IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) TRACY W. M OORE, Dec eased, by ) Henderson County Circuit Court Parent and Next of K

in, SHIRLEY ) R. D. No. 95-142 MOORE; and SHIRLEY MOORE , ) Individually , ) ) Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 02A01-9609-CV-00277 ) JAMES A. P

RESCOTT, II, ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Henderson County at Lexington. Honorable Whit Lafon, Judge
George L. Morri son, III , Attorney for Plain tiff/App ellant.

David W. Camp , WALDROP & HAL

L, P.A., Jackson, Tennessee At to rn ey for Re sp on de nt /A pp el le e H au le rs Ins ur an ce Co mp an y.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
CRAWFORD, P.J.,W.S : (Concur s) HIGHERS, J. : (Concur s)Plaintiff Shirley Moore, on her

own behalf and on behalf of he r deceased son, Tracy W. Moore, a

ppeals the trial court’s order granting the motion for summary judgment filed by Appellee Haulers Insurance Company, Moore’s uninsured motorist ca rrier. In g ranting the motion, the trial court ruled that the automobile insurance policy issued by

Haulers did not cover Moore’s claim because Moore fa iled to g ive promp t notice o f the cla imto Haulers as required by the policy provision s. We aff

irm.

For purposes of Haulers’ summary judgment motion, the follow ing f acts were undisputed. Moore applied for the automobile i nsuran ce pol icy in que stio n in J une 19 93 th rough her family insura

nce agent, Kenneth Baker . Baker filled out the insurance application for Moor e, and Moore signed the application. The applica tion requi red Moore, in a section entitled DRIV ER/HOUSEH OLD R

ESID ENTS, to lis t“all residents of household 14 y ears or older.” The applic ation, as completed by B aker and signed by Moore, listed only Moore in this section. Th i s information was not correct because the dec edent, Tracy Moore, was over

the age of 14 and he lived in Moore’s home at the time she applied f or the policy . Although Tracy was not listed on the app lication, Moore inf

ormed B aker at

the time of

applica tion that T

racy and some o f her oth

e r children resided in her home. Moore explained that she did not want Tracy and her other

children listed because she would not allow them to drive her car a nd s he could n ot afford additional premiums for the children.

The policy

s ubsequently issued by Haulers contained provisions for uninsured motorist coverage. As pertinent, these pr ovisions afforded insurance coverag e to Moore and any “family member. ” The policy

defined “family member” as “a person related to [Moore] by blood, marri age or adoption who is a re sident of [Moore’s] household. ” Relativ e to Moore ’s duty to notify Haulersof an ac cident or loss, the p olicy

provided that:

We [Haulers] have no duty to provide cove rage under this policy unless the re has been full c omplianc e with the following

duties: A. We mu st be no ti fi ed pr om pt ly of how, when and where the accident or loss happened. Notice should al so inc lude the names and addres ses of any injured per sons and of any witnesse s.On October 8, 199 4, 21-y ear-ol d Tracy

was fata lly injured in

a one-c ar acc ident. Tracy ’s friend, Defendant James A. Prescott, II , was drivi ng the c ar. At the time of the

accide nt, Tracy was still a resident of Moore’s home. At the funeral home after Tracy ’s death, Moore learned from Prescott’s father that

Prescott was uninsured. Within a few weeks after the accident, Moore consulted som e at to rne ys in Le xi ngton, but they a dvised Moore that filing a lawsuit would be pointless because Prescott was uninsured and because Tracy

was not listed as an additional insured on Moore’s automobile insurance policy
.

Sometime

after January

1, 1995, Moore’s insurance agent, B aker, learned that Tracy had been kill ed in

a car accident. One of Tra cy’s brother s was in Baker’s office pay ing a premium, and he showed Baker a newspape r clipping about Tracy ’s death. About four or five months after the accide nt, Moore was in Baker’s office on some unr

elated business. When Moore told Baker about Tracy ’s accident, Baker stated that he knew about the accident because he had read about it in the newspaper. During

this conversation, Moore also informed Baker tha t the driver of

the car , Prescot

t,
was uninsured. Baker then made a telephone call on Moore’s behalf to determine if Presc ott’s father could be held liable for the acc iden t. Upon concluding the call, Baker told Moore tha t Prescott’s father could not be held liable because Prescott wa s over 18 yea rs of age.

In Septembe

r 1995, Mo ore made

one last a ttempt to c onsult an a

tt o rney about Tr

acy’s accide nt. The attorney

with whom Moore met this time agreed to represent Moore on her claim for Tracy ’s death. On September 28, 1995, Moore’snew attor ney notified B aker tha

t Moore wo

uldbe filing a claim und

er the un insured m otorist pr ovisions of

Moore’spolicy

with Haul ers.

In October 1995, Moore filed this lawsuit against Prescott. Haulers, as Moore’s uninsured motorist carrier, was served with a copy of the complaint. In its answer, Haulers raised
as defense s, inter alia , (1) that Moore failed to give prompt notice of the claim for Tracy ’s death as required by the provisions of Moore’s insur anc e policy and (2)that Moore made a material misrepresentation on her ap plication for insur ance by failing to identify Tracy as an individual over the age of 14 residing in Moore’s home. B asedon these d efense s, Haule

rs subseq uently moved for summary ju dg me nt on th e i ss ue of co ve ra ge . B y consent order, the parties agree d to sever the
covera ge issue from the r

emaining issues in th

e lawsuit
.In granting Haulers’ motion for summary judgment, the trial court citedthe following
reasons :

1. [Moore] failed to give pr ompt notice

of the cl aim in ques tion t o [Haulers ]; 2. The policy

in qu estio n did not af ford co verage for the claim as asserted.
This appeal followed.

In Lee v. Lee , 732 S. W.2d 275 (Tenn. 1987), our supreme court, in construing an identical policy

provision requiring prompt

notif ication of loss, concluded that such n otice provisions impose upon the insured

[The] duty . . . to give notice when [the insured] b ecomes, or should become awareof, facts which would suggest to a re asonably prude nt person that the event for which coverage is sought

might re asonably be expected to produce a claim against the insure r.

Lee , 732 S.W.2d at 276. This Court subsequently has made cle ar that the duty to give notice does notarise un

til an ordinarily or r

easonably pr

udent person would have known (1) that an event had
o ccurred, and (2) that such event might reasonably be expected to produce a clai m again st th e insurer. Allstate Ins. Co. v. Wilson , 856 S.W.2d 706, 709 (Tenn. App. 1992).

In Allstate Insurance Co. v. Wilson , 856 S.W.2d 706, 709 (Tenn. App. 1992), the event in question, an accidental shooting, occurred on May 23, 1988, but the insureds did not notify their insuranc e compan

y of the acc ident until

Octo ber 24, 1 988. The c ourt held that, unde

r these circumst ances, the insuredsfailed to co mp ly w it h t he no ti ce pr ov is io ns of th ei r h om eo wn er ’s po li cy. Id. The court reasoned that, although the insureds ha d reas onab le grou

nds to beli eve that

a claim would arise a gainst them, “[t]he

y g ave no no tice to the

insuranc e compan

y un til approximately five months after the incident occurred.” Id.

In an unreported decision, the middle section of this Court has concluded that evena

three- month dela

y in reporting the ac cident ma y c onstitute

a breac h of the in sureds’ duty

to provide promptnotice. In Allstate Insu rance Co. v . Hamilt on , No. 01A 01-9 006- CH-0 0221, 1990 W L 165071, at *2 (Tenn. App. Oct. 31, 1990), the incident occurred on July 3, 1988, whe n the insur

eds’ dog bit a child on the ear. The insureds were not awar e that their homeowner’s policy provided liabili tycoverage for such incident s, so they

did not noti fy

their insu

rer of th e incide nt until October 13, 1988, three months and ten day s later. In concluding that the insure ds had breached their duty of prompt notice, the cour t focusedon what the insure ds knew, o r should have known, at the time the incident occurred. Id. , at *3. First, it was uncontradicted that the insureds knew they had a homeowner’s policy with the insurer. Fur

th er, the court concluded that the insureds were charged with knowledge of the policy ’s provisions, includi n g the lia bility provision

which wou

ld have covered the event in question. Finally , the court notedthat the insureds should have been aware of the seriousness of the incident because the injured child bled a g reat deal and the police were called to investigate. Id.

In Allstate Insu rance Co. v . Davis , No. 03A01-9512-CV-00426, 1996 WL 149383 (Tenn. App. Apr. 3, 1996), the court held that the insured breached the duty to provide prompt notice where the insured waited over six months before reporting a ca r accident in which he was involved. In determin

ing whe n the insur

ed should h ave prov

ided notic e of the a

ccident , the cour

t again focused
on the knowledge in the insured’s possession. Initially , the insureddid not consider the car accident to be seriou s enough to rep ort because he only “bumped” the rear of another ve hicle and, upon quest ioni ng, the vehicle’s occupants indicated that they were

unhurt. Id. , at *1. Two to six weeks after the accident, however, the insured was infor med by the owner

of the other vehicle that the car had been “totaled.” Id. The court concluded that, under these undisputed facts, the insured “had a duty to give notice to his insurance company of the accide nt, certainly no late r than the time the owner of the other vehicle advised him that the vehicle ha d been ‘totaled’.” Id. , at *2.

In th e p resent a

ppeal, Mo ore cont

ends that she compl

ied with th

e automob ile insurance policy ’s prompt n otificat ion provis ion when s he discus sed Tracy’ s death withher ag ent, Baker, four or five months after the accident . During thi s conversation, Baker was notified that Tracy had beenfatally injured in a car ac cident a

nd that the

car’s d river wa s uninsure d. Bake r also had been told at the time the policy was issued that Tracy

still lived at home.For purposesof this ap

peal, we need

not decide the issue of whether the information learned by Bake r during this conversation constituted sufficient notice of the acc id ent under the terms of Haule

rs’ policy. Even assuming that the information provided was sufficient, we conclude,
as a matter

of law, th at Moore ’s four- to five-m o nth d elay in notify

ing Baker of the acc ident constituted a breach of Moore’s duty to provide prompt notice of the accident under the policy. See Alls tate In s. Co. v. Wilson , 856 S.W.2d 7 06, 709 (Tenn. App. 1992) (f ive-month

delay ); Allstate Ins. Co. v. Hamilton , No. 01A01-9006-CH- 00221, 1990 WL 165071, at *3 (Tenn. App. Oct. 31, 1990) (three-month delay ).

In reaching thi s conclusion, we have considered th e knowledge in Moore’s possession shortly after the death of her son. Moore knew that Tracy had been involved in a serious car accident which had resulted in his d eath. At t

he funer al h ome short

ly th ereafter, Moore learne d from the father of the car’s driver that the driver wa s an uninsuredmotorist. Moreover, as the insured under the subject policy, Moore wa s charged with knowledge of the policy ’s provisions, including the uninsured motorist provisions. See Allstate Ins. Co. v. Hamilton , 1990 WL 165071, at *3. Based
on the undisputed facts, Moore’s duty to give the insurer prompt notification of Tracy ’s accident
arose no later than the time Moore was infor med th at the only driver involved in the single-car accident was uninsured. See Allstate Ins. Co. v. Davis , No. 03 A01- 9512- CV-0 0426, 1996 W L 149383, at *2 (Te

nn. App. A

pr. 3, 199 6). As a

matter of law, therefore, Moore bre ached the duty of prompt notice by waiting f our or five months to notify Baker of the accident. Allstate Ins. Co. v. Wilson , 856 S.W.2d a

t 709; Allstate Ins. Co. v. Hamilton , 1990 WL 165071, at *3; cf. Wilhite v. Tennessee Farmers Mut. Ins. Co. , 510 S.W.2d 885, 887 (Tenn . 1 974) (holding that notice require ments of automobile insurance policy were met where

insured decedent’s father telephoned agent within two or three weeks of fatal collision but agent informed him that claim was not covered by policy ’s uninsured motorist provisions).

Al te rn at iv el y, Moore argues tha t Ba ker received sufficient no tification of the accident
as early a s January 1995 when B aker was shown the newspaper ar ticle about Tracy ’s death by one of Moore’s other sons. We note, however, that even this earlier notification involved a delay of three months, which this court has concluded constituted a b re ach of the duty of prompt notice. See Allstate Ins. Co. v. Hamilton , 1990 WL 165071, at *3. Moreover, we question whethe r the1 See Spellmeyer v. Tennessee Farmers Mut. Ins. Co. , 879 S.W.2d 843 (Tenn. App.

1993); Clingan v. Vulcan Life Ins. Co. , 694 S.W.2d 3 27 (Tenn . App. 198 5); Milligan v. M FA Mut. Ins. Co. , 497 S.W.2d 736 (Tenn. App. 1973); T.C.A. § 56-7-103 (1994). information provided

to Bake r at t his time was specific enough to comply with the policy’s notification provision . The ea stern se ction of th is Court rec ently

stressed the importance of this ty pe of notice provision:

The type of notice a t issue in th

is case has been labeled by the courts of this sta

te as “a vital and indispensable condition precedent to recovery

under the policy.” Hartford Ac cident and Ind emnity Co. v. Creasy , 530 S.W.2d 778, 779 (Te nn. 1975). “The general purpose of a notice provision is to make the insurer aware that a cla im may be fo rthcoming and provide an adequate opportunity for inve stigation.” Allstate Insu rance Co. v . Fitzgeral

d , 743 F. Supp
. 539, 542 (W.D. Tenn. 1990).
Posey v. W

illia ms , No. 03A01-9603-CV-00080, 1996 WL 673995, at *3 (Tenn. App. Nov. 22, 1996).

We conclude that the information provided by Tracy ’s brother

in January 1995 failed to satisfy Moore’sobligat

ion to provide prompt notice of the accident because the information was insufficient to put Baker on notice that a claim under Moore’s a utomobile insurance policy mig ht be forthcoming. At

this time, T

racy ’s brothe

r merely informed Baker that Tra cy had bee n killed in
a car ac cident. T

racy was not a

named ins ured on Mo ore’s policy, and at that time Baker had no knowl edge that the driver of the car was uninsured or that a claim might be forthcoming pursuant to th e u ni ns ur ed mo to ri st pr ov is io ns of Mo or e’ s p ol ic y.

We hold that, under the circumstances of this case, the trial cour t properly ruled tha

t Moo re failed togive pr

ompt notice

of the cl aim as required by the provi sions of the automob ile insurance policy issued by Haulers and, thus, that Moore’s claim was not cov er ed by the policy ’s uninsured motorist

provi sion s. In li ght of o ur hol ding, we need not addre ss the mer

its of Haulers’ misrepresentation defense. 1

The trial court’s judgmen t is affir med. Costs o f this app eal are taxed to App ellants, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)