Bolin v. Tennessee Farmer's Mutual Insurance Co.

WM. I. DAVIS, Jr., Special Justice,

dissenting.

I respectfully dissent from the majority opinion.

The majority opinion accurately details the facts, the sequence of events in this litigation and the issues for determination.

The pertinent portion of Section 56-7-1206 T.C.A., (formerly 56-1153 T.C.A.), is as follows;

“Any insured intending to rely on the coverage required by Sections 56-7-1201-56-7-1206 shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name;___."

In the statute quoted it is only the appellants on whom an affirmative duty to take certain action is found, namely, serve copies of the process on their own insurance carrier. Rights of the insurance carrier are optional. It may be noted also that the word “shall” is used in connection with the insured’s duty. The general rule is that the word "shall” ordinarily is construed to be mandatory rather than merely directory. Louisville and Nashville Railroad Company v. Hammer, 191 Tenn. 700, 236 S.W.2d 971; Stubbs v. State of Tennessee, 216 Tenn. 567, 393 S.W.2d 150.

There here appears a factual situation not unheard of but certainly not common. Appellants did not serve copies of the process in their actions against Cameron upon appellee. Appellants believed as did appel-lee that Cameron had insurance coverage by State Automobile Mutual Insurance Company. Neither appellants or appellee misrepresented any fact to the other or did anything to mislead the other about Cameron’s insurance coverage or lack of coverage. Neither learned or had reason to suspect that Cameron was uninsured until after the appellants’ judgments against Cameron had become final. Appellee had no reason to take cognizance of appellants’ tort actions against Cameron until Cameron and Renfro Construction Co. instituted their actions *570against Bolin. Appellee then began active defense of Bolin and it and appellants cooperated in the defense of Bolin and the prosecution of appellants’ actions against Cameron. It appears therefore that appellants had no reason to believe they should serve process on appellee and appellee had no reason to believe that it would ever be placed in a position requiring/ it to exercise its option to defend Cameron. Whatever opportunities existed to ascertain if Cameron was actually insured or uninsured were equally available to both parties.

I cannot agree that appellee was not prejudiced in any manner as a result of not being served with process. It was deprived of its option to defend Cameron on issues of liability and damages as well as the opportunity to attempt to negotiate settlements. In other words appellee did as a result of its lack of knowledge of the true situation, and being completely blameless as disclosed by the record, join in the offense against Cameron when it might very well have elected to provide defense for Cameron through other and different counsel. It can be insisted that appellants were also prejudiced due to their lack of the true facts but the statute placed on appellants the primary positive duty to act.

The case of Glover et al. v. Tennessee Farmer’s Mutual Insurance Company, 225 Tenn. 306,468 S.W.2d 727 had as the principal issue whether the uninsured motorist statutes authorized the insureds to institute actions under provisions of their uninsured motorist policy directly against the insurer. In holding that the insureds could not the court interpreted and construed the statutes. It was held that there is no alternative to the procedure therein established and that the section of T.C.A. above quoted provides the sole court remedy under the pertinent statutes in question.

It is argued that the uninsured motorist statutes were enacted to protect persons injured by negligent operation of vehicles of persons without liability insurance and that the quoted section of T.C.A. does not become operative until it is ascertained the person sued is uninsured. The purpose of the statute is for protection but the time it becomes operative is not necessarily subject to relaxation. The presumption is that it is constantly operative. If exceptions were to have been provided the legislature had and has subsequently had the opportunity to so enact any exceptions it considered proper. I believe the Glover case controls and that failure to serve process on appellee was fatal under the facts of this case.

Reliance is placed by appellants on the South Carolina case Gunnels v. American Liberty Insurance Co., 251 S.C. 242, 161 S.E.2d 822. In that case Gunnels had uninsured motorist coverage provided by appellant. Gunnels was injured by Hewitt in a vehicular collision, sued and obtained judgment. Later Hewitt became uninsured by reason of his insurance carrier becoming insolvent. It was held that appellant was liable to Gunnels under the peculiar circumstances of that case, the Court construing the South Carolina statutes in so doing.

It appears that the principal peculiar circumstances in the Gunnels case was that Hewitt, the “uninsured” motorist was actually insured until his insurer, American Liberty, became insolvent after the trial of the original tort action was completed. Here the “uninsured” motorist, Cameron, was at all times uninsured. The South Carolina court in Gunnels placed reliance for its conclusion on a decision by the Supreme Court of Virginia in the case of McDaniel v. State Farm Mutual, 205 Va. 815, 139 S.E.2d 806. However, in the Virginia case the plaintiff’s insurer had received written notice prior to trial of the tort action that defendant was uninsured.

There appears to be no provision of the insurance policy or the applicable statutes to justify under the facts of this case any relaxation of the requirement to serve the insurer with copies of the process. If exceptions to the specific directive in the statute are to be formulated they should be by legislative enactment rather than by judicial decision.

I would affirm the Court of Appeals.