# FILED

September 2, 1997 Cecil Crowson, Jr. Appellate Court Clerk September 2, 1997 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT JACKSON 6 7 8 9 JAMES R. FRUGE AND JANE FRUGE, ( 10 ( 11 Plaintiffs-Appellants, ( 12 ( 13 ( Shelby Circuit 14 ( 15 v . ( Hon. George H. Brown, Jr. 16 ( 17 ( No. 02S01-9601-CV-00005 18 ( 19 JOHN DOE AND JANE DOE, ( 20 ( 21 Defendants-Appellees. ( 22 23 24 25 For Plaintiffs-Appellants: For Defendants-Appellees 26 State Farm Insurance Company: 27 28 R. Sadler Bailey, Jr. Robert M. Fargarson 29 Memphis Memphis 30 31 C. Phillip M. Campbell Martin W. Zummach 32 Memphis Memphis 33 34 35 OF COUNSEL: 36 37 Neely, Green, Fargarson, 38 Brooke & Summers 39 Memphis 40 41 42 43 O P I N I O N 44 45 46 47 48 49 JUDGMENTS OF COURT OF APPEALS 50 AND TRIAL COURT REVERSED; CASE 51 REMANDED. REID, J. 52 This case presents for review the decision of the Court of 53-2-

Appeals affirming the trial court’s award of summary judgment denying 1 the plaintiffs’ claims under the uninsured motorist statute. That 2 decision is reversed, and the case is remanded. 3 4

I 5 6 On November 8, 1991, shortly before 6:30 p.m., the 7 plaintiffs, James R. Fruge and Jane Fruge, husband and wife, 8 sustained personal injuries in an automobile accident which occurred 9 as the vehicle operated by Mr. Fruge entered Interstate 40 from Front 10 Street in Memphis. According to their deposition testimony filed by 11 the insurer, State Farm Insurance Company, in support of its motion 12 for summary judgment, their vehicle was proceeding along the approach 13 ramp to I-40 when Mrs. Fruge warned Mr. Fruge, who was watching the 14 traffic approaching on I-40 from behind his vehicle, that a parked 15 vehicle with no lights was obstructing their lane of traffic. 16 Mr. Fruge swerved his vehicle in order to avoid striking the parked 17 vehicle and thereby lost control of his vehicle, which then crashed 18 into a retaining wall. Immediately thereafter, other vehicles were 19 involved in a collision at the same location. The plaintiffs’ 20 vehicle did not make physical contact with the parked vehicle or any 21 of the other vehicles. The plaintiffs do not know of any 22 eyewitnesses to their accident. 23 24 Memphis police officer W. R. Rutherford arrived on the 25 scene at approximately 7 p.m. His affidavit, filed by the plaintiffs 26 in response to the insurer’s motion for summary judgment, contains 27-3-

the following account of his investigation: 1 2 On November 8, 1991 at approximately 6:45 3 p.m., a call was received by the Memphis Police 4 Department regarding a traffic problem on or near 5 the Hernando-DeSoto Bridge involving multiple 6 vehicles. I was dispatched and arrived on the 7 scene at approximately 7:00 p.m. Due to the 8 extent of vehicle involvement and the need to 9 clear the roadway as quickly as possible, I 10 called for assistance to secure the scene. 11 12 While completing my routine investigation, I 13 noted the probable source of the resulting 14 collisions to be a brown Ford Thunderbird 15 automobile that had apparently ran out of gas and 16 was blocking one or more lanes of westbound 17 traffic. Although vehicles either struck the 18 retaining wall or struck other vehicles, the 19 abandoned automobile was not struck by any of the 20 involved parties. The abandoned automobile was 21 unlicensed, was without a driver and had to be 22 towed from the scene by wrecker so that the 23 roadway could be finally cleared. I was unable 24 to identify the driver of the abandoned vehicle 25 and the vehicle was not claimed before being 26 towed to the City Lot for storage. 27 28 29 30 The plaintiffs filed suit for damages against unknown 31 defendants and served State Farm with process. State Farm answered 32 the complaint and subsequently filed a motion for summary judgment, 33 claiming there was no material issue of disputed fact. The trial 34 court granted the motion and the Court of Appeals affirmed. 35 36 37 38

I I 39 40 The issue to be decided is whether the uninsured motorist 41-4-

insurance carrier is entitled to summary judgment. This is a 1 question of law, and there is no presumption in favor of the trial 2 court’s decision. Rule 56.03, Tennessee Rules of Civil Procedure, 3 provides, in pertinent part: 4 5 The [summary] judgment sought shall be rendered 6 forthwith if the pleadings, depositions, answers 7 to interrogatories, and admissions on file, 8 together with the affidavits, if any, show that 9 there is no genuine issue as to any material fact 10 and that the moving party is entitled to a 11 judgment as a matter of law. 12 13 14 A motion for summary judgment should be granted only where 15 the movant has demonstrated that there is no disputed material fact 16 to be resolved and the moving party, therefore, is entitled to 17 judgment as a matter of law. When there is a genuine dispute 18 regarding any material fact or the conclusions or inferences to be 19 drawn from the facts, summary judgment does not lie. Summary 20 judgment is not a substitute for the trial of issues of fact. 21 Determinations of credibility, the weight to be given evidence, and 22 the inferences to be drawn from facts proven are jury functions. 23 When ruling on a motion for summary judgment, the court must take the 24 strongest legitimate view of the evidence in favor of the non-moving 25 party, allow all reasonable inferences in favor of that party, and 26 disregard all opposing evidence. The evidence of the non-movant is 27 taken as true and all reasonable inferences in the non-movant’s favor 28 will be allowed. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). Summary 29 judgment is not a disfavored procedural device and may be used to 30 conclude any civil case, including negligence cases, that can be and 311(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.

-5- should be resolved on legal issues alone, Mansfield v. Colonial 1 Freight Systems, 862 S.W.2d 527 (Tenn. Ct. App. 1993); but, as a 2 general rule, negligence cases are not amenable to disposition on 3 summary judgment. McClenahan v. Cooley, 806 S.W.2d 767, 775-76 4 (Tenn. 1991); Keene v. Cracker Barrel Old Country Store, Inc., 853 5 S.W.2d 501, 502-503 (Tenn. Ct. App. 1992). 6 7

III 8 9 This case is controlled by Tenn. Code Ann. § 56-7-1201(e) 10 (1994).1In order to prevail on a claim for uninsured motorist 11 benefits, the insured must meet the requirements of subsections 1(A) 12 or 1(B) and (2) and (3). State Farm does not deny that Mr. and Mrs. 13 Fruge have complied with subsections (2) and (3). The plaintiffs do 14 not claim that their vehicle experienced actual physical contact with 15-6-

the vehicle parked on the highway. Consequently, the case turns on 1 the provisions of subsection (B): “The existence of such unknown 2 motorist is established by clear and convincing evidence, other than 3 any evidence provided by occupants in the insured vehicle.” Since, 4 for the purposes of subsection (B), the plaintiffs cannot rely upon 5 their own testimony, the statements contained in Officer Rutherford’s 6 affidavit are determinative. 7 8 Officer Rutherford, of course, did not witness the 9 accident. However, in the course of his investigation, he did 10 observe evidence of the collision, including the location where it 11 occurred, the position and condition of the plaintiffs’ vehicle and 12 the presence of other damaged vehicles at that location. Officer 13 Rutherford saw, upon his arrival at the scene approximately 30 14 minutes after the accident occurred, a brown Ford Thunderbird 15 automobile parked in the plaintiffs’ proper traffic lane. He stated 16 that he was unable to ascertain the identity of the owner or operator 17 of that parked vehicle. 18 19 The Court of Appeals held that Officer Rutherford’s 20 testimony was not sufficient to defeat the motion for summary 21 judgment. That court found that Officer Rutherford’s testimony does 22 not prove by clear and convincing evidence the existence of an 23 abandoned automobile that caused the plaintiffs’ damages. According 24 to that court’s interpretation of the statute, the insured must prove 25 by clear and convincing evidence, not produced by the occupants of 26 the vehicle, the existence of the vehicle and also that the vehicle 27-7-

caused the injuries. The court stated that under Rule 602, Tennessee 1 Rules of Evidence, Officer Rutherford’s testimony was not admissible 2 on the issue of causation because he did not witness the accident. 3 The court concluded there was no proof of causation. 4 5 The decision by the Court of Appeals puts into perspective 6 for analysis the evidence necessary to defeat the insurer’s motion 7 for summary judgment in an action for uninsured motorist benefits. 8 Prior to the 1989 amendment to Tenn. Code Ann. § 56-7-1201, there 9 could be no recovery unless there was actual physical contact between 10 the uninsured motorist’s vehicle and the insured’s vehicle. See 11

e.g., Hoyle v. Carroll, 646 S.W.2d 161 (Tenn. 1983). The requirement 12 of physical contact with the vehicle operated by the unknown motorist 13 prohibited recovery in cases where the unknown motorist caused the 14 accident but there was no physical contact between the vehicles. 15 Subsection (e)(1)(B), enacted in 1989, allows recovery in cases 16 where, for example, the insured is forced off the road by an unknown 17 motorist without physically striking the insured’s vehicle. The high 18 standard of proof required by the amendment, clear and convincing 19 evidence produced by witnesses other than the occupants, obviously 20 was intended by the legislature as a safeguard against bogus claims 21 arising from one-vehicle accidents. Cf. id.at 162. 22 23 Even though the statute is subject to more than one 24 possible interpretation, it appears that the requirements of 25 subsection (B) apply only to the existenceof the unknown motorist. 26 Prior to the amendment, there was no requirement in the statute that 27-8-

the conditions essential for coverage be proved by more than a 1 preponderance of the evidence. Generally, an insurance claim can be 2 proven by a preponderance of the evidence. 3 4 The burden of proof is generally upon a 5 plaintiff to establish a case under a policy of 6 insurance. The plaintiff must prove all material 7 allegations of the complaint by a fair 8 preponderance of the evidence, and the insurer 9 need not offer any testimony in order to complain 10 of the insufficiency of the evidence to support a 11 judgment against it. 12 13 14 15 21 John Alan Appleman & Jean Appleman, Insurance Law and Practice§ 16 17 12091 (1980). So, in the absence of a statutory provision, proof by 18 a preponderance of the evidence is sufficient. In addition, analysis 19 of the language of the statute leads to the same conclusion. 20 Causation is not mentioned in subsection (B). The only reference in 21 subsection (B) to another portion of the statute is in the phrase 22 “such unknown motorist,” which refers to that portion of section (e) 23 which defines unknown motorist as “the owner or operator of any motor 24 vehicle which causes bodily injury or property damage to the 25 insured.” The clause “which causes bodily injury or property damage” 26 only identifies the owner or operator. Additional language would be 27 necessary to indicate clearly that causation, as well as existence, 28 must be proven by clear and convincing evidence. Since the 29 requirement of subsection (B), clear and convincing evidence other 30 than evidence provided by occupants in the insured vehicle, applies 31 only to the existence of the unknown motorist, the other essential 32 elements of the claim, including causation, may be established by the 33 preponderance of the evidence. Also, evidence produced by the 342The “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).

-9- occupants of the vehicle is not inadmissible as to those elements. 1 2 The next question is whether the evidence presents issues 3 of disputed fact. As stated above, summary judgment is appropriate 4 where there is no disputed material fact. The evidence before the 5 Court presents two issues of disputed material fact, the existence of 6 the unknown motorist and the cause of the plaintiffs’ accident. 7 Officer Rutherford’s testimony is probative of the existence of a 8 motor vehicle the owner and operator of which are unknown. A jury 9 could find that such evidence is clear and convincing.2The 10 testimony of Officer Rutherford and the plaintiffs is probative of 11 the fact that the parked vehicle was the cause of the accident. On 12 summary judgment motion, the non-moving party is not required to 13 present conclusive evidence of all the essential elements, only 14 material evidence on which a jury could find the facts; the weight to 15 be given evidence is the exclusive prerogative of the jury. A jury 16 could find on the evidence in the record and on the reasonable 17 inferences that could be drawn therefrom that an unknown motorist 18 existed and also that the unknown motorist caused the accident. 19 20 State Farm likens the parked vehicle in this case to the 21 ladder lying on the travelled portion of an interstate highway in 22-10-

Bruno v. Blankenship, 876 S.W.2d 294 (Tenn. Ct. App. 1992). In that 1 case, the Court of Appeals sustained summary judgment for the insurer 2 because it found no evidence tracing the ladder to a motorist. 3 4 The case before the Court is different because it involves 5 a motor vehicle, and the statute imposes liability on the ownership 6 and operation of motor vehicles. The presence of an unlighted motor 7 vehicle on the travelled portion of a busy highway at night is 8 certain evidence of negligence, even if it was dropped there by an 9 alien spacecraft. That vehicle was owned by someone, and that 10 someone is an unknown motorist within the meaning of the statute. 11 Whether that vehicle was present when Mr. Fruge lost control of his 12 vehicle and whether it was the cause of the plaintiffs’ accident are 13 fact issues for the jury. 14 15

I V 16 17 The judgment of the Court of Appeals and the trial court 18 are reversed, and the case is remanded to the trial court for further 19 proceedings. Costs are taxed to State Farm Insurance Company. 20 21

_______________________________ 22 Reid, J. 23 24 Concur: 25 26 Anderson, C.J., Drowota, Birch, 27 and Holder, JJ. 28 29