FILED

April 16, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS OF TENNESSEE

 AT KNOXVILLE

JEFFREY ALAN NICELY and ) C/A NO. 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 I O N
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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 catchall 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.