FILED

September 2, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 September 2, 1997

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT JACKSON

7

8

9

10 JAMES R. FRUGE AND JANE FRUGE, (

11 (

12 Plaintiffs-Appellants, (

13 (

14 ( Shelby Circuit

15 (

16 v . ( Hon. George H. Brown, Jr.

17 (

18 ( No. 02S01-9601-CV-00005

19 (

20 JOHN DOE AND JANE DOE, (

21 (

22 Defendants-Appellees. (

23

24

25

For Plaintiffs-Appellants 26 : For Defendants-Appellees 

27 State Farm Insurance Company :

28

29 R. Sadler Bailey, Jr. Robert M. Fargarson

30 Memphis Memphis

31

32 C. Phillip M. Campbell Martin W. Zummach

33 Memphis Memphis

34

35

36 OF COUNSEL:

37

38 Neely, Green, Fargarson,

39 Brooke & Summers

40 Memphis

41

42

43

44 O P I N I O N

45

46

47

48

49

50 JUDGMENTS OF COURT OF APPEALS

51 AND TRIAL COURT REVERSED; CASE

52 REMANDED. REID, J.

53 This case presents for review the decision of the Court of
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1 Appeals affirming the trial court’s award of summary judgment denying

2 the plaintiffs’ claims under the uninsured motorist statute. That

3 decision is reversed, and the case is remanded.

4

5 I

6

7 On November 8, 1991, shortly before 6:30 p.m., the

8 plaintiffs, James R. Fruge and Jane Fruge, husband and wife,

9 sustained personal injuries in an automobile accident which occurred

10 as the vehicle operated by Mr. Fruge entered Interstate 40 from Front

11 Street in Memphis. According to their deposition testimony filed by

12 the insurer, State Farm Insurance Company, in support of its motion

13 for summary judgment, their vehicle was proceeding along the approach

14 ramp to I-40 when Mrs. Fruge warned Mr. Fruge, who was watching the

15 traffic approaching on I-40 from behind his vehicle, that a parked

16 vehicle with no lights was obstructing their lane of traffic. 

17 Mr. Fruge swerved his vehicle in order to avoid striking the parked

18 vehicle and thereby lost control of his vehicle, which then crashed

19 into a retaining wall. Immediately thereafter, other vehicles were

20 involved in a collision at the same location. The plaintiffs’

21 vehicle did not make physical contact with the parked vehicle or any

22 of the other vehicles. The plaintiffs do not know of any

23 eyewitnesses to their accident. 

24

25 Memphis police officer W. R. Rutherford arrived on the

26 scene at approximately 7 p.m. His affidavit, filed by the plaintiffs

27 in response to the insurer’s motion for summary judgment, contains
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1 the following account of his investigation:

2

3 On November 8, 1991 at approximately 6:45

4 p.m., a call was received by the Memphis Police

5 Department regarding a traffic problem on or near

6 the Hernando-DeSoto Bridge involving multiple

7 vehicles. I was dispatched and arrived on the

8 scene at approximately 7:00 p.m. Due to the

9 extent of vehicle involvement and the need to

10 clear the roadway as quickly as possible, I

11 called for assistance to secure the scene.

12

13 While completing my routine investigation, I

14 noted the probable source of the resulting

15 collisions to be a brown Ford Thunderbird

16 automobile that had apparently ran out of gas and

17 was blocking one or more lanes of westbound

18 traffic. Although vehicles either struck the

19 retaining wall or struck other vehicles, the

20 abandoned automobile was not struck by any of the

21 involved parties. The abandoned automobile was

22 unlicensed, was without a driver and had to be

23 towed from the scene by wrecker so that the

24 roadway could be finally cleared. I was unable

25 to identify the driver of the abandoned vehicle

26 and the vehicle was not claimed before being

27 towed to the City Lot for storage.

28

29

30

31 The plaintiffs filed suit for damages against unknown

32 defendants and served State Farm with process. State Farm answered

33 the complaint and subsequently filed a motion for summary judgment,

34 claiming there was no material issue of disputed fact. The trial

35 court granted the motion and the Court of Appeals affirmed.

36

37

38

39 I I

40

41 The issue to be decided is whether the uninsured motorist
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1 insurance carrier is entitled to summary judgment. This is a

2 question of law, and there is no presumption in favor of the trial

3 court’s decision. Rule 56.03, Tennessee Rules of Civil Procedure,

4 provides, in pertinent part:

5

6 The [summary] judgment sought shall be rendered

7 forthwith if the pleadings, depositions, answers

8 to interrogatories, and admissions on file,

9 together with the affidavits, if any, show that

10 there is no genuine issue as to any material fact

11 and that the moving party is entitled to a

12 judgment as a matter of law.

13

14

15 A motion for summary judgment should be granted only where

16 the movant has demonstrated that there is no disputed material fact

17 to be resolved and the moving party, therefore, is entitled to

18 judgment as a matter of law. When there is a genuine dispute

19 regarding any material fact or the conclusions or inferences to be

20 drawn from the facts, summary judgment does not lie. Summary

21 judgment is not a substitute for the trial of issues of fact. 

22 Determinations of credibility, the weight to be given evidence, and

23 the inferences to be drawn from facts proven are jury functions. 

24 When ruling on a motion for summary judgment, the court must take the

25 strongest legitimate view of the evidence in favor of the non-moving

26 party, allow all reasonable inferences in favor of that party, and

27 disregard all opposing evidence. The evidence of the non-movant is

28 taken as true and all reasonable inferences in the non-movant’s favor

will be allowed. Byrd v. Hall 29 , 847 S.W.2d 208 (Tenn. 1993). Summary

30 judgment is not a disfavored procedural device and may be used to

31 conclude any civil case, including negligence cases, that can be and
1

(e) If the owner or operator of any motor vehicle which causes bodily

injury or property damage to the insured is unknown, the insured shall have no

right to recover under the uninsured motorist provision unless:

(1)(A) Actual physical contact shall have occurred

between the motor vehicle owned or operated by such

unknown person and the person or property of the

insured; or

 (B) The existence of such unknown motorist is

established by clear and convincing evidence, other

than 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 appropriate

law enforcement agency within a reasonable time after

its occurrence; and

(3) The insured was not negligent in failing to

determine the identity of the other vehicle and the

owner or operator of the other vehicle at the time of

the accident.

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1 should be resolved on legal issues alone, Mansfield v. Colonial

2 Freight Systems , 862 S.W.2d 527 (Tenn. Ct. App. 1993); but, as a

3 general rule, negligence cases are not amenable to disposition on

4 summary judgment. McClenahan v. Cooley , 806 S.W.2d 767, 775-76

5 (Tenn. 1991); Keene v. Cracker Barrel Old Country Store, Inc. , 853

6 S.W.2d 501, 502-503 (Tenn. Ct. App. 1992).

7

8 III

9

10 This case is controlled by Tenn. Code Ann. § 56-7-1201(e)

(1994). 111 In order to prevail on a claim for uninsured motorist

12 benefits, the insured must meet the requirements of subsections 1(A)

13 or 1(B) and (2) and (3). State Farm does not deny that Mr. and Mrs.

14 Fruge have complied with subsections (2) and (3). The plaintiffs do

15 not claim that their vehicle experienced actual physical contact with
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1 the vehicle parked on the highway. Consequently, the case turns on

2 the provisions of subsection (B): “The existence of such unknown

3 motorist is established by clear and convincing evidence, other than

4 any evidence provided by occupants in the insured vehicle.” Since,

5 for the purposes of subsection (B), the plaintiffs cannot rely upon

6 their own testimony, the statements contained in Officer Rutherford’s

7 affidavit are determinative.

8

9 Officer Rutherford, of course, did not witness the

10 accident. However, in the course of his investigation, he did

11 observe evidence of the collision, including the location where it

12 occurred, the position and condition of the plaintiffs’ vehicle and

13 the presence of other damaged vehicles at that location. Officer

14 Rutherford saw, upon his arrival at the scene approximately 30

15 minutes after the accident occurred, a brown Ford Thunderbird

16 automobile parked in the plaintiffs’ proper traffic lane. He stated

17 that he was unable to ascertain the identity of the owner or operator

18 of that parked vehicle. 

19

20 The Court of Appeals held that Officer Rutherford’s

21 testimony was not sufficient to defeat the motion for summary

22 judgment. That court found that Officer Rutherford’s testimony does

23 not prove by clear and convincing evidence the existence of an

24 abandoned automobile that caused the plaintiffs’ damages. According

25 to that court’s interpretation of the statute, the insured must prove

26 by clear and convincing evidence, not produced by the occupants of

27 the vehicle, the existence of the vehicle and also that the vehicle
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1 caused the injuries. The court stated that under Rule 602, Tennessee

2 Rules of Evidence, Officer Rutherford’s testimony was not admissible

3 on the issue of causation because he did not witness the accident. 

4 The court concluded there was no proof of causation. 

5

6 The decision by the Court of Appeals puts into perspective

7 for analysis the evidence necessary to defeat the insurer’s motion

8 for summary judgment in an action for uninsured motorist benefits. 

9 Prior to the 1989 amendment to Tenn. Code Ann. § 56-7-1201, there

10 could be no recovery unless there was actual physical contact between

11 the uninsured motorist’s vehicle and the insured’s vehicle. See

12 e.g. , Hoyle v. Carroll , 646 S.W.2d 161 (Tenn. 1983). The requirement

13 of physical contact with the vehicle operated by the unknown motorist

14 prohibited recovery in cases where the unknown motorist caused the

15 accident but there was no physical contact between the vehicles. 

16 Subsection (e)(1)(B), enacted in 1989, allows recovery in cases

17 where, for example, the insured is forced off the road by an unknown

18 motorist without physically striking the insured’s vehicle. The high

19 standard of proof required by the amendment, clear and convincing

20 evidence produced by witnesses other than the occupants, obviously

21 was intended by the legislature as a safeguard against bogus claims

22 arising from one-vehicle accidents. Cf. id. at 162.

23

24 Even though the statute is subject to more than one

25 possible interpretation, it appears that the requirements of

26 subsection (B) apply only to the existence of the unknown motorist. 

27 Prior to the amendment, there was no requirement in the statute that
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1 the conditions essential for coverage be proved by more than a

2 preponderance of the evidence. Generally, an insurance claim can be

3 proven by a preponderance of the evidence.

4

5 The burden of proof is generally upon a

6 plaintiff to establish a case under a policy of

7 insurance. The plaintiff must prove all material

8 allegations of the complaint by a fair

9 preponderance of the evidence, and the insurer

10 need not offer any testimony in order to complain

11 of the insufficiency of the evidence to support a

12 judgment against it.

13

14

15

21 John Alan Appleman & Jean Appleman, Insurance Law and Practice 16 § 

17

18 12091 (1980). So, in the absence of a statutory provision, proof by

19 a preponderance of the evidence is sufficient. In addition, analysis

20 of the language of the statute leads to the same conclusion. 

21 Causation is not mentioned in subsection (B). The only reference in

22 subsection (B) to another portion of the statute is in the phrase

23 “such unknown motorist,” which refers to that portion of section (e)

24 which defines unknown motorist as “the owner or operator of any motor

25 vehicle which causes bodily injury or property damage to the

26 insured.” The clause “which causes bodily injury or property damage”

27 only identifies the owner or operator. Additional language would be

28 necessary to indicate clearly that causation, as well as existence,

29 must be proven by clear and convincing evidence. Since the

30 requirement of subsection (B), clear and convincing evidence other

31 than evidence provided by occupants in the insured vehicle, applies

32 only to the existence of the unknown motorist, the other essential

33 elements of the claim, including causation, may be established by the

34 preponderance of the evidence. Also, evidence produced by the
2

The “clear and convincing” standard falls somewhere between the

“preponderance of the evidence” in civil cases and the “beyond a reasonable

doubt” standard in criminal proceedings. To be “clear and convincing,” the

evidence must “produce in the mind of the trier of facts a firm belief or

conviction as to the allegations sought to be established.” Hobson v. Eaton ,

399 F.2d 781, 784 n. 2 (6th Cir. 1968), cert. denied , 394 U.S. 928 (1969). 

“Clear and convincing evidence means evidence in which there is no serious or

substantial doubt about the correctness of the conclusions drawn from the

evidence.” Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). 

See e.g. In re Estate of Armstrong , 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993).

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1 occupants of the vehicle is not inadmissible as to those elements. 

2

3 The next question is whether the evidence presents issues

4 of disputed fact. As stated above, summary judgment is appropriate

5 where there is no disputed material fact. The evidence before the

6 Court presents two issues of disputed material fact, the existence of

7 the unknown motorist and the cause of the plaintiffs’ accident. 

8 Officer Rutherford’s testimony is probative of the existence of a

9 motor vehicle the owner and operator of which are unknown. A jury

could find that such evidence is clear and convincing. 210 The

11 testimony of Officer Rutherford and the plaintiffs is probative of

12 the fact that the parked vehicle was the cause of the accident. On

13 summary judgment motion, the non-moving party is not required to

14 present conclusive evidence of all the essential elements, only

15 material evidence on which a jury could find the facts; the weight to

16 be given evidence is the exclusive prerogative of the jury. A jury

17 could find on the evidence in the record and on the reasonable

18 inferences that could be drawn therefrom that an unknown motorist

19 existed and also that the unknown motorist caused the accident. 

20 

21 State Farm likens the parked vehicle in this case to the

22 ladder lying on the travelled portion of an interstate highway in
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1 Bruno v. Blankenship , 876 S.W.2d 294 (Tenn. Ct. App. 1992). In that

2 case, the Court of Appeals sustained summary judgment for the insurer

3 because it found no evidence tracing the ladder to a motorist. 

4

5 The case before the Court is different because it involves

6 a motor vehicle, and the statute imposes liability on the ownership

7 and operation of motor vehicles. The presence of an unlighted motor

8 vehicle on the travelled portion of a busy highway at night is

9 certain evidence of negligence, even if it was dropped there by an

10 alien spacecraft. That vehicle was owned by someone, and that

11 someone is an unknown motorist within the meaning of the statute. 

12 Whether that vehicle was present when Mr. Fruge lost control of his

13 vehicle and whether it was the cause of the plaintiffs’ accident are

14 fact issues for the jury. 

15

16 I V

17

18 The judgment of the Court of Appeals and the trial court

19 are reversed, and the case is remanded to the trial court for further 

20 proceedings. Costs are taxed to State Farm Insurance Company.

21

22 _______________________________

23 Reid, J.

24

25 Concur:

26

27 Anderson, C.J., Drowota, Birch, 

28 and Holder, JJ.

29