# FILED
February 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

DONALD E. GRIFFIN, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9712-CH-00700 VS. ) ) Davidson Chancery ) No. 97-1104-I(II) SHELTER MUTUAL INSURANCE ) COMPANY, ) ) Defendant/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. Mc COY, CHANCELLOR

CHARLES PATRICK FLYNN MICHAEL K. RADFORD 214 Centerview Dr

ive, Suite 233 Brentwood, Tennessee 37027 Attorneys for Plaintiff/Appellant THOMAS W. HARDIN KIM B. KETTERING 102 W. Seventh Street, Suite 100 Columbia, Tennessee 38402-0692 Attorneys for Defendant/Appellee

AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - The Chancery Court of Dav idson County

granted summary judgment to appellant’s underinsured motorist car rier because appellant failedto comply with the notice provisions of the policy and the service provi sions of Tenn. Code Ann. § 56-7- 1206(a). The appel la nt contends that he did comply with the policy pr ovisions and that Tenn. Code Ann. § 56-7-1206(a) does not apply under

th e f ac ts of th is case . We affirm the trial court on the failure to follow the statute. We reverse the dismissal on the failure to follow the policy’s notice provisions.

I.

The appellant, Donald E. Griffin, sued Richard Vaughn for $500,000 for injuriesthe appellant sustained in an automobile accident in Maury County. Mr. Griffin had underinsured motorist cov erage with Shelt er Mutual Insurance Company (Shelter), but he did not ser ve Shelter with any of the suit paper s. Shelter did, however, pursue a subrogation clai m for the payments made to Mr. Gr iffin under the policy. Mr. Griffin’s lawyer agr eed to handl e the subrogation claim w ithout cost to Shelter.

Mr. Griffin obtained a judgment against Mr. Vaughn for $225 ,000, only $50,000 of which was cov ered by the defendant’s insuranc e. Mr. Griffin then demanded that Shelter pay the difference be tween the $50,000 and the limits of Shelter’s underinsured coverag e. When Shelter refused, this acti on followed. The chancellor granted summary judgment to the defendant.

II.- 3 - Shelter resisted Mr. Griffin’s claim on two grounds.The first is found in Tenn. Co de Ann. § 56-7-1206(a) whi ch requires an insured intending to rely on hi s uninsured motorist coverag e to serve a copy of the proces s issued against the uninsured tortfeasor on theinsurance company “in th e manner prescribedby law, as though such insurance company w ere a party defendant.” We have said that an insured must strictly comply with the statute’s req uirements. Eyman v. Kentucky Central Ins. Co. , 870 S.W.2d 530 (Tenn. App. 993).

In Eyman , we said th at a lette r to the in surance c ompany encl osing a copy of the summons and the complaint serv ed on the tortfeas or was not sufficient to satisfy the statutory mandate. In Glover v. Tennessee Farmers Mutual Ins. Co

. , 468 S.W.2d 727 (1971), ou r Supreme Court held that an insured must follow the statute and cannotordinarily file a direct action against his uninsured motorist carrier.

In Bolin v. Tennessee Farmers M utual Ins. Co. , 614 S.W.2d 566 (Tenn. 1981), however, the Supreme Court recognized an exception to the strict application of the statute, where the plaintiff pursued his tort claim against an appa rentlyinsured defendant without serving his own carrier, but after ob taining a judgm ent, the

plainti ff discovered that the defendant was in fact uninsured. The plaintiff then sued his own carrier and our Supreme Court allowed him to succeed, alt hough the Court adhered to the holding in Glover “a s a gener al rule.” The Court found it s ignificant that the p laint iff’s uninsured carrier had been actively invol ved in the litigati on because the carrier had to defend the plainti ff from some adverse claims arisi ng outof the same accident. The Court said:

It is obviou s that under some circumstances an insurance carrier becomes subject to a

claim under these statutes at a fairly late stage, or

even after the conclusion, of litigation against the tort-feasor.

* * * The rule laid down by the Court of Appeals in the present case would be a harsh one and would re quire every plai ntiff, suing an apparently i nsured defendant, also to- 4 - implead his own uninsur ed mo torist carrier or otherwise lose the bene fit of h is cove rage in the event the tortfeasor should prove to be uni nsur ed for some reason unknown to the p laintiff. Bolin at 568, 569.

The appellant

insists that his case c

omes within the

Bolin ex ce pt io n. We do not think, however, that the exception goes that far. If it did, the exception would
soon swallow the

rule. There are two facts that distinguish this case from Bolin . The first is the fact that this defendant w as not completely uninsure d. The second is the fact that the uninsured carrier actively participated in the Bolin trial because it w

a s required to defend its cli ent from the claims arising out of the same accident. Thus, the carrier was not p rejudiced by being l eft out of the litigation.

The appellant’s case is a more typical case where the plaintiff asserts
a large claim ($500,0000) and the defendant apparently has li ability insurance. U nder these circumstances, is the plaintiff justified in assuming that he will not

need to rely
on his uninsured motorist cov erage? Or does it make more sense to follow the statutory manda te and serv e the uninsured motorist car rier so that the carri er may determine how to protect its own interests? We think th e answer is obvious.

It is true that the carri er in this case pursued its subrogation claim; but that participation was through the appellant’s counsel, w ho assured the carrier tha t its subrogation interest w ould be protected. There is nothi ng in this record to i ndicate that the carrier was otherwise involv ed in this case.

We conclude that the claim against the carrier was pr operly dismissed because of the failure to serve the carrier according to Tenn. Co d e Ann. § 56-7- 1206(a).

III.- 5 - The second ground on which the chancellor granted summary judgment concerns the policy language. In the general provisions the policy says:

A person claiming cov

erage under

this policy must . . .(1) Cooperate with us and assist us in any matter concerning a clai m or suit; (2) Send us promptly any legal papers received or relating

to any claim or suit .

. . Part IV, titled Uninsure

d Motorists, contains the provision: If, before we make payment of loss, the insured or the insured’slegal representativ e institutes any legal

action for bodily inju ry

against any other pers

on or organization legally responsible for the use of an auto involved in the accident, a copy of the summons andcomplaint or other process served in connection w ith the legal action shall be forwarded immediately to u s. (Emphasis in origi nal.)
Without any showing of prejudice to S helter, thechancellor dismissed the complaint on the failure t o comp ly with these prov isions also. The appellant makes a strong argument that neither provision applies under the facts of this case, but we take no position on that argument because of a change in the law since the decision below.

When the chancellor decided this case an insurance compa ny was entitled to the dismissal of a claim under an insurance policy i

f the pol icy’s notice provisions

were not complied with. Our courts r ecognized that noncomplianc e with the noti ce p rovisions was a c omplete defense, regardless of any prejudice to the insurance company. Hartford Acc. & Indem. Co. v. Creasy , 530 S.W.2d 778 (Tenn. 1975). On December 21, 1998, however, our Supr eme Court decided that the failure to give notice only

raised apresumption of prejudice, and that the insured could rebut the presumption by provi ng that the insurance company was not prejudiced. Alcazar v. Hayes , ____ S.W.2d ____ (Tenn. 1998).- 6 - The issue of prejudice to the company has not been raised in this case; consequently the plainti ff has not had a chance torebut it. We hold, therefore, that the judgment dismissing the complaint on this ground should be reversed.

We affirm the court’s dismissal of the complaint on the ground that the plainti ff failed to co mply wit h Tenn. Code Ann. § 56-7-1206(a). We reverse the dismissal on the ground that the plainti ff failed to comply with the policy requirements. We remand the case to the Chancery Cou rt of Davi dson County for any further necessary proceedings . Tax the costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE