# FILED

March 8, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk ANGI E BROOKS , ) Plaintiff /Appella nt, )

) VS. ) Montgome ry Circuit ) No. C8-412 KIMBERL

Y J. QUAM DAVIS and, ) and GAY LE S CHA AL, ) Montgome ry Circuit Defend ants/Appe

llees, ) No. C8-557

) Consolidat

ed in Tria l Court. AND ) Appeal No. ) 01-A-01-9509-CV-00402. ERICA BROOKS, a

minor b/n/f ) ANGIE BROOKS,mother a nd natural ) guardian, ) Plaintiff s/Appella nts, )

) VS. ) ) KIMBERL

Y J. QUAM DAVIS and ) AMY SC HAA L, ) Defend ants/Appe

llees. ) IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE APPEAL FROM THE CI RCUIT COURT OF MONTGOMERY COUNTY AT CLARKSVI

LL E, TENNESSEE HONORABLE ROB ERT W. WEDEMEYER, JUDGE PAUL WELKER 101 South Third Street Clarksville, Tennessee 37040 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS Alan M. Sow ell GRA CE Y, R UTH , HO WA RD, TAT E & S OW ELL 150 Second Avenue , North Suite 201 Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPEL LEE ALL STATE INSURANCE COMPANY William R. Pigue William G. McCaskill, Jr. TAYLOR, PHI

LBI N, PIGUE, MARCHETTI & BENN

ETT One Union Street P.O. Box 198169 Nashville, Tennessee 37219-8169 ATTORNEY FOR DEFENDANT/APPEL LEE KIMB ER LY J . QU AM D AVIS MODIFI ED, AFFIRMED AN

D REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION BEN H. CANTRELL , JUDGE, CONCURS AND WILL IAM C. KOCH, JR., JUDGE, CONCURS IN SEPARATE OPIN ION.-2-

ANGI E BROOKS , ) Plaintiff /Appella nt, )

) VS. ) Montgome ry Circuit ) No. C8-412 KIMBERL

Y J. QUAM DAVIS and, ) and GAY LE S CHA AL, ) Montgome ry Circuit Defend ants/Appe

llees, ) No. C8-557

) Consolidat

ed in Tria l Court. AND ) Appeal No. ) 01-A-01-9509-CV-00402. ERICA BROOKS, a

minor b/n/f ) ANGIE BROOKS,mother a nd natural ) guardian, ) Plaintiff s/Appella nts, )

) VS. ) ) KIMBERL

Y J. QUAM DAVIS and ) AMY SC HAA L, ) Defend ants/Appe

llees. )

O P I N I O N
This appeal is from the dismissal of the separate, but consolidated, suits of a mother and daughter for their persona l injuries sustained while guest-passengers in a ve hicle owned by Gay le (Amy) Scha

ll and operated by

Kimberly J. Quam Davis (here after "Ms. Davis"). Allstate Insurance Company (hereafter "Allstate" ) was served with process as an uninsured motorist insurer.

Gayle (A my) Schall was dismissed by summary judgme

nt upon her uncontradicted af fi da vi t t ha t M s. Da vi s w as no t o pe ra ti ng th e s ub je ct ve hi cl e a s a ge nt of

Ga yle (A my) Schall. Th

is is not que stioned on

appeal.

On May 28, 1992, Alls tate a nswer ed adm itti ng $25, 000 un insu red mo toris t cove rage of plaintiffs, but denying

that either of the named defendants were uninsured.

On Sep tembe r 30, 1 992, M s. Dav is ans wered s tati ng: . . . Defe ndant adm

its that she

was driving the a

foresa id vehicle when she suddenly lost control of the vehicle, went off-3- the road and struck an embankment. Defenda nt denies she was negligent in any

way including

that she failed to maintain a due and proper look out ahead, that she was operating her vehicle at a speed which was excessive under the conditions, that she drove her vehicle in a willful and wanton disreg ard for the safety of pe

rsons or property , and denies that as a direct and proximate result of defendant's alleged negligence, the plaintiff Angie Brooks received se rious painful, disabling and permane nt bodily injuries.

On Oct ober 2 4, 199 4, th e Trial Court entere d jud gment s tati ng: This cause came on to be heard on the 18th day of October, 1994, bef ore the Co

urt and ju ry , to wit: Glo

ria Ry e, Carme lla Draa, Jod y B urkhart , Steve L

annom, Ho lli Daniel, Lou is Parham, Sandra Turner, Sherri Balthrop, Jannie James, Harriet Albright, James Hancock and David Trotter, upon the complain ts, answe rs of def endant K imberly J. Quam Davis, an d a ns we rs of

de fe nd an t A ll st at e In su ra nc e C om pa ny, pursuant to T.C.A. §56-7-1206, the amended answer of defendant Kimberly

J. Quam Davis allowed by the Court on defendant's motion to amend its answer to include the ". . . negligence of an unknown de fendant whose vehicle came over the center line and forced her of f of the road...", the testimony of witnesses heard in open court, a video deposition, and the entire record and from all of the proof the jury having

found the issues in favor of the plaintiffs, Angie Brooks and Er ica Brooks b/n/f Angie Brooks, against the unknown de fendant and Allstate I nsuranc e Company , assessed plaintif f's, Angie Brooks', damages a

t $25,000.00 for bodily injury , medical expenses a

nd found th

e unknown

defenda nt and Alls tate Insurance Company

100 percent negligent and the de fendant Kimberly J. Quam Davis zero perce nt negligent, and assessed plaintiff's, Erica Brooks' b/n/f Ang ie Brooks, damages at $10,000.00 for bodily injury , medical expenses and found the unknown defendant and Allstate I nsurance Company

100 percent negligent and de

fendant Kimberly

J. Quam Davis zero percen t negligent. It is therefore, orde

red adjudged and decreed that the plaintiff, Angie Brooks, have and recover of the unknown defendant and Allstate Insur ance Company, the

sum of $25,000.00 for bodily injury , medical expenses and loss of ea rn in g c ap ac it y fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y, and plaintiff, Erica Brooks b/n/f Angie B rooks, have and recover of the unknown defendant a nd Allstate Insurance Company, the sum of $10,000.00 for bodily injury, medical expenses and loss of earning capacity for which execution may issue if necessary

and that both causes of action are hereby dismissed a

gainst d efenda nt Kimber

ly J. Q uam Davis

.
On October 25, 1994, Allstate Insura nce Company moved the T rial Court to remove its name from the judgment on the grounds that the complaints fail to mention an unknown-4-

motorist and no process was issued against an unknown motorist as required by TCA §56-7- 1206(b).

On October 27, 1994, plaintiffs moved for a new trial on g rounds that the Trial Court erroneously a

llowed Ms. Davis to amend her answer at the close of plaintiffs' proof to assert the fault of an unknown driver and erroneously admitted evidence of the unknown driver.

On November 7, 1994, Allstate moved to alter or amend the judgme nt to delete the name of Allstate from the judgment for the rea sons already sta ted.

On February

24, 1995, Allstate filed an amended motion to alter or amend on the ground that no phy sical contact between the unknown vehicle and that of Ms. Davis and that the existence of the unknown motorist was not proven by clear and convincing evidence other than that furnished by the occupants of the Davis vehicle as required by T.C.A. Section 56-7-1201(e)(1)(B).

On May 11, 1995, the Tria l Court overruled the motion for new trial of plaintiffs and struck the name of

Allstate f rom the jud

gment.

On May 18, 1995, the Tr ial C ourt e ntered an amen ded ju dgment order s tati ng: . . . [T]he jury having found the issues in fa vor of the plaintiff s, Angie Brooks a nd Erica Brooks b /n/f Angie Brooks, agains t the unkno wn defe ndant ass essed pla

intiffs, A ngie Brooks', damages a

t $25,000.00 for bodily injury , medical expenses and found the unknown defendant 100 percent negligent and the defenda nt Kimberly J. Quam Davis zero percen t negligent, and a ssessed p laintiff s, Erica Brooks' b/n/f An gi e B ro ok s, da ma ge s a t $ 10 ,0 00 .0 0 f or bo di ly i nj ur y, medical expenses and found the unknown defendant 100 percent negligent and de

fendant Kimberly

J. Quam Davis zero percen t negligent. It is therefore orde

red, adjudged and decreed that the plaintiff, Angie Brooks, have and recover of the unknown defendant the sum of $25, 000.00 fo

r bodily injury , medica

l expensesand loss of ea rn in g c ap ac it y fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y,-5- and plaintiff, Erica Brooks b/n/f Angie B rooks, have and recover of the unknown defendant the sum of $10,000.00 f or bodily injury , medical expenses and loss of earning capacity for which execution may issue if nec essary a nd that both causes of act ion are her eby dis miss ed a

ga ins t de fendan

t Ki mbe rly J. Quam Dav

is.

The amended judgment omits the name of Allstate as reque sted in Allstate's motion.

From this judgment plaintiffs have perfected their appeal. Plaintiffs' brief presents no issues asrequired by

T.R.A.P. Rule 27(a) (4). How ever, pl aintiffs ' brief argue s that: I. An affirmative defense must be set forth in a defendant's answer or it is waived. II. The Trial Court erred in allowing the defe ndant to amend her answer to conform to the evidence

.
Plaintiff s first cite T.R.C.P. Rule 8.03 w hich req uires a p arty

defenda nt to state facts relied upon to constitute comparative fault or an avoidance or affirmative defense. Plaintiffs argue that an unpled affirmative de fense is waived. At the time the answers of Ms. Davis and Allstate were filed , Rule 8.03 did not include a requirement to affirma tively plead comparative negligence

of another person. This requirement was added on July 1, 1993.

The rec ord does not contain the "a mended a nswer of Kimberly

J. Quam Davis" mentioned in the judgment of the Trial Court which recites that the answe r included "the negligence of an unknown de fendant whose vehicle came over the c enter line and forced her off the road."

The tran script records tha t, on Octo ber 19, 1 994, bef

ore def endants p resented their evidence, plaintiffs moved to exclude any evidence of an unknown motorist because not pled; that, the Trial Judge orally stated: The rule on amending plea

dings to c onform to

the proof is to be liber ally construed. In

the depos ition of Kimberly J. Davis, which ha s been fi led with th e court o n Octobe

r 14th, fi led with the cler k and made

a part of File No. C8-557, Ms . Davis'-6- deposition was taken December 17, 1992. Mr. Welker, counsel for the p laintiff

, was pre sent, alo ng with tw o other a ttorney s, Mr . B at so n a nd Mr . M cC oy. On page 18, I

believe this is Mr. Welker asking the questions. It appears to be. Que stion -- pardon me. It starts on the bottom of page 17 line 25. Q. "All r ight. Ok ay . All right. Now, ju st in y our own w ords, tell me what happened, how this accident happened." A. "We were going down T iny Town Road. There

was another car over in my

lane, and I went over

to move -- you know, to miss it. And we went off in the ditch."

. . . . Now, this deposition indicates to me that the issue of another car being involv ed is cer

tainly not -- this

is not the f

irst time that the plaintiff has been aware of this. . . . But since

it's not a surprise , and the p laintiff has had a mple time to deal with the issue one way or the other, then I' m going -- assuming that she testifies similarly to how she did in her depositio n, then I 'm going to allo w the def endant to amend -- to amend the answer to conform to the proof in the case

. There were no special reque sts for instructions, but the Trial Court did instruct the jury as follow s:

In this case it is claimed that an unknown driver of another vehic le was at faul t in t he occu rrence in qu estio n. Eve n tho ugh that person has not appeared or offer ed evidence, it is necessary for you to deter

mine whether that person was at fault in the collision or the occurrence and determine the pe rcentage of fault, if any, c

hargeable to that person.

T.R.C.P. Rule

15.01 and

15.02 pro vide in pe

rtinent pa rt as foll ows: 15.01 Amendments. - A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading s is permit

ted and th e action has not been set fo

r trial, he may so amend it at any

time within

fifteen (15) day s after i

t is served. Otherwise a party may amend his pleading s only by written consent of the adverse party or by leave

of court; and leave shall be freely

given when justice so requires. . . . 15.02 Amendments to Conform to t he Evidence. - When issues not raised by the plea dings are tried by

express or implied co nsent of t

he parti es, they

shall be tr

eated in all respects as if they

had been raised in the pleadings. Such amendment of the pleadings as may be necessary

to cause them-7- to conform to the evidence and to raise these issues may be made upon motion of any par ty at any time, even after judgment; but failure so to amend does not affect the re sult of the trial of these issues. . . .
Wide discretion is vested in the Trial Judge in granting or ref using amendment at any stage of the proceeding s before final submission to the jury, a nd such discretion will not be disturbed unless abused. Womble v. W alker, 216 Tenn. 27, 390 S.W.2 d 208 (196 5); Daniels v. Talent, 212 Tenn. 447, 370 S.W. 2d 515 (19 63); Diversified Equities Inc. v. Warren, Tenn. App. 1976, 567 S.W.2d 171.

Although it would ha

ve been better p rocedur e to requ ire the d efenda nts to submit their amended answers in writing, the failure to do so does not alter the fact that the Trial Judge acted within the bounds of his discretion and committed no reversible error under the circumst ances.

Allstate presents the additional argument that plaintiffs are not entitled to recover on the uninsured motorist coverage because of failure to issue process against the unknown motorist or to prove the existence of the unknown motorist as required by the statute. Since Allstate's removal from the judgment has not been c hallenged on appeal, this argume nt appears to be moot, except that it calls attention to the fact that the Trial Court has rendered judgment against John Doe without issuance or service of a ny process to impose per sonal jurisdiction and judgment upon John Doe.

The statute, Section 56-7-1206, establishes a fictional unknown party for purposes of imposing liability upon the uninsured motorist insurer. The statute doe s not, and could not constitutionally, provide for the entry of a judgment which would be enforcea ble against an unknown party who ha

d no actual or constructive knowledge of the proceeding. Although, as a practical matter, the judgment ag ainst John Doe is worthless, the preservation of the-8-

integrity of

the judicial process requires that this Court remedy the situation by vacating the judgment against John Doe.

Accordingly , the judgment of the Trial Court is modified by vacating and deleting the judgment against John Doe and by taxing all Trial Court costs again the plaintiffs. As modified, the judg ment of the Trial Cour

t is affir med. Costs o f this app eal are taxed ag ainst plaintiff s and thei r surety . The ca

use is re manded f or further proc eeding s in confo rmity with this opinion.

Modified, Affirmed and Remanded.

_____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

________________________________________ BEN H. CA

NTREL L, JUDG E, CONCURS

WIL LI AM C. KOCH, JR., JUDGE, CONCURS IN SEPARATE OPI

NION.