# FILED
June 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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ROBERT HAROLD

PILGRIM and ) wife, FRANCES PILGRIM, ) ) Dyer Chancery Plaintiffs/Appella nts ) Case No. 91-2 44 v. ) ) EDWARD H. FRA

ZIER, ) Appeal No. 02A01- 9611-CV-00294

) Defendant/Appellee )

APPEAL FROM THE CH ANCER Y COU RT OF D YER C OUNTY

AT DYERSBUR G, TENNESSEE THE HONORABLE JOE G. RILEY , CHANCELLO R

JOHN W. PA LMER MA RK D. JOHN STON The Palmer Law Firm 217 W. Market St. 116 W. Court St. Dyersburg, TN 38025-132 6 P.O. Box 746 Attorney for Appellee Dyersburg, TN 38025 Attorney for Appellants

AF FIRMED

WILLIA M H. INM AN , SENIOR JUD GE

CONCUR:
DAVID R. FA RMER, JUD GE
ALAN E. HIGHERS , JUDGE2 O P I N I O N The plaintiffs filed sui t on October 15, 1991 against t he defendant for damages resul ting from a tr affic accident. An a nswer to the complaint was filed December 16, 1991. The case apparently

lay dormant

until Apri l 17, 1994 w hen the plaintiffs fil ed a motion seeking the issuance of a s ummons upon Tennessee Far mers Mutual Insurance Company , their underi nsured carr ier, alleg ing that they were infor med on March 25 , 1994, by the def endan t’s atto rney, tha t the de fend ant’s lia bility covera ge was $25,000.00 and thus m arkedly inadequate to compensa te the plaintiff s. The motion was g ranted by or der entered May

2, 1994 and a copy

of the summons and com plaint was served on Tennessee Farmers Mutua l Insurance Company on May

3, 1994, whi ch filed its answer that t he plaintiffs poli cy prov ided uninsured/underi nsured cove rage for them i n a limited amount. The policy required the plaintiffs to: “1. Notify

us as soon as p ossible of their intention to s eek such coverage.” Tennessee Farmers

Mutual filed a motion for summary judgment on Oc

tober 2, 1995, based on the delay of 42 months after the accident and 31 months after the commencement of the case, al leging t hat the notificati on to seek underi nsured coverag e under the poli cy was not “as soon as

possible.”The motion was supported by the affidavit of John Washburn, a clai ms representati ve, who deposed that his company

had no notice of the i nsured’s int ention to seek und erinsured coverag e until May

3, 1994 when s uch papers w ere serv ed. The plaintiffs filed onl y the affidavi t of their attor ney in contr avention of the motion. In his aff idavit, counsel for the plaintif fs deposed that the defendan t’s attorney adv ised them of the poli cy limi ts on March 25, 1994 and, until that date, “they had no way of know ing” that t he defendant was under insured, and “ had no reason to beli eve” that t he defendant had minimum li ability insurance.3 The motion f or summary judgment was granted, and the plaintif fs appeal, presenting for appellate rev iew the i ssue of the propri ety of the dismi ssal of the insu ranc e com pan y. The standards governing our revi ew of a trial court’s ac tion on a motion for summary judg ment are wel l-settled. Since our i nquiry involves purely

a question of law, no presumption of correc tness attaches t o the trial court’s judg ment, and our task is confined to revie wing t he record to det ermine wheth er the requi rements of T ENN . R. C IV . P. 56 have been met

. Carve ll v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v. Sovran Bank/Central South , 816 S.W .2d 741, 744 (Tenn . 1991); Foley v. St. Thomas H

osp. , 906 S.W.2d 446, 452 (Tenn. Ct. App. 1995 ); Brenner v. Textron Aeros tructures , 874 S.W.2d 579, 582 (Tenn. Ct. App. 1993 ). T ENN . R. C IV . P. 56.03 prov ides that summary judgment is appropriate onl y where (1) there i s no genuine iss ue of material fact relevant to t he claim or defense contained in the motion, and (2) the moving party is entitled to a j udgment as a matter of law on the undisputed facts. Carvell, 900 S.W.2d at 26; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Anderson v. Stand ard Register

Co. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of proving that the motion satisfies the se requirements

. Downen v. Alls tate Ins. Co. , 811 S.W .2d 523, 524 (Tenn . 1991). While the summary judgment p rocedure is not a substitutefor trial, i t goes to the merits of the complaint and shoul d not be taken li ghtly. Byrd , 847 S.W.2d at 210; Jones v. Hom e Indem. Ins . Co. , 651 S.W.2d 213, 214 (Tenn. 1983); Fowler v. Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn. 1978); Foley , 906 S.W.2d at 452. It has been repeatedly st ated by the appel late courts o f this state that the purpose of a summary

judgment proc eeding is no t the finding of facts , the resoluti on of disputed f actual issues, or the determina tion of conflicting inf erences reasonably to be drawn from the facts. Bellamy v. Federal Ex press Corp. , 749 S.W.2d 31, 33 (Tenn. 1988). Rather, the purpos e of summary judg ment is to res olve contr olling issues of law

. Id.4 In evaluati ng the propr iety of a motion for summary ju dgment, we view the evidence in the light most favorable to the n onmoving party and draw all reasonable inferences in thenonmoving party’s favor. Byrd , 847 S.W.2d at 210-11. A motion for summary ju dgment should onl y be granted when both the facts and the conclusions drawn from the facts permit a reasonable person to reach only one conclusion. Id. W ith t he f orego ing pr incip les in mind , we th ink th is cas e is co ntro lled by a recent decisi on of this Court, Whaley v. Underwood , 922 S.W.2d 110 (Tenn. Ct. App. 1995). In Whaley

, the policy

provided u nderinsured motor ist cover age, and the insureds were contractually required to personally send copies of the legal papers in their suit against Underwood. Suit was filed January 17, 1989 an d, two years later, they ascer

tained that the U nderwoods’ liabilit y was inadequate to c over the cl aim. Whaley’s attorney sen t a letter to the insurance company on Apri l 2, 1991, informi ng it that he mig ht issue a summons and complaint “within t he next few days” and enclosing a copy of the compl aint he had filed ag ainst Underw ood. But no summons or complai nt was ser ved until December 30, 1992, nearly four years after the action was filed, and 20 mo nths after the comp any was notified of a possible underi nsured motori st cl aim. The issue was

whether th e transmittal of the complaint on A pril 2, 1991 satisfied the policy requirement that th e insured seeking underinsured mo torist coverag e must also “pr omptly send us

copies of the leg al papers if a s uit is broug ht.” Quotin g from Allstate Ins. Co. v. Wilson , 856 S.W.2D 706 (Tenn. Ct. App. 1992), we hel d that [a] requirement in a policy for “prompt” or “immed iate notice,” or that notice must be given “immediately ,” “at once,” “forthwit h,” “as soon as practicabl e,” or “as soon as possible” generally means that the no tice must be given within a reasonable ti me under the circumstances of the cas e. quoting Am. Jur.2d. Insurance § 1330.5 We held that W haley did no t act wi thin a reasonabl e time, because a 2 7- month delay was too long an d significan tly that [t]he fact that [the Whaleys] di d not learn unti l mid-Februa ry, 1991, t hat the Underwoods

were under insured is not sufficient, standi ng alone, to condone a failure to noti fy the UM c arrier. . . . The Whaleys failed to show why i t took so long before t hey determined that the Underw oods were u nderinsured. They offered nofact s re flec

tingthat they took rea sona ble step s tosat isfy themselves t hat the Underwoods had adequate coverage. To defeat the insurance company ’s motion, “i t must be show n that the clai mant exerci sed due dili gence an d reason able car e in asce rtainin g that the re was coverage under the polic

y.” Whaley , 922 S.W.2D at 114-15 ( quoting Lee v. Lee , 732 S.W.2d 275, 276 (Tenn. 1987)). As we have shown, the plaintiffs offered only the affidavit of thei r attorney that they “had no way of know ing” the defendant’ s coverag e and “no reason to believe” he was underinsured. They simply relied upon the att orney for the defend ant to tell them about the amount of coverage; they “offered no facts reflec ting that they

took reasonable steps to satisf y themselves that the defend ant had adequate coverage.” Whaley, supra , and they offered no e vidence that they ex ercised due di ligence and reasonable care to ascertai n the amount of the coverage. The affidav it of counsel manifestly does not satisf y these requirements. A delay of 31 month s is simply unreasonable and v iolativeof the contractual requirement of notice “as s oon as possible.” The judgment is affirmed at the costs of the appellant.

________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

______________________________ Alan E. Hi ghers, Ju dge

______________________________ David R. Farm er, Judge