### FILED January 28, 19

99 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE
RHONDA G. GOLE Y, ) C/A NO. 03A01-9809-CV-00293 ) Plaintiff-A ppellant, ) KNOX CIRCU IT ) v. ) HON. DAL E WORKMAN, ) JUDGE AND REW J. B ROYL ES, II, ) ) REVERS ED AND Defendant-Appellee. ) REMANDED

FARRELL A . LEVY, McDON ALD, LEVY & TAYLOR , Knoxville, forPlaintiffAppellan t. JAMES S. MacDO NALD, DUN N, MacDONA LD & COL EMAN, P.C., Knoxville, for Defendant-Appellee.

O P I N I O N Franks, J. This appeal aris es from an automobile acci dent that occurr

ed on October 8, 1996. Plaint

iff Rhonda Goley fil

ed suit agains t defendant Andrew Broyle s on Septemb er 23, 1997 . Process w as issued the next day. At th e time of the accident, Goley had an insura

nce policy wit

h defendant State Far

m Automobile Insurance Company that provided uninsured motorist coverage. Goley ’s attorney mailed a copy of the complaint t

o State Farm on September 22,1997. Goley later

learned that Broy

les was uninsured. A summons was issued to State Farm on Jan uary 12, 1998, and served on January 21, 1998. S tate Farm moved for summary judgment,claiming that the one-year

statute of l

imitations

barred Goley’s clai

m. The Trial Judge agreed, and granted the motion. The Trial Court erred1 The unreported case of Robbins v. City of Chattanooga , (Tenn. App. Filed Jan. 29, 1995,

Knoxville), determined that a plaintiff’s failure to serve process on the uninsured carrier within the one-year statute of lim

itations was no

t fatal.
2 in dismissi

ng the action,because, in our vi ew, plaintif

f complied with T.C.A. §56- 7- 1206( a). State Farm contends i t was not properly

served with process , and that the statut e of limitat

ions bars thi s claim, si

nce the statut

e of limitat

ions for personal inj uri es i s one

yea r fr om th e dat

e of t he in jur y. T.C. A. §28 -3- 104( a)( 1). T.C. A. §56-7-1206(a) addresses the procedure for claims against uninsured motorist carrier s: Any insured intending to rely on the cov erage requ ired by this part sh all, if any acti

on is insti

tuted against

the owner and operator of a n uninsured vehicle, ser

ve a copy of the proc ess upon the insur ance company issui

ng the policy

in the manner prescr

ibed by law, as

though such insurance compan y were a party de fendant. Neither pa rty cites any reported Tenness ee case dire ctly addressing th is issue, and our r

esearch has reveal

ed none. 1 The Virginia Supreme Court has faced the issue bef

ore us in Glenn Falls Ins. Co. V. Stephenson , 367 S.E.2d 722 (Va. 1988). The Virginia Court rel ied upon statutory

language identical to T.C.A. §56-7- 1206: The phra se “in the m anner pres cribed by law ” modifie s the word s “shall serve,” indicating a clear legislat ive intent t

o limit the r

equirement to t

he manner of service of proc ess, specifi cally des cribed elsewhere i n the Code. Nowhere in the language of [t he statute] do we find any mention of a time period w ithin which service is to be m ade. If the legislature had intend ed to create a limitation of tim e for such service, we think it would have done so in explici t language . . . [A] plainti ff in a personal injury case may not disc over that the t ortfeasor is

uninsured or underinsured (as

in this case) until aft

er the tort

feasor has been served with process, which may occur at a time aft

er the stat

ute of limit

ations has run. Id. at 724. This re asonin g is pers uasive
. See also 7A Am.Jur.2d Autom obile Insurance §589 (citing Glenn F alls and noting that t he insured “need not s erve the3

insurer before t

he expiration of t

he limitat

ions period agai

nst the tort

feasor, provided the tortfeasor was sued before the expiration of such limitations period.”)

We reverse the summary j udgment in favor of Stat e Farm and remand with cost of the caus e assessed to appel lee.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.