Larrystine Bates v. Michael J. Greene , 544 S.W.3d 345 ( 2017 )

07/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 29, 2017 Session
LARRYSTINE BATES v. MICHAEL J. GREENE, ET AL.
Direct Appeal from the Circuit Court for Shelby County
No. CT-003250-14 Felicia Corbin Johnson, Judge
No. W2016-01868-COA-R3-CV
This appeal involves the appropriate statute of limitations applicable to a claim against an
insurance company for uninsured motorist coverage. The plaintiff-driver filed this
lawsuit against the defendant-driver but was unable to serve him with the civil warrant
despite repeated attempts. Over a year after the lawsuit was filed, the plaintiff had an
additional alias civil warrant issued adding her insurer as the uninsured motorist carrier,
and she served the amended civil warrant on the insurer. The insurer moved for summary
judgment based on the statute of limitations. The trial court concluded that the plaintiff’s
claim against the insurer in accordance with her uninsured motorist coverage arose out of
the alleged negligence of the uninsured motorist, and therefore, it was governed by the
one-year statute of limitations applicable to personal injury claims. Accordingly, the trial
court granted summary judgment to the insurer based on the expiration of the one-year
statute of limitations. Finding the one-year statute of limitations inapplicable, we reverse
and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
Cornelius Bostick, Memphis, Tennessee, for the appellant, Larrystine Bates.
Samantha Erin Bennett, Memphis, Tennessee, for the appellee, Shelter Insurance
Company.
OPINION
I. FACTS & PROCEDURAL HISTORY
The motor vehicle accident giving rise to this litigation occurred on May 5, 2011.
Within one year of the accident, on April 24, 2012, Plaintiff Larrystine Bates filed a civil
warrant in general sessions court against Defendant Michael Greene, seeking to recover
for losses allegedly caused by Defendant Greene’s negligent driving. The civil warrant
was returned unserved. On January 25, 2013, an alias civil warrant was issued for
Defendant Greene, but it was also returned unserved. An affidavit from the process
server indicates that he was not to be found. On July 22, 2013, an amended alias civil
warrant was issued for Defendant Greene with Shelter Insurance Company, Plaintiff’s
uninsured motorist carrier, added as a defendant. Shelter Insurance Company (“Shelter”)
was served on July 31, 2013, two years after the accident occurred.
Shelter filed a motion for summary judgment, asserting that the claim against it
was barred by the one-year statute of limitations applicable to personal injury actions.
The general sessions court denied the motion and entered judgment in favor of Plaintiff
for $9,000. Shelter appealed to circuit court, where it renewed its motion for summary
judgment based on the one-year statute of limitations. In response, Plaintiff argued that
she was asserting a contract claim against Shelter, subject to a six-year statute of
limitations, rather than a tort claim subject to the one-year statute of limitations. Plaintiff
noted that she timely filed her lawsuit against Defendant Greene and then pursued a claim
against Shelter when it became apparent that she could not obtain service on Defendant
Greene.
After a hearing, the trial court entered an order granting Shelter’s motion for
summary judgment. The court reasoned that “this cause of action is a personal injury
action arising from an automobile accident and is, therefore, governed by the one-year
statute of limitations set forth in Tennessee Code Annotated section 28-3-104(a).” The
court rejected Plaintiff’s argument that she was asserting a contract claim against Shelter
and instead concluded that Plaintiff’s claim “sounds in tort.”
Plaintiff filed a motion to alter or amend, which the trial court denied, again
reasoning that Plaintiff was “seeking to hold Shelter liable for the alleged tortious acts of
the uninsured motorist,” and therefore, her claim against Shelter “arises out of the alleged
negligence of the uninsured motorist.” Plaintiff timely filed a notice of appeal to this
Court.
2
II. ISSUES PRESENTED
The issue raised by Plaintiff on appeal is whether her claim against Shelter was
governed by the one-year statute of limitations for personal injury actions or the six-year
statute of limitations for contract actions. For the following reasons, we conclude that the
one-year statute of limitations is inapplicable, and we reverse and remand for further
proceedings.
III. STANDARD OF REVIEW
Determining the applicable statute of limitations is an issue of law that we review
de novo. Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003).
IV. DISCUSSION
Uninsured motorist coverage “compensates for damages caused by owners or
operators of motor vehicles who either lack insurance coverage or carry coverage
insufficient to pay for the damages occasioned by their negligent operation of a motor
vehicle.” Sherer v. Linginfelter, 29 S.W.3d 451, 454 (Tenn. 2000).
It has been noted many times [] that the uninsured motorist features
of liability insurance policies pose unusual and difficult questions, both
substantively and procedurally. In one sense, the insured’s own insurance
carrier is placed in the role of a liability carrier for the uninsured motorist.
Yet the insured has a direct contract with the insurance carrier for the
payment of his damages. . . .
It was clearly the intention of the General Assembly to permit the
insured to pursue, insofar as possible, his ordinary tort remedy against the
uninsured motorist, and at the same time to have the benefit afforded by the
“family protection” or uninsured motorist coverage of his own insurance
policy, up to its limits.
Cavalier Ins. Corp. v. Osment, 538 S.W.2d 399, 403 (Tenn. 1976). “The uninsured
motorist carrier does not insure the uninsured motorist against liability. Rather, it
protects the insured against inadequate compensation.” Estate of Kirk ex rel. Kirk v.
Lowe, 70 S.W.3d 77, 80 (Tenn. Ct. App. 2001) (citing 15 Tenn. Juris., Insurance, § 141).
In Tennessee, an action for personal injuries generally must be commenced within
one year of the date the plaintiff sustained injury. McCullough v. Vaughn, No. M2016-
01458-COA-R3-CV, 2017 WL 1536477, at *3 (Tenn. Ct. App. Apr. 27, 2017) (citing
Tenn. Code Ann. § 28-3-104(a)(1); Sims v. Adesa Corp., 294 S.W.3d 581, 585 (Tenn. Ct.
3
App. 2008)). However, a six-year statute of limitations applies to “[a]ctions on contracts
not otherwise expressly provided for.” Tenn. Code Ann. § 28-3-109(a)(3).
In jurisdictions where the statutes relating to uninsured motorist
insurance do not contain a specific provision governing the period within
which claims based on such insurance must be advanced, either by suit
against the uninsured motorist or against the insurer issuing the uninsured
motorist coverage, or by a demand for arbitration under the policy, the issue
has arisen as to the applicable general statutory limitation period for taking
such action.
The argument has been made that the applicable limitation period
should be that governing actions sounding in tort, which argument is based
upon the fact that despite the contractual nature of the agreement between
the insurer and the insured, the suit is essentially one for the tort allegedly
committed by the uninsured motorist, and the resulting injury. Thus, as no
liability could be imposed upon the insurer in an action under the policy
unless all the elements of a tort action are established, the limitation period
applying to tort actions should control. The contrary argument has been
made, however, and generally accepted by the courts, that despite the
necessity that the insured establish that a tort was committed by the
uninsured motorist, and that injury resulted, the action is nevertheless one
based upon the insurance contract, on which the liability of the insurer
depends, and that the contract limitation period therefore controls.
A.S. Klein, Annotation, Automobile insurance: time limitations as to claims based on
uninsured motorist clause, 28 A.L.R.3d 580, § 3 (Most Recent Cases from 2015)
(emphasis added); see also 7A Am. Jur. 2d Automobile Insurance § 601 (noting the split
of authority on this issue). “[T]he vast majority of jurisdictions to have considered this
precise question have held that, because any recovery of the insured is based upon the
insurance policy, without which no liability could be imposed upon the insurer, the
statute of limitations for contract actions controls.” Shelter Mut. Ins. Co. v. Nash, 184
S.W.3d 425, 427 (Ark. 2004); see, e.g., Allstate Ins. Co. v. Spinelli, 443 A.2d 1286, 1290
(Del. 1982) (“We hereby adopt the view held by the majority of jurisdictions -- that
actions based on uninsured motorist coverage claims are actions ex contractu and as such
are controlled by the applicable contract statute of limitations.”); Murphy v. U.S. Fid. &
Guar. Co., 458 N.E.2d 54, 56 (Ill. App. Ct. 1983) (“In other jurisdictions where courts
have considered the applicable statute of limitations for making a claim based upon
uninsured motorist insurance, it has been generally held that such claims are governed by
the contract rather than the tort statute of limitations.”); Royal-Globe Ins. Co. v. Craven,
585 N.E.2d 315, 319 n.10 (Mass. 1992) (“most, if not all, courts that have considered the
4
question have applied the contract statute”); Uptegraft v. Home Ins. Co., 662 P.2d 681,
685 n.4 (Okl. 1983) (“Our view is in accord with that of other jurisdictions in which the
courts have held that actions by insureds against their insurers under an uninsured
motorist endorsement . . . are ex contractu and thus are governed by the principles and
procedures applicable to contract actions generally”); Franco v. Allstate Ins. Co., 505
S.W.2d 789, 791-92 (Tex. 1974) (“the great weight of authority is that the applicable
statute of limitation is the one for written contracts rather than for torts”).
The Tennessee Supreme Court considered the issue in 1966 in Schleif v. Hardware
Dealer’s Mutual Fire Insurance Co., 404 S.W.2d 490 (Tenn. 1966). In that case, the
plaintiffs’ car was struck by a hit-and-run driver, and their uninsured motorist carrier
denied liability under the policy’s uninsured motorist coverage. Id. at 491. The plaintiffs
filed suit against the uninsured motorist carrier over a year after the accident occurred.
Id. The action was dismissed in the trial court on the basis that “plaintiffs’ cause of
action is essentially in tort and is barred by the tort statute of limitations of one year.” Id.On appeal, the supreme court framed the issue as “whether the tort action statute of
limitations of one year or the contract action statute of limitations of six years applies in a
suit by the insured against his insuror for injuries suffered in an accident with an
uninsured hit-and-run motorist.” Id. The court stated,
[F]rom our investigation of the law and the peculiar facts of this case, we
are persuaded that the plaintiffs’ cause of action is on the insurance contract
and thus governed by the six-year statute of limitations in this State.
T.C.A. § 28-309.
It has been held that in the ordinary case where an uninsured
motorist, identifiable and accessible, injures the insured in an automobile
accident, the six-year contract statute of limitations applies as to when the
insured can demand arbitration proceedings under the Uninsured Motorist
Clause. In re Motor Vehicle Indemn. Corp., 40 Misc.2d 970, 244 N.Y.S.2d
154 (1963); Application of Travelers Indemn. Co., 226 N.Y.S.2d 16(N.Y.S.Ct.1962). In Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d
606 (Mo.App.1963), it was stated that a suit to recover under this provision
is not a tort action
*** merely because the insured under the terms of the
contract sued on must show he is entitled to recover damages
from the owner or operator of an uninsured automobile, * * *
but it is rather action on the contract.
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. . . . [P]laintiffs’ tort rights against the uninsured motorist, while
theoretically available, would in reality be without an accompanying
remedy were it not for the contract with defendant.
Id. at 491-92. The court observed that the plaintiffs’ claim was “based on a direct
contractual relationship between insured and insuror.” Id. at 492. The court recognized
that “there are instances where the gravamen of the action does not depend on what the
damages are and how they are measured.” Id. It compared the situation before it to
another case in which it had applied the statute of limitations for contracts to an “action
on a contract to recover for what are essentially tort damages.” Id. Ultimately, the court
considered that “plaintiffs’ only action for redress of injuries is on the contract with the
insurance company.” Id. at 493. The court reasoned that “the insurance company is not
the tort-feasor, its liability arises solely from the contract and not from a breach of any
common law duty to refrain from tortious injury to a person.” Id. As such, the supreme
court held that “the six-year contract statute of limitations applies to this remedy” and
reversed the trial court’s dismissal of the action based on the one-year personal injury
statute. Id.
In Price v. State Farm Mutual Automobile Insurance Co., 486 S.W.2d 721, 724-25
(Tenn. 1972), the supreme court cited Schlief when concluding that the six-year statute of
limitations applied to an insured’s declaratory judgment claim against an uninsured
motorist carrier, and not the one-year statute of limitations that would apply to a suit on
the tort.1 And, in Cavalier Insurance Corp. v. Osment, 538 S.W.2d 399, 404 (Tenn.
1976), the supreme court explained that an insured’s claim against an uninsured motorist
carrier was “not a tort action against the uninsured motorist, but [] a claim under the
policy of insurance.” The court also held that claims against the insurer were subject to
“equitable principles such as estoppel, laches, or waiver [that] could operate to deny the
insured recourse . . . despite the six-year statute of limitations otherwise obtaining.” Id. at
405.
Schlief was interpreted as holding that
a suit under the standard uninsured motorist automobile policy is an action
ex contractu rather than one ex delicto, even though the insured under the
terms of the contract must show that he is entitled to recover damages from
the owner or operator of an uninsured automobile as a prerequisite to a
recovery against the insurance company.
Story v. S. Fire & Cas. Co., 532 S.W.2d 277, 284 (Tenn. Ct. App. 1975) (quotation
1
We note that this conclusion from Price was stated in separate concurring opinion in which all justices
joined.
6
omitted).
Today, Tennessee Code Annotated section 56-7-1206 sets out the procedures a
party must follow in order to bring its uninsured motorist carrier into a case against a
tortfeasor.2 Winters v. Estate of Jones, 932 S.W.2d 464, 465 (Tenn. Ct. App. 1996).
Nine years after Schlief was decided, the Tennessee General Assembly passed what
eventually became subsection (d) of Tennessee Code Annotated section 56-7-1206,
which now provides:
(d) In the event that service of process against the uninsured motorist,
which was issued to the motorist’s last known address, is returned by the
sheriff or other process server marked, “Not to be found in my county,” or
words to that effect, or if service of process is being made upon the
secretary of state for a nonresident uninsured motorist and the registered
notice to the last known address is returned without service on the
uninsured motorist, the service of process against the uninsured motorist
carrier, pursuant to this section, shall be sufficient for the court to require
the insurer to proceed as if it is the only defendant in the case.
In enacting subsection (d), “the legislature intended that a plaintiff be allowed to sue the
uninsured motorist carrier directly if he is unable to obtain service of process over the
uninsured motorist defendant.” Brewer v. Richardson, 893 S.W.2d 935, 938 (Tenn.
1995). The legislature intended “‘to provide an efficient procedure whereby the plaintiff
could obtain complete relief when injured by an uninsured motorist.’” Id. (quoting Lady
v. Kregger, 747 S.W.2d 342, 345 (Tenn. Ct. App. 1987)). After the process sent to the
uninsured motorist defendant is returned unserved, the plaintiff can proceed directly
against the uninsured motorist carrier.3 Id. at 936. Thus, subsection (d) authorizes “‘a
2
The Tennessee Supreme Court has described section 56-7-1206 as “remedial in nature” and explained
that courts traditionally give a liberal construction to remedial statutes so long as the legislative intent is
not disturbed and the result is not clearly contrary to the statutory language. Lipscomb v. Doe, 32 S.W.3d
840, 847 (Tenn. 2000).
3
We note that in cases under subsection (d), once the process issued to the motorist is returned “not to be
found,” the plaintiff has the right under the statute to proceed directly against the uninsured motorist
carrier. Brewer, 893 S.W.2d at 939. The plaintiff is not required to continue obtaining the issuance of
alias or pluries summonses in an attempt to serve the “not to be found” motorist. See Kirby v. Wooley,
No. E2008-00916-COA-R3-CV, 2009 WL 499539, at *5 (Tenn. Ct. App. Feb. 27, 2009) (explaining that
the requirements of Tenn. R. Civ. P. 3 are suspended during a subsection (d) proceeding because to
conclude otherwise would hold a plaintiff hostage to either obtaining service on the uninsured motorist or
reissuing process from time to time indefinitely, which was not the intention of the legislature). Thus,
subsection (d) permits “‘a plaintiff to proceed directly against an uninsured motorist carrier under certain
circumstances even if the uninsured motorist is never successfully served with process.’” Id. at *6
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direct action against the uninsured motorist carrier’” in situations where the tortfeasor
himself cannot be reached by process. Id. at 938 (quoting Lady, 747 S.W.2d at 342).
Basically, this subsection provides that “if service issued to the tortfeasor’s last known
address is returned ‘not to be found’ or with some similar notation, service upon the
insurance company will be sufficient.” Clark v. Powers, No. E2015-02226-COA-R9-
CV, 2016 WL 4413348, at *4 (Tenn. Ct. App. Aug. 19, 2016) (no perm. app. filed).
On appeal, Plaintiff argues that Schlief is controlling and that the trial court erred
in dismissing her claim against Shelter based on the one-year statute of limitations. To
the contrary, Shelter argues that Schlief was “superseded” by passage of the uninsured
motorist statute, Tenn. Code Ann. § 56-7-1206, and that Plaintiff’s reliance on Schlief is
misplaced because it “no longer has precedential authority.”4 Shelter argues that the
procedure set forth in the uninsured motorist statute now controls and that a claim against
the uninsured motorist carrier is “subject to the same one-year statute of limitations” as
the one against a defendant-motorist. Shelter argues, “There is nothing in the language of
[the uninsured motorist statute] that permits a plaintiff who intends to rely on the
operation of the statute to make a claim against the uninsured motorist carrier to wait
until after the service of process issued to the uninsured motorist has been returned ‘not
to be found’ before serving a copy of the process on the uninsured motorist carrier.”
Respectfully, however, we discern nothing in the uninsured motorist statute that
(quoting Webb v. Werner, 163 S.W.3d 716, 720-21 (Tenn. Ct. App. 2004)). See also Fagg v. Buettner,
No. M2007-02748-COA-R3-CV, 2008 WL 4876535, at *3 (Tenn. Ct. App. Nov. 10, 2008) (rejecting the
insurer’s argument that the plaintiff “had a never ending duty to continue her efforts to serve [the
motorist]” and explaining that she was not required to continue her attempts to serve process when
previous dutiful attempts were returned “not to be found”).
4
Despite the passage of the uninsured motorist statute, courts have continued to cite Schlief approvingly.
For example, in Carter v. American Republic Insurance Co., No. 03A01-9102CV65, 1991 WL 135468, at
*4 (Tenn. Ct. App. July 25, 1991), this Court discussed Schlief as follows:
There is a distinction between the underlying injuries suffered and the injury caused by
the defendant. In Schlief v. Hardware Dealer’s Mutual Fire Ins. Co., 218 Tenn. 489, 404
S.W.2d 490 (Tenn. 1966) the plaintiffs were injured in an automobile accident and sought
to recover from their insurance company under the uninsured motorist provision of their
contract. The court held the action was not a “tort” merely because the underlying
injuries were personal. Instead, the court focused on the redress sought and from whence
the liability arose. Id. at 493. . . .
The question is not whether the plaintiff is suing in contract or tort or whether the
plaintiff suffered injuries to the person, but whether the plaintiff is suing this defendant
for “injuries to the person.”
Id.; see also Allen v. Aetna Life & Cas. Co., No. 02A01-9201-CH-00007, 1992 WL 252509, at *2 (Tenn.
Ct. App. Oct. 6, 1992) (“We are not unmindful of the fact that the contract action statute of limitations of
six years has been held to apply in a suit by an insured against his insurer for injuries inflicted by an
uninsured hit-and-run motorist.”) (citing Schleif, 404 S.W.2d at 490).
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mandates service on an uninsured motorist carrier within one year of an accident.
In fact, this Court has previously rejected similar arguments from insurers that the
uninsured motorist statute requires service on an uninsured motorist carrier within one
year. For instance, in Buck v. Scalf, No. M2002-00620-COA-R3-CV, 2003 WL
21170328, at *1 (Tenn. Ct. App. May 20, 2003), the accident at issue occurred on March
5, 1999, and on March 2, 2000, the plaintiff filed suit against the owner and operator of
the vehicle without serving his uninsured motorist carrier or giving it notice of the action.
On September 1, 2000, the plaintiff for the first time made a claim against his insurance
carrier for uninsured motorist coverage and had it served with summons. Id. The insurer
moved to dismiss on the basis that the plaintiff’s uninsured motorist claim was barred by
the one-year statute of limitations for personal injuries due to untimely service of process.
Id. The trial court granted the insurer’s motion for summary judgment on the ground that
the plaintiff’s uninsured motorist claim against the insurer was barred by the one-year
statute of limitations. Id. On appeal, this Court concluded that the plaintiff’s action
against the uninsured motorist carrier was not barred by the one-year statute of
limitations. Id. We noted the insurer’s reliance on Tennessee Code Annotated section
56-7-1206(a), which provides, in relevant part:
(a) Any insured intending to rely on the coverage required by this part 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 the insurance
company were a party defendant. The 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[.]
We explained:
In accordance with Tenn. Code Ann. § 56-7-1206 it is incumbent that suit
be instituted against an uninsured motorist with service thereafter upon the
insured’s uninsured motorist carrier. See Hooper v. State Farm Mut. Auto.
Ins. Co., 682 S.W.2d 505, 507 (Tenn. App. 1984). We find no provision in
Tenn. Code Ann. § 56-7-1206(a) which requires that a claim by an insured
must be served upon an uninsured motorist carrier within one year from the
date of a motor vehicle accident so long as the statute of limitations has not
run against the uninsured motorist.
Id. at *2. The cases cited by the insurer for the proposition that the uninsured motorist
claim was barred by the one-year statute of limitations were not instructive. Id. at *3.
We explained that if the statute of limitations had run against the uninsured motorist, a
9
direct action could not have been maintained against the uninsured motorist carrier. Id.
at *4. However, because the suit was timely filed against the uninsured motorist, we
found no basis for dismissal of the claim against the uninsured motorist carrier based on
the one-year statute of limitations, and we reversed the trial court’s order to that effect.
Id.
Similarly, in Goley v. Broyles, No. 03A01-9809-CV-00293, 1999 WL 76099, at
*1 (Tenn. Ct. App. Jan. 28, 1999), the plaintiff originally filed suit only against the
individual defendant driver within a year of the accident. The plaintiff later learned that
the defendant was uninsured. Id. A summons was issued to the plaintiff’s uninsured
motorist carrier in January 1998, over a year after the October 1996 accident. Id. The
insurer moved for summary judgment, claiming that the one-year statute of limitations
barred the claim. Id. The trial judge agreed and granted the motion. On appeal, this
Court held that the trial court erred in granting summary judgment to the insurer when the
plaintiff had complied with the uninsured motorist statute, and we rejected the insurer’s
argument that the one-year statute of limitations for personal injuries applied to the
plaintiff’s claim against the insurer. Id. We found the following reasoning by the
Supreme Court of Virginia persuasive, as it had considered statutory language identical to
the language in our uninsured motorist statute:
Nowhere in the language of [the statute] do we find any mention of a time
period within which service is to be made [on the insurer]. If the legislature
had intended to create a limitation of time for such service, we think it
would have done so in explicit language . . . [A] plaintiff in a personal
injury case may not discover that the tortfeasor is uninsured or
underinsured (as in this case) until after the tortfeasor has been served with
process, which may occur at a time after the statute of limitations has run.
Id. (quoting Glenn Falls Ins. Co. v. Stephenson, 367 S.E.2d 722, 724 (Va. 1988)). We
also relied on 7A Am.Jur.2d Automobile Insurance § 589, which stated that the insured
“need not serve the insurer before the expiration of the limitations period against the
tortfeasor, provided the tortfeasor was sued before the expiration of such limitations
period.” Id.
As the Tennessee Supreme Court recognized in Bolin v. Tennessee Farmer’s
Mutual Insurance Co., 614 S.W.2d 566, 568 (Tenn. 1981), “It is obvious that under some
circumstances an insurance carrier becomes subject to a claim under these statutes at a
fairly late stage[.]”5 We find no basis in the uninsured motorist statute or caselaw for
5
As an example, the Bolin Court explained that the uninsured motorist statute “embrace[d] a situation . . .
where a tort claimant proceeds against a person apparently insured, only to discover at some point that the
liability insurance carrier cannot respond to the claim.” Bolin, 614 S.W.2d at 568. The court continued,
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requiring the plaintiff to serve the uninsured motorist carrier within one year of the
accident.
Finally, we note that in Robbins v. City of Chattanooga, No. 685, 1985 WL
327557, at *1-2 (Tenn. Ct. App. Jan. 29, 1985), we likewise concluded that the plaintiffs’
failure to serve process on the uninsured motorist carrier within one year was not fatal.
In Robbins, the insurer had argued that suit against the defendant motorist as well as
process as to the carrier must have been initiated within one year of the date of the
accident. Id. at *1. In response, the plaintiffs argued that although the suit against the
defendant-motorist was governed by the one-year statute of limitations, once the motorist
is properly in court, “notice may be given to the insurance company at any time thereafter
provided the company is not prejudiced by the delay.” Id. In Robbins, the court
concluded that the general assembly “contemplated” that process would be issued against
the uninsured motorist carrier at the same time suit against the uninsured motorist was
instituted, but that failure to do so was not fatal. Id. at *2. Instead, the court determined
that “where service is had within the one-year period on the uninsured motorist, process
served at a later date upon the carrier is valid unless the carrier can show that its position
has been prejudiced.”6 Id. The court ultimately affirmed the trial court’s judgment
overruling the insurer’s motion to dismiss that was based on the one-year statute of
limitations but remanded with leave for the insurer “if it is able, to show prejudice to its
position by appropriate pleadings and proof.” Id.
On appeal, Shelter attempts to raise an alternative argument and suggests that if
the one-year statute of limitations does not apply to bar Plaintiff’s claim, then the suit
should nevertheless be barred because Shelter has been prejudiced by Plaintiff’s delay in
serving it with process, within the meaning of Robbins. We need not address this issue,
however, because nothing in the record indicates that it was raised in Shelter’s motion for
Under those circumstances the tort claimant is not deprived of the benefit of his own
uninsured motorist protection. It is highly unlikely that such a claimant would utilize the
provisions of T.C.A. § 56-7-1206 to implead his uninsured motorist carrier unless he
happened to be aware, at the inception of the tort litigation, of the unsound financial
condition of the liability insurer of the alleged tort-feasor.
The rule laid down by the Court of Appeals in the present case would be a harsh
one and would require every plaintiff, suing an apparently insured defendant, also to
implead his own uninsured motorist carrier or otherwise lose the benefit of his coverage
in the event the tort-feasor should prove to be uninsured for some reason unknown to the
plaintiff.
Id. at 568-69. Although Bolin did not involve the statute of limitations, the court’s concerns and
observations are noteworthy here.
6
The source of the court’s exception for prejudice is not entirely clear.
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summary judgment or otherwise argued before the trial court. “‘It has long been the
general rule that questions not raised in the trial court will not be entertained on appeal.’”
Emory v. Memphis City Sch. Bd. of Educ., 514 S.W.3d 129, 146 (Tenn. 2017) (quoting In
re Adoption of E.N.R., 42 S.W.3d 26, 32-33 (Tenn. 2001)).
V. CONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby reversed
and remanded for further proceedings. Costs of this appeal are taxed to the appellee,
Shelter Insurance Company, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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