Edward Martin v. Gregory Powers - Dissent ( 2016 )


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  •                 IN THE SUPREME COURT OF TENNESSEE
    AT NASHVILLE
    February 10, 2016 Session
    EDWARD MARTIN V. GREGORY POWERS ET AL.
    Appeal by Permission from the Court of Appeals
    Circuit Court for Williamson County
    No. 2013-347   James G. Martin III, Judge
    No. M2014-00647-SC-R11-CV – Filed October 24, 2016
    HOLLY KIRBY, J., dissenting.
    I respectfully dissent from the majority opinion in this case.
    The majority concludes that the Policy exclusion for any vehicle “owned or
    operated by a self-insurer under any applicable motor vehicle law” is ambiguous. I
    disagree. As explained below, under the plain Policy language, the rental car driven by
    the Defendant was not an “uninsured motor vehicle” because it was owned by a “self-
    insurer” under Tennessee’s Financial Responsibility Act. For this reason, I would
    conclude that the Policy does not provide UM coverage to the Plaintiff in this case.
    In this case, the Policy provides for UM coverage when the insured’s injuries are
    caused by an “uninsured motor vehicle.” The Policy contains the proviso that the term
    “uninsured motor vehicle”
    does not mean a vehicle . . . owned or operated by a self-insurer under any
    applicable motor vehicle law, except a self-insurer which is or becomes
    insolvent.
    Concomitantly, Tennessee Code Annotated section 56-7-1202 provides that an
    “uninsured motor vehicle”
    does not include a motor vehicle . . . [s]elf-insured within the meaning of
    the Tennessee Financial Responsibility Law, compiled in title 55, chapter
    12, or any similar state or federal law.
    Tenn. Code Ann. § 56-7-1202(a)(2)(C) (2008). While the Policy tracks the language of
    the statute, the statute is more specific in that it identifies one such “applicable motor
    vehicle law,” namely, the Tennessee Financial Responsibility Law. As pointed out by the
    majority, “any statute applicable to an insurance policy becomes part of the policy and
    such statutory provisions override and supersede anything in the policy repugnant to the
    provisions of the statute.” Hermitage Health & Life Ins. Co. v. Cagel, 
    420 S.W.2d 591
    ,
    594 (Tenn. 1967).
    It is undisputed in this case that Enterprise is certified as a self-insurer under the
    Tennessee Financial Responsibility Law and that Enterprise owned the Rental Car used
    to inflict injuries upon the Plaintiff. Thus, reading the Policy and the statute together, the
    Rental Car was clearly not an “uninsured motor vehicle” because it was “owned . . . by a
    self-insurer under [an] applicable motor vehicle law,” i.e., the Tennessee Financial
    Responsibility Law. Accordingly, under the plain Policy language, I would conclude that
    UM coverage must be denied.
    Certainly I am sympathetic to the Plaintiff, and the result reached by the majority
    is consonant with the overall aim of the UM statutes. However, I think that this case does
    not present an ambiguity in either the statutes or the insurance Policy. Rather, it
    highlights a “hole” in the statutes and, consequently, in the Policy language that tracks
    the statutes. It seems likely that the legislature simply did not contemplate this scenario,
    where a vehicle can be considered “insured” if owned by a self-insurer, even though the
    owner/self-insurer cannot legally be held liable for the damages caused by the vehicle
    operator based on federal law or otherwise. Neither the statutes nor the Policy provide
    for this situation.
    Accordingly, I would apply the Policy as written, and I would leave it to the
    legislature to fix any hole in the applicable statutes. For this reason, I respectfully
    dissent.
    ________________________
    HOLLY KIRBY, JUSTICE
    -2-
    

Document Info

Docket Number: M2014-00647-SC-R11-CV

Judges: Justice Holly Kirby

Filed Date: 10/24/2016

Precedential Status: Precedential

Modified Date: 10/25/2016