IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 4, 2008 Session

RAYMOND COX and ELAINE COX v. TENNESSEE FARMERS MUTUAL

INSURANCE COMPANY

Direct Appeal from the Chancery Court for Campbell County

No. 15,389 Hon. Billy Joe White, Chancellor

No. E2007-00590-COA-R3-CV - FILED FEBRUARY 9, 2009 

The Plaintiffs sued defendant insurance company alleging breach of the insurance policy between

the parties. The Trial Court granted partial summary judgment to defendant on the contents

coverage on plaintiffs’ home destroyed by fire. The judgment was granted on the grounds that the

plaintiffs did not file a proper proof of loss of the contents within the time frame required by the

policy, and that defendant was prejudiced thereby. The partial summary judgment is the principal

issue on appeal and we affirm the Judgment of the Trial Court.

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

HERSCHEL PICKENS FRANKS,P.J., delivered the opinion of the Court, in whichCHARLES D.SUSANO,

JR., J., and D. MICHAEL SWINEY, J., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for appellants, Raymond and Elaine Cox.

Michael R. Campbell and Kathryn M. Russell, Chattanooga, Tennessee, for appellee, Tennessee

Farmers Mutual Insurance Company.

OPINION

Plaintiffs sued Tennessee Farmers Mutual InsuranceCompany (Tennessee Farmers)

for breach of insurance contract, violation of the Tennessee Consumer Protection Act, and

constructive fraud and bad faith. Plaintiffs’ complaint avers that on or about May 23, 2000 the

plaintiffs’ home was damaged by an accidental fire causing a loss ofthe house and contents, and that

Tennessee Farmers provided coverage to them for loss caused by fire to the dwelling, other
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structures, personal property, and loss sustained for debris removal and damage to landscaping, and

that Tennessee Farmers breached the contract of insurance by failing, in bad faith, to pay plaintiffs’

claims. Tennessee Farmers answered and alleged that plaintiffs had breached the contract of

insurance by failing to comply with the provisions of the contract in their making a claim for fire loss

under the policy. 

Numerous motions and further pleadings were filed and acted upon by the Trial

Judge, which are not an issue on appeal.

Tennessee Farmers motion for partial summary judgment under Coverage C of the

policy relating to plaintiffs’ contents claim was heard by the Trial Judge on December 6, 2005. The

Trial Court granted defendant’s motion for partial summary judgment on a finding there were no

material facts in dispute, and that defendant was entitled to judgment as a matter of law. The Court

denied plaintiffs’ claim for contents coverage. The Court explained that plaintiffs did not file their

completed proof of loss until more than seven months after they filed their incomplete proof of loss

form in July 2002, and more than nine months after the fire itself, and that there was no excuse for

this delay. The Trial Court granted plaintiffs an interlocutory appeal which was not perfected by

plaintiffs. The Trial Court tried the remaining issues and based upon the evidence presented at trial

the Trial Court held in its final judgment entered on February 12, 2007, that plaintiffs were entitled

to recover $18,375.00 for damages to landscaping, $15,000.00 for debris removal, $2,000.00 for

damages to the swimming pool, and $27,079 for loss of the dwelling under Coverage A and

$5,686.63 in prejudgment interest. The final judgment is not raised as an issue on appeal, and the

issue on appeal is the propriety ofthe partial summaryjudgment granted onCoverageC of plaintiffs’

policy.

A certified copy of the policy was filed and parts of the policy pertinent to this appeal

are as follows:

Coverage C - Personal Property

What Personal Property is Covered

We cover:

1. Personal property owned or used by an insured anywhere in the world.

REPORTING A CLAIM

DUTIES OF PERSON OR ENTITY SEEKING

COVERAGE

FAILURE TO COMPLY WITH THESE NOTICE AND DUTY

REQUIREMENTS MAY RESULT IN DENIAL OF COVERAGE UNDER

THIS POLICY

Duty to Cooperate with Us
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Person and entities seeking coverage under this policy must:

1. cooperate with us and anyone we name in the investigation, settlement, or

defense of any claim or suit; and 

* * * *

7. make a list of all damaged . . . property showing in detail the quantity,

purchase price, date and place of acquisition, actual cash value, replacement

cost, and amount of loss claimed and attach to such list all bills, receipts, and

related documents that substantiate the figures in the list; and

8. send to us within 60 days after loss the list set forth in 7 above and a proof of

loss signed and sworn to by a person or entity seeking coverage . . . . 

In the motion for partial summary judgment, Tennessee Farmers filed affidavits and

supporting documents which established that plaintiffsinitially submitted proof of loss within sixty

days of the loss, but the proof of loss was incomplete and contained no information about the

inventory of personal contents loss under coverage C of the policy. Without an itemized list of

personal property contents, Tennessee Farmers represented that it was unable to inspect the fire site

to determine whether the claimed contents were in the dwelling at the time of the fire. Tennessee

Farmers rejected the initial proof of loss, and returned the incomplete proof of loss to plaintiffs by

letter on July 24, 2000, from Mr. Campbell to Mr. Cox which advised that the proof of loss was

incomplete and unacceptable, and the letter included instructions providing the information that

needed to be included in the proof of loss. The letter instructed plaintiffs to complete the proof of

loss, have it notarized, and return to the insurer and admonished that “no exceptions will be

considered in your claim” and that “if the conditions of your insurance contract are not met, your

claim could be put in jeopardy.” 

 

The Coxes submitted a completed sworn proof of loss to Tennessee Farmers that

included a claim for loss of personal contents under Coverage C on February 22, 2001, nine months

after the fire loss. A seventy-two page inventory of contents was attached to the proof of loss, and

another affidavit by Tennessee Farmers explained the consequence of the delay in completing the

proof of loss as follows: “At this point [February 22, 2001] there was no way for Tennessee Farmers

to inspect the site of the fire loss to determine whether the personal property/contents claimed to

have been destroyed were in the dwelling prior to the fire.” Plaintiffs submitted the affidavit of

Raymond Cox with its response to the motionsfor summary judgment, asto the motion on Coverage

C. The affidavit fails to state that the affidavit is made on the personal knowledge of Mr. Cox. See

Tenn. R. Civ. P. 56.06. The facts set out in the affidavit material to the Coverage C issue are that

Mr. Cox stated that he cooperated as fully as possible to expedite payment of his claims, including

signing documents allowing Tennessee Farmers to conduct an investigation and authorizing the

insurer to conduct scheduled and escorted inspections of the premises. He did not state when he

performed these activities, but that he made demand for payment of his claims by “my sworn proof
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of loss and many oral demands within 90 days of my loss . . . .” 

Regarding the proof of loss, Mr. Cox stated the following: 

My first proof of loss I provided to the defendant was returned to me without

explanation except that it was not complete. I provided the defendant a supplement

to my original proof of loss after receiving a complete copy of my policy, which was

necessary to accurately determine my content coverage and how to correctly fill out

the forms. I was directed to give the supplemented proof of loss to the defendant’s

claim representative who again would not receive it. Further, the defendant’s agent

assured my they would pay and that I need not file suit.

Mr. Cox did not state in his affidavit when he produced the second proof of claim.

Plaintiffs attached numerous documents to their “Plaintiffs’ Response to Defendant’s Motions for

Partial Summary Judgment.” However, the record reveals plaintiffs failed to put these documents

properly before the Trial Court. Tenn. R. Civ. P. 56.06 requires that supporting and opposing

affidavits shall set forth facts as would be admissible in evidence. The documents plaintiffs sought

to use to support their response were all hearsay and they were not authenticated and made

admissible under the Tennessee Rules of Evidence. See Price v. Becker, 821, S. W. 2d 597, 598

(Tenn. Ct. App. 1991). Both parties raise issues on appeal. The issues presented on appeal are:

A. Does the Court of Appeals have jurisdiction to review and consider the grant

of summary judgment regarding plaintiffs’ claim for contents under C

Coverage when plaintiffs’ notice of appeal states that the appeal is of the final

judgment entered on February 12, 2007 and does not state that the partial

summary judgment entered on January 18, 2006 is appealed? 

B. Did the Trial Court err when it granted defendant’s motion for partial

summary judgment on plaintiffs’ claim for contents under C Coverage

because plaintiffs failed to submit a proof of loss more than seven months

after they were provided with the proof of loss form? 

Summary judgment is appropriate only when the moving party demonstrates that

there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). If the moving party

makes a properly supported motion, the burden of production then shifts to the nonmoving party to

show that a genuine issue of material fact exists to be resolved by the trier of fact. Byrd, 847 S.W.2d

at 215, Staples v. CBL & Assoc., Inc. 15 SW3d 83, 89 (Tenn. Ct. App. 2000). This Court reviews

a summary judgment motion de novo, as a question of law without a presumption of correctness.

Finister v. Humboldt General Hosp., Inc., 970 S. W. 2d 435, 437 (Tenn. 1998), and the evidence and
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all reasonable inferences are viewed in the light most favorable to the nonmoving party. Byrd, 847

S. W. 2d at 210-211. 

The first issue for consideration is Tennessee Farmers’ contention that the Court of

Appeals does not have jurisdiction over this appeal because the notice of appeal filed by

plaintiffs/appellants did not specifically designate the partial summary judgment regarding Coverage

C entered by the Trial Court. 

Tennessee Farmers’ argues that “[i]n order to obtain appellate review, the appellant

must specify in the Notice of Appeal the Judgment or Order from which relief is sought.” In support

of this contention, Tennessee Farmers relies on Tenn. R. App. P. 3 (f); Hall v. Hall, 772 S.W.2d 432,

435 (Tenn. Ct. App. 1989); and several unreported cases. Appellants argue the notice of appeal

encompasses all of the orders of the Trial Court despite the fact that the notice only designated the

final judgment, and additionally urged the Court to exercise leniency regarding their failure to

designate the January 18, 2006 order granting partial summary judgment in favor of Tennessee

Farmers because they filed the notice pro se. 

When considering this issue this Court has focused on whether the “notice function”

of Tenn. R. App. P. 3(f) has been served, to determine whether the scope of review must be limited

to the order designated in the notice of appeal. In Thompson v. Logan, No. M2005-02379-COA-R3-

CV, 2007 WL 2405130 (Tenn. Ct. App. Aug. 23, 2007), Judge Cottrell conducted a thorough review

of the Tennessee case law on the application of Tenn. R. App. P. 3(f) that is instructive. In that case

the trial court entered an order on the merits of the case and later entered an order denying the

appellants' motion to alter or amend. Appellants filed a notice of appeal on September 23, 2005 that

designated the June 20, 2005 and August 29, 2005 orders by date and substance. The appeal was

premature, however, as a motion for sanctions was still before the trial court at the time the notice

was filed. The trial court entered an order in regard to the motion for sanctions on December 12,

2005. Thompson, at *9. The appellants neither amended the notice of appeal nor did they file

another notice of appeal that designated the December 12, 2005 order as one of the orders being

appealed. They did, however, raise the December 12, 2005 order as an issue on appeal in their brief

along with the other orders. 

The Thompson Court began its analysis withTennessee Rules of Appellate Procedure

Rule 3(f) that states: 

The notice of appeal shall specify the party or parties taking the appeal, ... shall

designate the judgment from which relief is sought, and shall name the court to

which the appeal is taken. An appeal shall not be dismissed for informality of form

or title of the notice of appeal. 

The Thompson Court referenced the Advisory Committee Comments to Rule 3(f)
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that states: 

This subdivision specifies the content of the notice of appeal. The purpose of the

notice of appeal is simply to declare in a formal way an intention to appeal. As long

as this purpose is met, it is irrelevant that the paper filed is deficient in some other

respect. Similarly, the notice of appeal plays no part in defining the scope of

appellate review. Scope of review is treated in rule 13. This subdivision read in

conjunction with rule 13(a) permits any question of law to be brought up for review

as long as any party formally declares an intention to appeal in timely fashion. 

The Court interpreted the Comments to Rule 3(f) to suggest that compliance with that

provision should be determined under a broad interpretation that focuses on intent and noted that,

as the commentary indicates, Rule 13 often comes into play in the Court’s consideration of the

efficacy of notices of appeal. Rule 13(a) governs the scope of review on appeal and provides that

“any question of law may be brought up for review and relief by any party.” Tenn. R. App. P. 13(a).

The Court then consulted the Advisory Committee Comment to Rule 13(a) that states:

This subdivision rejects use of the notice of appeal as a review-limiting device.

In federal practice the notice of appeal has limited review in two principal ways.

Some courts have limited the questions an appellant may urge on review to those

affecting the portion of the judgment specified in the notice of appeal. However,

since the principal utility of the notice of appeal is simply to indicate a party's

intention to take an appeal, this limitation seems undesirable. The federal courts have

also limited the issues an appellee may raise on appeal in the absence of the

appellee's own notice of appeal. Here again, since neither the issues presented for

review nor the arguments in support of those issues are set forth in the notice of

appeal, there seems to be no good reason for so limiting the questions an appellee

may urge on review. The result of eliminating any requirement that an appellee

file the appellee's own notice of appeal is that once any party files a notice of

appeal the appellate court may consider the case as a whole. (emphasis added).

The Court then reviewed multiple cases where the Court of Appeals had considered

questions regarding the sufficiency of a notice of appeal and observed that most of the cases

indicated either a strict application of Rule 3(f) or else an approach declining to use that rule as an

issue-limiting device and concentrating instead on the purpose of the notice of appeal. Thompson,

*12. 

The Thompson Court, held that the appellate court could consider issues contained

in orders or judgments that were not specifically designated in the notice of appeal, and declined to

interpret Tenn. R. App. P. 3(f) as an issue-limiting device. Cases relied on by the Thompson Court
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that are most factually similar to the case before us are Gliddon v. Glidden, No. 86-320-II, 1987 WL

9452 at *1-2 (Tenn. Ct. App. Apr. 16, 1987); and J.W.G. v, T.L.H.G., No. M2002-02656-COA-R3-

JV, 2003 WL 22794537 at *3 (Tenn. Ct. App. Nov. 25, 2003). 

Tennessee Farmers cites Grigsby v. Univ. Tenn. Med. Ctr. , No. E2005-010199-COAR3-CV, 2006 WL 408053 (Tenn. Ct. App. Feb. 22, 2006) and Goad v. Pasipanodya, No. 01A02-

9509-CV-00426 1997 WL 749462 at *2 (Tenn. Ct. App. Dec. 5, 1997) to support its contention that

Rule 3 (f) should be narrowly construed. These cases are easily distinguishable from this case, as

Thompson points out, because both cases involved separate orders, each immediately appealable,

dismissing independent defendants, and the holding of each was about the timing of the filing of the

notice of appeal and not about the content of the notice of appeal. Thompson 2007 WL 2405130 at

* 15 - 16. We conclude this issue is without merit and rely on the Thompson case’s analysis.

The next issue is the propriety of the summary judgment on Coverage C. The Trial

Court in granting partial summary judgment stated that plaintiffs did not file their completed proof

of loss until more than seven months after the submission of the proof of loss form to them by

Tennessee Farmers in July 2000 and more than nine months after the fire. The Court found that the

record contained no excuse for this delay, and granted the judgment.

Plaintiffs argue the judgment should be reversed because they had raised issues of

material fact in their response to Tennessee Farmers’ statement of material facts not in dispute with

a document styled “Plaintiffs’ Response to Defendant’s Motion for Partial Summary Judgment and

Plaintiffs’ Motion to Revise the Court’s Previous Rulings Pursuant to Rule 54.02" and a

“Supplemental Memorandum in Opposition to Defendant’s Motion for Partial Summary Judgment

[Under] Coverage C”. Plaintiffs do not cite to or rely on their response to Tennessee Farmers’

statement of material facts not in dispute that they filed in December 2005 along with the

supplemental response to defendant’s motion in their brief. Plaintiffs claim that the documents they

do rely on identified papers and statements that contradicted the facts set forth in Tennessee Farmers’

statement of material facts not in dispute, which made summary judgment inappropriate. 

Tennessee Farmers argue that plaintiffs’ responses to its statement of material fact

not in dispute were improper and should not be considered. The Trial Court did not accept plaintiffs’

first attempt to respond to Tennessee Farmers’ statement of material facts not in dispute or its second

response as it held there were no material facts in dispute. We conclude that the second response was

not sufficient to met the requirements of Tenn. R. Civ. P. 56.03 as it responded to fourteen facts

when defendant had only set forth nine material facts. The earlier response to defendant’s statement

of material facts set forth in the document entitled “Plaintiffs’ Response to Defendant’s Motion for

Partial Summary Judgment and Plaintiffs’ Motion to Revise the Court’s Previous Rulings Pursuant

to Rule 54.02" has two deficiencies. The first is that none of the documents attached to that

response would be admissible in evidence as required by Tenn. R. Civ. Pro. 56.06 as they are all

hearsay and were not authenticated by Mr. Cox or anyone else by affidavit. Second, the response
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filed in 2003 was superceded by plaintiffs’ December 2005 response to defendant’s statement of

material facts. The December response stated that only two of defendant’s nine stated material facts

were disputed. The remaining seven material facts were undisputed. 

Accordingly, both responses to defendant’s statement of material fact are problematic

and it was within the Trial Court’s discretion not to consider these responses. The purpose of the

requirements of Tenn. R. Civ. P. 56.03 is to “assist the Court in focusing on the crucial portions of

the record” in determining whether there is a genuine issue requiring a trial on the merits. See

Advisory Committee Comment to Tenn. R. Civ. P. 56.03. We have held that a nonmoving party's

failure to comply with Rule 56.03 may result in the trial court's refusal to consider the factual

contentions of the nonmoving party even though such facts could be ascertained from the record.

Owens v. Bristol Motor Speedway, Inc. 77 S.W.3d 771, 774 (Tenn. Ct. App.,2001)(citations

omitted). 

A trial court, acting within its discretion, may waive the requirements of the Rule

56.03 under certain circumstances. Owens at 774 - 775. There is no indication here that the Trial

Court considered or did not address the issue of waiver in its order. The Record shows the Trial

Court held there were no issues of material fact, and based on the poor quality and confusing nature

of plaintiffs’ responses to defendant’s statement of material facts and considering the discretionary

nature of the decision in the Trial Court’s discount of plaintiffs’ responses as they did not comport

with Rule 56.03, it was not error. 

Assuming arguendo that the Court considered responses filed in December 2005,

the response was not sufficient to raise issues of material fact. The issues central to the Court's

evaluation of a motion for summary judgment are whether a factual dispute exists, whether the

disputed fact is material to the outcome of the case, and whether the disputed fact creates a genuine

issue for trial. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). Plaintiffs disputed only two of the

material facts, numbers 2 and 9, set forth by defendant. Plaintiffs’ response to number 2 states:

“[d]isputed that Plaintiffs failed to provide timely authorization” because defendant had stated in

an earlier filed document that it had received both authorizations and permission on May 30, 2000,

and June 1, 2000, respectively.” This response is apparently, but not certainly, relative to defendant’s

statement of material facts not in dispute number 2 that the Coxes had failed to provide immediate

authorizations to Tennessee Farmers necessary to its investigation of their financial condition and

background and had failed and refused to provide Tennessee Farmer access to the loss site for the

purposes of conducting a cause and origin investigation.” But most importantly, the fact that the

Coxes may or maynot have cooperated with Tennessee Farmers’ cause and origin investigation soon

after the fire is not material to the issues raised by the motion for summary judgment on Coverage

C. Only the issue of the delay in providing the proof of loss is material to this motion. 

Plaintiffs also apparently disputed defendant’s statement regarding when Tennessee

Farmers was able to inspect the site of the fire loss to determine if the contents claimed to have been
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destroyed were in the dwelling prior to the fire. Plaintiffs’ exact response number 9 is: “Disputed.

Inspection of the fire scene was undertaken by the Defendant on June 8, 2000" as stated by

Tennessee Farmers’ in an earlier filed document. This response is deceptive because Tennessee

Farmers was allowed by plaintiffs to inspect the premises on June 8, 2000 as part of its cause and

origin investigation. Paragraph 9 of defendant’s statement of material facts is that it could not inspect

for evidence that the contents claimed were present before the fire because it did not receive the

proof of loss of contents until nine months after the fire. The cause and origin investigation on June

8 and the contents investigation that never occurred were not the same. Mr. Smith established in th

his affidavit that the content investigation could not occur until after the proof of claim of contents

loss was provided because he needed to look for evidence that the items claimed had been in the

dwelling at the time of the fire. Without a list of the contents claimed to be damaged he would not

know what to look for. Accordingly, plaintiffs did not create a genuine issue of material fact

regarding the investigation on the contents claim under Coverage C and the Trial Court correctly

found that the responses did not raise material issues of fact in dispute. 

Moreover, the Trial Court should not have considered the nine exhibits attached to

the “Supplemental Memorandum in Opposition to Defendant’s Motion for Partial Summary

Judgment Coverage C” as plaintiffs/appellants urge this Court to do. The documents consisted of

(1) a letter from Vickie Knight to Mr. Cox; a November 14, 2000 letter from Mr. Cox to Tennessee

Farmers; a November 13, 2000 letter from Mr. Knolton to Mr. Cox; a September 12, 2000 letter

from Mr. Knolton to Mr. Judson; a January 5, 2001 letter from Mr. Knolton to Mr. Cox; an April

3, 2001 letter from Mr. Knolton to Mr. Judson; an April 27, 2001 letter from Mr. Knolton to Mr.

Judson; a May 8, 2001 letter from Mr. Knolton to Mr. Judson; and a March 8, 2001 letter from Mr.

Knolton to Mr. and Mrs. Cox.

 

These documents, like the documents attached to “Plaintiffs’ Response to

Defendant’s Motion for Partial Summary Judgment and Plaintiffs’ Motion to Revise the Court’s

Previous Rulings Pursuant to Rule 54.02" are not admissible in evidence as they have not been

authenticated. Tenn. R. Civ. P. Rule 56.06 provides:

Supporting and opposing affidavits shall be made on personal knowledge, such facts

as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein. Sworn or certified copies of all

papers or parts thereof referred to in an affidavit shall be attached thereto or served

therewith. . . .

Plaintiffs merely attached these nine documents to their memorandum, and did not

have the documents authenticated by affidavit. See Dalton v. Dale, No. M2002-01205-COA-R3-

CV, 2003 WL 726669 (Tenn. Ct. App. Mar. 4, 2003). See also Price v. Becker, 812 S. W. 2d 597,

598 (Tenn. Ct. App. 1991).
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The subject policy of insurance requires the insured to provide Tennessee Farmers

a proof of loss within sixty days of the loss in the cooperation section of the policy. It is undisputed

that plaintiffs did not provide a complete proof of loss for contents under coverage C until nine

months after the fire and that coverage for loss of contents was denied due to plaintiffs’ tardiness.

The only excuse for delay offered by plaintiffs is that Tennessee Farmers did not send a certified

copy of the policy to plaintiffs until more than six months after the fire. The plaintiffs do not explain

why a certified copy of the policy was necessary before they could proceed with preparing a proof

of loss or why the copy of the policy Ms. Knight sent to plaintiffs in July 2000 did not suffice. In

their last analysis, plaintiffs argue Tennessee Farmers, by its actions, waived the sixty day provision

in the policy and is estopped from relying on the sixty day provision to justify denial of coverage

under Coverage C. The insured’s failure to produce a sworn proof of loss within the time period

required in the policy is fatal to the claim unless the conditions are waived by the insured. Central

National Ins. Co. Of Omaha v. Mfr’s. Acceptance Co., 544 S. W. 2d 362, 364 (Tenn. 1976). The

Supreme Court in that case found that the plaintiff, who had failed to file a proof of loss as required

by the policy of insurance, had “breached material conditions of the policy”. The Court explained:

[Plaintiff] has failed, without excuse, to file a sworn proof of loss and has refused to

respond to repeated requests of insurer that he make himself available to the

Company for discussion of the alleged loss. The policy clearly requires that he

perform these acts, and conditions the liability of the Company upon their

performance. The breach of such conditions, unless waived by the insurer, prevents

a recovery upon the insurance contract; and, there is no such waiver here. The filing

of the requisite proof of loss may obviate the necessity for giving notice of loss, but

the giving of notice of loss does notsatisfy the requirement that proof of loss be filed.

Central National, 544 SW2d at 364 (internal citations omitted). 

Tennessee Farmers relies on Scot v. Exchange Mut. Ins. Co., No. 86-45-11, 1986 WL

6276 (Tenn. Ct. App. Jun. 4, 1986)(aff’d 1987 WL 15298 (Tenn. Aug. 10, 1987), a factually similar

case to this case. In that case, the insurer argued that the delay in filing a proof of loss was

prejudicial to the insurer and continued this failure resulted in the forfeiture of plaintiffs’ right to

recover. This Court agreed and explained how the insurer was prejudiced by the late filing of the

proof of loss as follows: 

[T]he adjuster was not able to make . . . an appraisal of loss of personal property by

an examination of the remains. In order to make an intelligent examination and

verification of loss of personal property, it was necessary for him to have a list of the

property lost and its claimed value so that he might search the ruins for evidences of

the existence of such property, its value and its damage. Only plaintiff was in a

position to furnish such a list, and plaintiff delayed six months and one day. During
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such a period, in the ordinary course of events, the remains of personal property

would probably be so disturbed or altered by the vandals or curiosity seekers as to

seriously impair ability of defendant to verify the claim of plaintiff.

Scott at * 7. 

Here, Tennessee Farmers has shown through the affidavit of Mr. Smith, that it was

unable to assess whether the contents claimed in the late filed proof of loss were actually in the

dwelling at the time of fire as nine months had passed since the fire and plaintiffs did not properly

contest this statement by affidavit. However, plaintiffs argue that Tennessee Farmers waived the

sixty day proof of loss provision by its actions. They rely on Bush v. Exchange Mut. Ins. Co. 866

S.W.2d 575 (Tenn. App. 1993). While Bush certainly explains the rule that under certain

circumstances the actions of an insurer will constitute waiver of the cooperation provisions of a

policy of insurance, plaintiffs’ reliance on the nine documents that were attached to their

supplemental opposition to defendant’s motion for summary judgment as support for their contention

of waiver were not considered by the Trial Court, and as we held were not properly put before the

Trial Court and are not admissible in evidence. Here the plaintiffs failed to respond with proof to

create a genuine issue of material fact regarding the waiver of the policy provisions by Tennessee

Farmers. Accordingly, we affirm the partial summary judgment as to coverage found by the Trial

Judge. We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed

one-half to plaintiffs and one-half to defendant.

______________________________

HERSCHEL PICKENS FRANKS, P.J.