### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 9, 2001 Sess

ion SHIRLEY IRENE BREEDING v. ROBERT LEWIS EDWARDS, ET AL 

### .

Appeal from the Circuit Court for Knox County No. 2-920-97 Wheeler A. Rosenbalm, Judge

FILED JUNE 22, 2001 No. E2000-01900-COA-R3-CV

We are asked to decide

whe ther the Supreme Court’s decision in the case of Brown v. Wal-Mart Discount Cities , 12 S.W.3d 785 (Tenn. 20 00 ), is applicable to a case in which a

plaintiff seeks to recover under the uninsur

ed motorist

provisions of

its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the

instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle

driven by the defendant Robert Lewis Edwards and owned by the defendant

Johnston Coca Cola Bottling Group, Inc. (“Johnston”). She filed a complaint against these defendants within the period of the statute of limitations and secured the se rvice of process upon her uninsured motorist (“UM”) carrier, the appellee Farmers Insura nce Exchange (“Farmers”) . Outside the perio d of the statute

of limitations, the defendants amended their answer to a llege that an unk

nown motorist cause

d or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e. , the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown , a slip andfall case. The trial court agreed with Farmers and dismissed Breeding’s claim. Breeding appeals, asserting, inter alia , that Brown does not apply to the instant case. We reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Todd J. Mo ody, Knoxvil le, Tenness ee, for the ap pellant, S hirley Irene Breedi ng. J. William Coley and B. Adam Newsome, Knoxville, Tennessee, for the appellee, Farmer s Insurance Exchange. OPINION1 While it i s not clear f rom the record e

xactl y when the ame

nded answer was filed, it is undisputed that the plaintiff’s amend ed comp laint was filed within 9 0 days of the filing of the amend ed answer

. -2- I. The accident in this c

ase occurred o

n December 4, 19

96. The plainti

ff had br ought her vehicle to astop and was waiting to make a left turn into a business. A car driven by Edwards and ownedby Johnston

struck Breeding’s vehicle from behind. Breeding filed suit ag ainst Edwards and Johnston on December 1, 1997. As a part of h er original f iling, she secured the service of proc

ess on Farmers, her UM carrier. The named defendan

ts, subsequent to the

running of the pe

rsonal injury

statu te of limitations, filed an amended ans wer, allegin g, inter alia , that an unknown driver caused or contributed to the accident. 1 On July 12, 1999, Breeding filed an amended complaint alleging negligence on the

part of the unknown driver, whom she identified as “JohnDoe.” Upon the motion of Farmers, the trial court dismissed Breedi

ng’s claim aga

inst Farmers and

certified its

order as a final judgment pursuant to Tenn. R. Civ. P. 54.0

2. Breeding no

w appeals.
II. The trial court

dismissed Breeding’s claim against Farmers “having considered the motion, u pon hearing argument of counsel and after consideration of the rec ord as a whole.” The recor d c ontains n o written material filed by the parties other than their pleadings. We theref ore treat the trial court’s dismissal of t he claim a s one pursuant to Tenn. R. Civ. P. 12.02. In considering an appeal of such a dismissal, we are “required to take the allegations of the complaint a s true, and to construe the allegations liberally in favor of the plaintiff.” Pemberton v. American Distilled Spirits Co. , 664 S.W.2d 69 0, 691 (Tenn. 1 984). The question before us is purely a question of law, and thus, our scope of rev

iew is de novo withno presumption of correctness as to the trial court’s conclusions. Montgomery v. Mayor of Covington , 778 S.W.2d 444, 445 (Tenn. Ct. App. 1988).
III. A. This appeal focuses on the precedential value of B rown v. Wal-Mart Discount Cities , 12 S.W.3d 785 (Tenn. 2000) to cas es, su ch as this one, involving the negligence of an unknown moto rist, whose existence is first asserted by an already -sued defendant, in a situation where a plaintiff invokes the uninsured motorist coverage of its policy. In Brown , the plaintiff was injured when he slipped on ice and wat er on the fl oor of the defendant’s store. See id . at 785. The defendant,

by way of its answer, alleged that an unknown individual was responsible for the slippery material on the floor. It argued that the jury should be permitted to consider the fault of the unknown tortfeasor. See id . The trial court i nitially agreed, after which the jury returne d a verdict assigning 30% of the fault to the defendant and 70 % of the fault to t he unknown tortfeasor. See id . Upon-3-

motion for a new trial, however, t he trial court he ld that it should not ha

ve allowed the jur

y to consider the fault of the unknown tortfeasor. Consequently, it assigned the 100% of fault found by the jury to the defendant. See id . The defendant appealed, first to this Court and then to the Supreme Court, which granted p

ermission to

appeal “to decide the issue of whether the defendant can attribute fault to an unidentified, or ‘phantom,’ tortfeasor.” See id

. The Supreme Court began its analysis by discussing Tenn. R. Civ. P. 8.03, which provi des, in pertinent part,

as follows:
In pleading to a

pre ceding pleadin

g, a party

shall set forth affirm ativel y

facts in short and

plain terms relie

d upon to constitute...comparative fault (including theiden tity or description of any other alleged tortfeasors).... The Court explained that Rule 8.03 “allows a defendant to allege that a nonparty contributed to the plaintiff’s damages, ultimately allowing the plaintiff to plead andserve, and t he trier of f act to assi gn fault to, the comparative tortfeasor alleged in defendant’s answer.” Brown , 12 S.W.3d at 787. The Courtheld, however, th

at the pleading c

laiming the fault

of another must ide ntify or describe the other alleged tortfeasor with sufficient specificity to initiate discovery

. Id

. The Supreme Court then turned its attention to McIntyre v. Balentin e , 833 S.W.2d 52 (Tenn. 1992), the landmark case in which the Sup reme Courtadopt ed mod ified compa rativ e faul t. In McIntyre , the Court noted that there would be future cases involving nonparties that would require reso l ution by the High Court. See Brown , 12 S.W.3d at 787. In Brown , the Court stated the following:
In adopting compar ative fault, we a

ttempte d to r econcile the plaintiff’s interest in being madewhole with the defendant’s interest in paying only that perce

ntage of damag es for

which that particular defendant is responsible. We anticipated, however, that situations would arise in which one of these interests must yield to the other and that many issues regarding “nonparty ” tortfeasor s must

“await an appropriate controversy.” Id . The Court in Brown then went on to quote the following lan

guage from McIntyre : [F]airness and efficiency require that defe ndants called upo

n to answer allegations in ne

gligence be p

ermitted to alleg

e, as a n affirmative defense, that a nonparty caused or contributed to the injury or damage for which

recovery is sought....However, in order for a plaintiff to recover a judgment against such additional pe rson, the plaintif

f must ha ve made a timely amendment to his complaint andcaused process to be served on such additional person.2 T.C.A. § 20 -1-119 (Supp . 2000), provide s, in pertinent part, as follows: (a) In civil action s where com parative fault is or becomes an issue, if a defendant named in an original complaint ini tiating a suit filed within the appli cable st atute of limitations, or named in an amend ed comp laint fil e d within the ap plicable statute of limitat ions, all eges in an answe

r or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the i njury or damage for which the p laintiff seeks recov ery, and if the plaint iff’s cause or causes of action again st such pers on would be bar red by any

applicabl

e statu te of limitationsbut for

the operatio n of this section, the plaintiffmay, wi thin ni nety (90) days of the filing of

the first a

nswer or fir

st amended answer

alleging such p erson’s fault, either: (1) Amend the compl

aint t o add such pers

on as a defen

dant purs

uant to Ru

le 15 of the Tennessee Ru les of Civil Procedure and cause process to be issued for t hat person; or (2) Inst itut e a sepa

rate a ction again st th

at pers on by f ili ng a su mmo ns and complain t. If the plaintiff elects to pr oceed u nder this sectio n by filing a sepa rate action, the compla int so filed shall not be considered an “original complaint initiating t

he suit” or “an amended complaint” for purposes of this subsection.

-4- Ther eafter, the additional party will be required to answer the amended complain

t. See id . at 787-88 (quoting McIntyre , 833 S.W.2d at 58). The Brown Court pointed out that the legislature responde d to one aspect of McIntyre by enacting T.C.A. § 20-1-119, 2 which “enable [s] a plaintiff to plea d and serve nonpa

rties alleged in a defendant’s an

swer as potential

tortfeasors...[if] a

defendant raise

s comp arati ve fault as an affirmative defense and the statute of limitatio

ns would otherwise bar the

plaintiff’s caus

e of action against the comparative tortfeasor alleged in defendant’s answer.” Brown , 12 S.W.3d at 788. The Court, finding that T.C.A. § 20-1-119 “con templates that the

plaintiff will

actually know the identity of the alleged individual or entity,” held that “unless the nonparty is identified

sufficiently to allow the plaintiff to plead and serve process on such person pursuant

to Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.” Id

. B.
In the instant case, Farmers argues that because the driver whose alleged negligence is the predicate for the plaintiff’s UM claim cannot be ide nti fied sufficiently to allow Breeding to plead andserve process

upon that driver, no fault may be attributed to the unknown driver, and hence the UM carrier has no liability under the holding in Brown

. We disagree for two bas ic reasons. First, we find nothing in the language of Brown to suggest the Supreme Court

intended that its ho

lding there woul

d apply to a n

egligence c

aseinvolving3 We do not need to decide in this case if the holding in Brown is applicabl e to a factual

scenario invol

ving an unknown motor

vehicl e driver where the

uninsur ed motoris

t stat utory s cheme is n

ot invol ved. -5- an unknown motorist where theUM coverage is otherwise implicated, even if the existence of the unknown motorist and the lat ter’s fault are

first asse rted in a response filed by an already -sued defendant. 3 In general terms, Brown prevents a defendant from “putting off” fault on an unknown tortfeasor, in those situations where it is the defendant who fi r st raises the fault of the unknown tortfeasor. Brown does not expressly address whether a plaintiff can attempt to as sign fault to an unknown tortfeasor under the facts of the instant case. Brown ’s focus is on what a defendant cannot d o; it does not concern itself with what a willing plaintiff can do. Put another way, we do no t construe Brown as holding that fa ult can never, under any

circumstances, be assigned to a phantom defendant;rather, as we read that case, it simply prevents a defendant from asserting the fault of an unknown individual or entity for the purpose of avoiding the imposition of f ault on itsel f in a situation where th

e unknown tortfea

sor’s fault cann

ot lead to the entr

y of a judg

ment. Brown should be viewed as a shield that can be used

by a plaintiff to ward off a defendant’s attempt to avoid the imposition of fault upon itself by assigning fault to one who, becau se of its phantomstatus, cannot

be cast in judgment. Its holding was clearly designed to benefit a plaintiff. There is nothing in

that holding to support

the contention tha

t Brown can be used as a sword against a plaintiff who attemp ts to assign fault to an unknown motorist in order to recover under the plaintiff’s uninsured motorist coverage. There is a fundamental difference betwee n Brown and the instantcase. In Brown , there could be no recovery based upon the unknown tortfeasor’s fa ult; in the UM case now before

us, because of the presence of the UM carrier, there can be a recovery based upon the phantom’s fault. Thus, the problem present in Brown , i.e. , the inability of the plaintiff

to recover a judgment based upon the unknown tortfeas

or’s fault, does n

ot come into

play in the instant case. It is an important “ma

xim not to be disrega

rded that gene

ral expressions, in

eve ry opinion are to be taken in connection with the case in which those expressions are used.” National Life & Accident Ins. Co. v. Eddings , 188 Tenn. 512, 523, 221 S.W.2d 695, 699 (1949) (quo ting Cohens v. Virginia , 6 Wheat. 264, 19 U.S. 264, 398, 5 L. Ed. 257, 290(1821)). Brown does not expressly address a factu

al scenario invol

ving uninsured mo

torist coverage. I

t is a slip and fall c

asewithout UM ramificatio ns. The holding in Brown , when evaluated in context, is not a pr

ecedential bar

to the plaintiff’s claim against Farmers in this UM case. The United States District Court for the Eastern District of Tennessee recently held t ha t Brown does not preclude the imposition of fault upon a phantom driver in a case i nvolving the liability of a UM carrier who is present in the litigation to respond for the unknown driver. Resor v. Graves , 108 F. Supp. 2d 929 (E.D. Tenn. 2000 ). We agree wi th United S tates Magis trate Jud ge Robert P. Murrian, who stated that

although the actua l alleged nonparty tortfeasor in this case...cannot be identified, named in the complaint, andserved with process, there-6- is an entity which stands in the s hoes of the alleged n onparty tortfeasor, which entity can be identifi ed, serv ed with process, and represented in court, and can, if the jury so finds, be responsible for the port ion of the unidentified phantom tortfeasor’s percentage of fault.... In this way, both of the interests recognized i n McIntyre – the plaintiff’s interest in being made whole and the def endant’s in tere st in paying only that percenta ge of damages for which that defendant is responsible – are satisfied and neither interest

must yield to the other. Id . at 932-33.
As a second reason

for rejecting

Farmers’ basic Brown argument, we note that the Tennessee uninsuredmotorist statutes specifically contemplate that a UM carrier may be haled into court and held liable for the negligent act s of an unknown driver and the statutes do not provide for an exception to the liability of a UM carrier for those cases where the existence of an unk

nown motorist is first asserted

by an already-sued defendant. Uninsured motorist coverag e exists “for the protection of persons insured thereunder who are legally e ntitled to recover compensatory damages from owners or operators of uninsure d motor vehicles....” T. C.A. § 56-7-1201(a) (200 0). Bystatute, the concept of an uninsured motorist includes an unknown mot or vehicle driver under ce rtain circum stan ces. T.C.A. § 56-7-1206(b) (2000). That statute specifically addresses the situation where an insure

d is injured by

an unknown motorist: If the owner or oper

ator of any

motor vehicl e which causes bo dily i njury or property

damage to a per

son insured under

th is part i s unknown and if such insured satisfies all of the requirements of § 56- 7-1201(e), should suit be instituted the insured shall issue a John Doe w arrant against the unknown owner or operator in order to com e within the coverage of the owner’s uninsured motorist policy. If the uninsuredmotorist’s identity and whereabouts are discovered during the pendency of the p roceeding, the provisions of su bsection (e) sha

ll gove rn t he p rop er co urs e of a cti on f oll owi ng su ch d isc ove ry. Id . T.C.A. § 56-7-120 1(e) provides as follows:
If the owner or operator of a n y motor vehic

le which causes b

odily injury or property

damage to

the insuredis unknown, the insur ed shall have no right to recover unde r the uninsured motorist provision unless: (1)(A) Actual physical contact shall have occurred betwee n the motor vehicle owned or operated by such unknown person and the person or property of the insured; or-7- (B) The existence of such unknown motorist is established by clear andconvincing evidence, other t han any evidence provided by occupants in the insured vehicle; (2) The insured or

someone in the insured’s behalf shall have reported the accident to the ap propriate law enforcement agency within a reasonable time after its occurrence; and (3) The insured was n

ot negligent in f

ailing to determi

ne the identity of the other vehicle

and the owner

or operator of the other vehicle at the time of the acc

ident.
In light of these sta

tutory provi

sions, we again

agree with Judge Murrian, who opined that “the legislature, through the uninsured motorist statute, specifically contemplates that an uninsured motorist carrier may be held responsible for the neg ligent acts of an unknown tortfeasor.” Resor , 108 F. Supp. 2d at 933.
C. Quoting some of the predicate language of T.C.A. § 56-7-1201(a), Farmers argues that Breedingis not“legally entitled” to recover damage s from the unidentif

ied nonparty

because “faul

t may not be attributed to that person where that p erson is not identified sufficiently to allow [Breeding] to plead and serve process on that person.” Thus, soFarmers’ argument goes, the UM sta tut es d o no t ap ply.
We are not

persuaded by

this reasoning. F

armers is, in

effect, say

ing that Brown applies to all situ ations involving phantom parties-at-fa ult first identified by already-sued def endants, including UM cases, and that, therefore, the uninsured motorist statutes do not apply because B reeding is not “legally entitled” to recover. The argument assumes that which it

sets out to prove, i.e. , that Brown , rather than the uninsured motorist statutes, applies to cases involving the negligence of an unknown driver identified by an

already- sued defendant w here a plaintiff

seeks to recover under the uninsured motorist coverage. As

previously s

tated, we are of

the opinion that Brown doe s no t ap ply in the context of UM cases. To hold otherwise would be to view Brown as carving out an exception to the UM statutory scheme. Courts have no such power. Shelby County Election Comm’n v. Turner , 755 S.W.2d 774, 777-78 (Tenn. 1988). Because we find that the holding in Brown does not apply to UM cases, that

case cannot ser

ve as a basis for f

inding that Bre

eding is not “leg

ally entitled” to recover against Farmers under the facts of this case.
D.
Farmers next argues that Breeding cannot prove the existence of the phantom driver. Hence, so the argument g

oes, she cannot pr

ove her case an

d her claim is subje

ct to dismissal on the4 Farmers relies upon the following language i n Brown :
After our review of the record, the parties’ arguments, and applicable aut

hority, we conclude that a defendant

may no t attribute fau lt to a nonp arty who is not ident ified sufficiently to allow the plaintif f to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, e ven if t he defendan

t establ ishes t he non p arty’s existence by clear and convinci ng evidence.
12 S.W.3d at 789 (emph asis adde d). Farmer

s argues that “ may not at

tribut e fault ” inclu des the con

cept of “ may not testify as to the unidentified party’s fault.” Since we find that Brown does not appl y to the facts of thi s case, we do not find i t nece ssary

to commen

t on Far mers’ inte

rpret ation of thi s lang uage f rom Brown

. -8- pleadings. To address this que st ion, w e again refe

r to T.C.A. § 56-7-1 201(e), which pr ovides, in pertinent part, a

s follows:
If the owner or oper

ato rof any motor

vehicle which ca

uses bodily injury or property damage to the insured is unk nown, the insured s

hall have no right to recover un der th e uninsured motorist provision unless: (1)(A) Actual physical contact shall have occurred betwee n the motor vehicle owned or operated by such unknown person and the person or property of the insured; or (B) The exis tence of such unknown motorist is established by clear andconv in cing evidence, other than any evidence pr ovided by occupants in the insured vehicle.
In this case, it is alleged that there w as no contact between the unknown vehicle and Breeding’s person or proper ty. Thus, Br

eedin g must sa

tisfy the requirement of T.C.A. § 56-7- 1201(e)(1)(B). Farmers arg ues that Breedi

ng has no right t o recover against Farmers because she cannot, as a matter of law, satisfy the requirement of s

ubsection (e)(1 )(B). Mo re specif ica lly, Farmers asserts that (1) Breeding is prohibited by

the statute

from establishing the existence of the phantomdri ver b y rel ying u pon evi den ce pr ovi ded by the oc cupants of her vehicle; and (2) the defendant Edwards, under B rown , is prohibited from establishing the existence of the phantom driver. 4 Thus, so the argument goes, the existence of the phantom driver cannot be established,5 Of course, this particular argument assume s that there is n o individua l, other than Edwards or may be an “occupant[] in the i

nsured veh

icle, ” who can te stif

y to the “exist ence of such unkno wn motor ist.” We do not know, at this preliminary

stage of th

e proceedings, whet

her this as sumption is cor rect or not. Th is being the cas e, we arguab ly could have rejected this particular argument on the basis tha t even if Brown applies to t he claim again st an uninsured motorist in this case, t

he record before us does no t show that the plainti ff cannot establish her UM claim without the assistanc e of the test

imony of Edwards or an individual in the plaintiff’s vehicle. Ho wever, since b oth parties see m to proceed on the assumption that Edwards is the sole witnes s to the existence of the unknown motorist

, we have elect

ed to address this second argu ment of Farmers. -9- either by the plaintiff or

the defendant, a

nd, consequently

, Breeding ha

s no right to reco

ver against Farmers. 5
This argument aga

in assumes that Brown is appl icab le to cases involvi ng unknown motori

sts under the facts of this UM case. As we have already stated, we do not a

gree with this

contention. Thus, while it is true that Breeding is statutorily prohibited fro m est ablishing the existence of the phantomdriver by

way of evidence provided by the occupants of her

vehicle, the existence of such driver may be established by clear a nd convincing evidence provided by the defendant Edwa rds, or by some third party other than an occ upant of the plaintiff’s vehicle.

E. Fin all y, Farmers argues that Breeding’s claim aga inst it must fail because the statute of limitations expired before she amended her complaint to allege the negligence of the phantom driver. The applicable statu

te of li mitat ions for personal injuries is one year. See T.C.A. § 28-3- 104(a)(1) (2000). However , if a defendant n

amed in a complaint that wa

s filed within

the limitations period a lleges that a nonparty caused or contributed to the injury or damage, and if the plaintiff’s cause of action again

st that nonparty

would otherwise be

barred by

the statute of limi

tations, the plaintiff has 90 days from the first pleading alleging the fault of the nonparty to add the nonparty as a defendant by amending his or her complaint. See T.C.A. § 20-1-119(a)(1). Breeding’s initial complaintwas filed within the period of the stat

ute of limitations.

After the limitations period had expired, the defendant alleged the fault of an unknown nonparty. B reeding amended her complaint

within 90 days of this allegation. Farmers argues that Breeding’s complaint against the unknown driver is untimely. More specifically, it asserts (1) that under Brown , the defendants

are prohibited f

rom attributing f

ault t o an unidentified nonparty; (2) that, therefore, Breedingcannot rely upon the defendant’s allegation of the existence of an unknown nonparty; (3) that T.C.A. § 20-1-119,

therefore, doe

s not apply; a

nd (4) that Bree

ding’s complaint

a gainst t he unknown driver was not timely filed.
Once a gain, Farmer

s’ argument is c

ontingent upon a f

inding that Brown applies to a cas e where an already-sued defendant asserts the existence of an unkno wn driver whose alleged negligence

is the predicate for the liability of a UM carrier. Because we hold that it does not, we find that the defendants’ allegation of the existence of a negligent unkn own m otorist was proper; that-10-

Breeding’s reliance upon this allegation was proper; and t hat Breeding’s amendment of her complaint was timely under T.C.A. § 20-1-119.
IV.
In summary, we

hold that a plaintif

f has a statutory

right to pursue a

n uninsured mo

to rist claim against its carrier based upon the alleged negligence of an unkn own motorist under the circumst a nces outlined in T.C.A. § 5 6-7-1201(e), wh ether the existenc

e of that motorist is f

irst asserted by an already-sued de

fendant or

is initially alleged by the plaintiff. Brown does not affect that statutory ri

ght. We further h

old that the plaintif

f’s claim against “John Doe

” in the instant ca

se was timely filed and that the plaintiff is “legally entitled” to

recover against that unknown motorist should t he trier of fact assign actionable fault to that driver. Finally , the issue as to w hether a plaintiff can make out its case under the provisions of T.C.A. § 56-7-1201(e) is an evidentiary one and dep end s up on t he p roo f at tri al; tha t is sue is a lso una ffec ted by Brown

. As the instant case

presents a situation where the unknown motorist’s fault can lead to the entry of a judgment, Brown does not prevent the defendants in this litigation from attempting to have fault allo c ated to the phantom driver. Any other approach would be unworkable in lig ht of our decision that

the plaintiff

has a statutory right to pursue a UM claim against its carrier based upon the alleged negligence

of the phant om dri ver. If the plaintiff can seek the allocation of fault to the phantomdriver because

there is UM cover

age, so may

the defendants h

ave fault allo

cated to the same driver. Of course, there will be only one allocation of fault to this phantom driver.
V. The judgment of the tri al court is reversed. Th e case is rema nded for fur ther proceed ings consistent with this opinion. Costs on appeal are taxed to the appellee.

_______________________________ CHARLES D. SUSANO, JR., JUDGE