, David Alcazar, was involved.” Apparently, the

accident report was mailed to GEICO by Mrs. Wheatley or the

2
It is unlikely the accident report was dated “November 6, 1996,” since
the accident occurred on November 3, 1995. The date of November 6, 1996, may
represent a “slip of the pen.”

4
attorneys who filed this suit. While the record does not clearly

reflect the precise date on which GEICO received the accident

report, it is clear that it was sometime around the time the

lawsuit was filed on October 30, 1996.

When asked why the requisite notice was not given to

GEICO at an earlier time, both the plaintiff and his mother

testified that it was because the plaintiff was not driving.

An appellate court, when reviewing a grant of summary

judgment, must decide anew if judgment in a summary fashion is

appropriate. Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991). We must affirm the grant of summary

judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, 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.” Rule 56.03, Tenn.R.Civ.P.3

“Insurance contracts are subject to the same rules of

construction and enforcement as apply to contracts generally.”

McKimm v. Bell, 790 S.W.2d 526, 527 (Tenn. 1990); see also

Allstate Ins. Co. v. Wilson, 856 S.W.2d 706, 708 (Tenn.App.

1992); Whaley v. Underwood, 922 S.W.2d 110, 112 (Tenn.App. 1995).

Therefore, generally speaking, courts must enforce contracts as

written, absent fraud or mistake. Id.

3
This principle is now found in Rule 56.04. The change was effective
after the hearing below.

5
 In Lee v. Lee, 732 S.W.2d 275 (Tenn. 1987), the Supreme

Court addressed notice provisions that are conceptually identical

to the one at issue in this case. That court held that such

provisions require “notice within a reasonable time under the

circumstances of the case.” Id. at 276. The Supreme Court

further expounded on this notice requirement by stating that it

...impos[es] a duty on an insured to give
notice when he becomes, or should become
aware of, facts which would suggest to a
reasonably prudent person that the event for
which coverage is sought might reasonably be
expected to produce a claim against the
insurer.

Id. The Lee case also examines those situations where a claimant

contends that he or she did not know, until shortly before giving

notice, that a policy of insurance existed that provided

uninsured motorist coverage, or did not know that the alleged

tortfeasor was uninsured:

...it is...a general rule that in order for
ignorance of coverage to excuse an insured or
additional insured from following the
procedures set out in an insurance policy, it
must be shown that the claimant exercised due
diligence and reasonable care in ascertaining
that there was coverage under the policy.

Id. The Supreme Court in Lee also held that “[w]here the facts

and inferences are undisputed that notice was not given within

the time required by the policy, the reasonableness of the delay

becomes a question of law for the court.” Id.

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 The plaintiff admits that notice as required by the

policy was not given to GEICO until some 12 months after the

accident occurred. On its face, notice given 12 months after the

fact is not prompt notice. Therefore, we must determine if the

delay in giving notice in this case was reasonable “under the

circumstances of [this] case.” Id.

The plaintiff offers a number of reasons for his delay

in giving GEICO the requisite notice. As previously indicated,

he claims, as does his mother, that he did not give notice

because he was unaware that the uninsured motorist coverage

applied to him since he was not driving a vehicle at the time of

the accident. This claimed lack of knowledge of coverage is not

a legal justification for failing to give the requisite notice in

this case because there is nothing in the record to indicate that

the plaintiff “exercised due diligence and reasonable care in

ascertaining that there was coverage under the policy.” Lee, 732

S.W.2d at 276.

The plaintiff also argues that he suffered “permanent

brain damage” in the accident and that this should excuse the

delay in giving notice. The record before us does not disclose

the nature and extent of the plaintiff’s brain damage; nor does

it reflect how, if at all, this damage affected the plaintiff’s

cognitive functions. We do know from the plaintiff’s answers to

interrogatories that he had worked and attended school since the

accident. The plaintiff’s “bare bones” statement that he

suffered permanent brain damage is insufficient, standing alone,

7
to excuse his compliance with the notice provisions of the

subject policy.

The facts supporting GEICO’s motion make out its claim

for relief. On the other hand, the facts presented by the

plaintiff in opposition to GEICO’s properly supported motion for

summary judgment do not establish a legal basis for excusing the

late notice in this case.

The type of notice at issue in this case has been

labeled by the courts of this state as “a vital and indispensable

condition precedent to recovery under the policy.” Hartford

Accident and Indemnity Co. v. Creasy, 530 S.W.2d 778, 779 (Tenn.

1975). “The general purpose of a notice provision is to make the

insurer aware that a claim may be forthcoming and provide an

adequate opportunity for investigation.” Allstate Insurance Co.

v. Fitzgerald, 743 F.Supp. 539, 542 (W.D. Tenn. 1990).

The plaintiff argues that his failure to give GEICO the

requisite notice should not defeat coverage in this case because

the insurance company failed to show that it was prejudiced by

the late notice. It is true that there is no showing of actual

prejudice in the record; but it is clear that controlling

precedent does not require a showing of such prejudice. Phoenix

Cotton Oil Co. v. Royal Indemnity Co., 205 S.W. 128, 130 (Tenn.

1918); Hartford Accident and Indemnity Co., 530 S.W.2d at 779

(Tenn. 1975) (“there need not be any showing of prejudice.”)

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 The Eastern Section of the Court of Appeals has

previously expressed its feeling that the plaintiff’s “no

prejudice” argument is “appealing,” North River Ins. Co. v.

Johnson, 757 S.W.2d 334, 335-36 (Tenn.App. 1988) (Franks, J.);

however, as we expressed in the North River Ins. Co. case, the

arguments supporting the plaintiff’s position on the question of

prejudice “are based on public policy considerations, which are

to be declared by the Supreme Court and the legislative branch.”

Id. at 336. It is not our prerogative to overrule controlling

Supreme Court precedent.

We have examined all of the Tennessee authority4 cited

by the plaintiff. We do not find that any of it supports the

plaintiff’s position in this case. His authority from other

jurisdictions,5 while supportive of his basic argument regarding

prejudice, does not express the law of this State; in fact, they

are all contrary to controlling Supreme Court precedent holding

that an insurer does not have to show a lack of prejudice in a

case such as the one before us.

The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant and his surety. This case is

4
Tennessee Farmers Mutual Insurance Co. v. Anderson, 1989 WL 22698
(Tenn.App. 1989); Nationwide Mutual Insurance Co. v. Shannon, 701 S.W.2d 615
(Tenn.App. 1985); White v. Tennessee Farmers Mutual Insurance Co., 1996 WL
219674 (Tenn.App. 1996); McKimm v. Bell, 1988 WL 126835 (Tenn.App. 1988),
affirmed by the Tennessee Supreme Court at 790 S.W.2d 526 (Tenn. 1990);
Reliance Insurance Co. v. Athena Cablevision Corp., 560 S.W.2d 617 (Tenn.
1977).
5
Canron, Inc. v. Federal Insurance Co., 82 Wash.App. 480, 918 P.2d 937
(1996); General Accident Ins. Co. v. Scott, 107 Md.App. 603, 669 A.2d 773
(1996); Schroth v. New Mexico Self-Insurers Fund, 113 N.M. 708, 832 P.2d 399
(1992); Weaver v. State Farm Mut. Auto. Ins. Co., 936 S.W.2d 818 (Mo. 1997).

9
remanded to the trial court for the collection of costs assessed

below, pursuant to applicable law.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

_______________________
Herschel P. Franks, J.

_______________________
William H. Inman, Sr.J.

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