### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Jul y 13, 200 5 S es sio n

R OB IN E. O. S. C R A ST ER v. TH R IF TY R EN T- A -C A R S Y ST EM , IN C

. , e t al.

Direc t Appeal from the Chancer y Court for K nox Coun ty No. 152025-2 Hon. Daryl F ansler, Chancellor

No. E2004-01948-COA- R3-CV - F ILED S EPTEMBER 29, 2005

The pa rties filed Motions for S u m m ar y J udg ments. The Trial Court gr anted de fenda nts’ Motion which stated de fenda nt was not a proper party and ins uranc e poli cy issued to plaintiff did not cover plaint if f’ s d a ma g e s. On app e a l, w e a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Cha nc e r y C our t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J
., delivere d the opinion of the court, in which D. M I CH A EL S WI NEY , J ., and S HAR ON G. LEE , J ., joined.

John O. Th re a dg ill , K no xvill e , T e nn e sse e , f or app e lla nts

.

Br ent R. Watson, Knox ville, Tennesse e, for appellee

.

OP IN ION

I n th is a c tio n, plaint if

f, a c iti zen of En g la nd , f

ile d a Complaint

a g a ins t T hrif

ty Re ntA-Car Sy stem, I nc., and othe rs, alleg ing that she enter ed into a rental ca r ag ree ment and insuranc e ag ree ment with defe ndants while on vac ation in the Unit ed S tates (in Ge org ia), a nd that afte r being involved in an ac cid en t in the renta l car while in Tenne ssee, de fenda nts failed to provide a ny ins ur a nc e c ov e ra g e . Sh e fu rthe r al le g e d th a t he r c omp a nio n, Al iso n B a ll, a lso e nte re d in to the sa me contra ctual re lationship with and throug h Thrifty
, and that Ba ll was driving the re ntal car when she neg lige ntly cause d an acc ident which resulted in se vere injuries to pla intiff. Plaintiff al l ege d t h at throug h Thrifty , she chose to purcha se liabilityinsurance throug h Empire Fire & Marine Insuranc e Compa ny , an d sup ple me nta l li abil ity ins ur a nc e thr ou g h Re lia nc e I ns ur a nc e Compa ny , a ndTh ri ft y acte d not only

as a c ar r ental ag ent, but also as an insurance a g ent.Plaintiff dismi ssed the other defe ndants pursuant to Tenn. R. Civ. P. 41.01. 1

-2- She fu rthe r a lle g e d b re a c h o f c on tr a c t, b a d f a ith
, a nd vio la tio ns of

the Ge or g ia

F a ir B us ine ss P ra c tic e s A c t, andthe Te nn e sse e Con su me r P ro te c tio n A c t. Furthe r, that Thr if ty wa s g uil ty of ne g lig e nt an d/o r fr a ud ule nt misr e pr e se ntatio n a ndind uc e me nt t o e nte r i nto the c on tr a c t du e to i ts misrepre sentations reg arding the insuranc e cove rag e. She attac hed th e re n tal ag ree ment and a purported c opy

of the supplementa l liabilit y insurance ag ree ment as exhibit s to the Complaint.

Thrifty answe red, a dmitti ng that plaintiff enter ed into a re ntal car ag ree ment, but that the ag ree ment was with T hrifty ’s licensee
, Courtesy Rentals, I nc, rathe r than Thrifty

. De fe n d ant denied or claimed no knowledg e of the other alleg ations in the Complaint, and asserted the defe nses of la c k o f j urisd ic tio n, imp ro pe r v e nu e , f a ilu re to s ta te a

c la im, a ndstatut e of

lim itatio ns

. 1

Plaintiff the n filed a Motion for Dec laratory J udg ment, asking the Court to construe the te rm s o f

t h e c o n tr a c ti n q u e s t i o n , a n d d e t e r m i n e w h o w e r e t h e p r o p e r p ar t i e s t o t h e C o n tr a c t,

a lon g wi th a

Mo tio n f or Part ia l Su mma

ry Judg me nt, a sk ing the Cou rt to r ule that de fe nd a nt w a s a party t o the contra ct in question, that the Court had jurisdiction, and that the c ontrac t require d defe ndant to indemnify

Ba ll and/or provide be nefits to plaintiff for he r injuries.

Th ri ft y fi le d a re sp on se to plaint if f’ s Mo tio n fo r P art ia l Su mma ry Judg me nt, a s w e ll as its own Motion for Summary J udg ment, and attac hed an A ffidavit of J ames Nelson, who stated that he wa s president of Courte sy Rentals, I nc., which is a Geor g ia cor

poration, and that the
tr a n s a c t i o n s b e t w e e n p l a i n t i f f a n d C o u r t e s y

o c c u rr e d i n G e o r g i a

. H e s t a t e d t h a tC ou rt e sy is a licensee of T h ri ft y , that Thrifty has no owne rship in the licensee . He state d that Thrifty allowed Courtesy to use its name and r eser vation sy stem in ex chang e for pay ment of a lice nse fe e.

He fu rthe r s ta te d th a t on J uly 10 , 200 0, Cou rt e sy e nte re d into a re nta l a g re e me nt w ith plaint if f, Al iso n B a ll, Pe te r Ho lli ng , John F e lst e a d, a nd Ruth Er le ma nn , bu t that Th ri ft y wa s no t a party to the ag ree ment. The re ntal ag ree ment was attached a s Ex hibits, which consisted of the re ntal
state me nt andthe se pa

ra te re nta l ja c ke t. N e lso n s ta te d th e renters wer e g ive n a c op y of bo th documents at the tim e the renta l statement wa s signe d, and that plaintiff initialed the portions of the

c on tr a c t ind ic a tin g that sh e a c c e pte d PDW (p hy sic a l da ma g e wa ive r) a ndSL I (s up ple me nta l li abil ity insurance ) but dec lined PAI (per sonal ac cident insuranc e).

He pointed out that the first par ag raph of the re ntal jacke t states that the ag ree ment is betwee n the re nter a nd an independe nt lice nsee of Thrifty , which is Courtesy , and he stated that Parag raph 10 of the renta l ja cket states that “SL I is subjec t to the other spec ific exclusions which are summarized on the separ ate SL I brochur e which is available at the re ntal counter ” Ne lson stated that
a true c o p y

o f th e b r o c h u r e w a s a tt a c h e d ( n o ti n g th a t th e te r ms “ SLI ” a n d “ SLP” ar e u s ed intercha ng eably ), and w as ava ilable at the time the r ental ag ree ment was sig ned.

Ne l s o n fu rt h er s t at ed t h at P ar agr ap h 1 0 (A )( 1 ) o f t h e r en t al j ac k et ex cl u d es co v er age for c laims made for

bodily injury if the cla im is m ade by an authorized rente r. Nelson stated that the-3-

br oc hu re s t a t e s t h a tb o d i l y i n j u r y t o t h e r e n t e r

i s n o tc o v e r e d
, a s d o e s t h e b u s i n e s s a u t o l i abil ity po lic y iss ue d b y Re lia nc e , w hic h is re fe re nc e d th e re in ( a ndthe e nd or se me nt p a g e wa s a tta c he d to h is statement). The r ental jac ket, states in par ag raph 10 that “if I have initialed that I

acc ept the optional SL I

at t h e beg inning of

the re ntal, I

am entitled to the following : A. Thrifty will protect Me a g a ins t th ir d- pa

rt y lia bil ity c la ims ari sin g out of

the us e or

op e ratio n o f the Car f

or (I ) b od ily injury or death of another

(excluding a ny

of My or Additional Re nter’s family members related by blood, marriag e or adoption residing with Me or them) and; (ii) Property damag e other

than to the

car .” Para g raph 10( B) does state that the SLI is “subjec t to the other spe cific e x clusions which ar e summarized on the separ ate SL I b ro ch u re whi ch is ava ilable at the r ental counte r.” The attache d br oc hu re state s th a t a ll lim itatio ns /e xclu sio ns are c on ta ine d in “ the B us ine ss Au to Pol ic y , th e B a sic Rental Contract a nd the Addendum.” The broc hure state s that “SL P” does not provide covera g e for

“ bo dil y inj ury ” or

“ pr op e rt y

da ma g e ” to the “ Re nte r” . T he e nd or se me nt p a g e of the bu sin e ss a

uto policy which wa s attache d, states that bodily injury does not apply

to any authorized driver

. Plaintiff filed a Response in Opposition to the Summary J udg ment and attac hed her own af fidavit, which stated that she and B all enter ed into a re n t al agr eeme nt and insuranc e

a g re e me nt wi th Th ri ft y , a nd pu rc ha se d su pp le me nta l lia bil ity ins ur a nc e a s pa

rt of t hat a g re e me nt. She s t at ed t h at at no time during the transa ction did any employ ee the re te ll them that they wer e conducting business with Courtesy
, an d n o d o cument placed or display ed at the c ounter let them know that t h ey we re dealing with any entity other than Thrifty . Plaintiff stated that she wa s not provided a ny additional information other than the renta l statement, and nothing else wa s prese nted or explained to them by

the employ ees.

Plaintiff then fil ed a Motion for Def ault, stating that defe ndants had failed to respond to p la int if f’ s Re qu e st f

or Ad mis sio ns wi thi n the re qu isi te 30 da y s, a ndthat su bs e qu e ntl y , it sh ou ld be de e me d a dmi tte d that plaint if f andB a ll e nte re d in to a

su pp le me nta l li abil ity

ins ur a nc e po lic y

wi th defe ndant, t hat pl aintiff was entitled to rec over from defe ndant on the pol icy
, and that def endant ha d knowing ly

withheld benef

its, had acte d in bad fa ith, and had made misrepre sentations reg arding the policy . Thrifty

then filed a

Counter-Complaint a lleg ing that para g raphs 9 a nd 10 of the re ntal jacke t state that plaintiffs as authorized renter s ag ree to hold Thrifty harmless for all third party claims for bodily injury and any other losses. Plaintiff the n filed a Motion for Summary J udg ment, adopting the pr e vio us ly

fi le d M oti on fo r P art ia l Su mma ry Judg me nt anda

Mo tio n for De c laratory

Judg me nt, and all the attachments. Plaintiff also attac hed the de position of Say ed Mansoor Fa khraie , who
te sti fi e d th a t he wo rk e d f or a re nta l c ar c omp a ny

in N or c ro ss, Ge or g ia

na me d A ll Re ntal
, I ncorpor ated, whic h his br other owned. He testified that he wa s the renta l ag ent who wa ited on the “g roup of f

o u r fr o m Eng land” who c ame in to re nt a mini-van, and that he explained to them that wi th int e rn a tio na l cus tom e rs , usu a lly the ir ins ur a nc e po lic ie s wou ld not c ov e r the m in the U. S., so they might wa nt to consider taking out additional cover ag e, and they ag ree d. He testified that he had been doing renta ls for 8-10 y ear s, and wa s experience d in handling r ental tra nsactions.

Fa khraie testified that he of

fe r ed thre e diffe rent ty

pes of insura nce to them, one which

cover ed the ve hicle, one w hich was f or injury to passeng ers in the c ar, a nd one which w as for lia bil ity , a ndthe y

c ho se the ins ur a nc e fo r the c ar andthi rd pa rt y lia bil ity
, a nd we re “ c omf

orta ble wi th-4-

what they h ad for their own persona l injury and hea lth. They

declined that.” He te stified that he

e xpla ine d th e lia

bil ity ins ur a nc e a s “ Yo u’ re c ov e re d u p to a mil lio n d oll ars in c a se the re is l ia bil ity in a lawsuit ag ainst y ou and we will cover that for y ou up to $1 milli on.” He testified that they had to initi al that t h ey we re acc epting that, but there w as just one pre mium, even thoug h there wer e multipl e drive rs. He te stified that he did not offe r to show them the insurance policy , beca use the brochur e wa s available on the counter . Further, that both he a nd All Rental g ot a commission for selling the SL I

cover ag e.

Fa khraie further

testified there was a

problem with the cr ed it card the rente rs wer e using, so onc e the tra nsaction bec ame a cash r ental, they had to ta ke the SL I
, there was no option. Fa kh r a ie te s ti f

ie d th a t o th e r in s u r a n c e c a ll e d PA I /P E P w a s a ls o a v a il ab le
, w h ic h w ould cover persona l injury for the passeng ers, and he ex plained that to t hem, and they declined it. He testified that he g ave them a renta l ja cket, as he did with eve ry renta l, and that no one e ver a sked to see the SL I brochur e. Plaintiff also attac hed the de position of James Michae l Nelson, who testified that he was the sole sha

reholde r of Courtesy

Rentals, I nc. d/b/a Thrif

ty Car Rental in Colleg e Park, G eorg ia,

a Ge or g ia c or po ratio n. Ne lso n te sti fi e d that he ha d o wn e d th e fr a nc his e fo r a pp ro xima te ly

10 y e ars

.

R e g ar d i n g t h e t yp e s o f

c o v e r a g e a v a i l ab l e , N e l s o n e x p l a i n e d th a t t h e r e w a s S LI, which cove red liability to third parties, so that “if y ou run into somebody else’s c ar, it would cove r the ca r and the people in the car - in the other c ar.” He e x plained that PAC cover ed the driver a nd passeng ers in the r enter ’s car , but SLI did not. Further that PAC c overe d the medical expenses of people in the car, and he thought it would cover the l iability of a driver to a pa sseng er, but wa s not sure. How ever , the SL I

would not cover

the driver ’s liabilityto a passeng er in the c ar.

Def endant then f

iled a Supplemental Motion for Summary J udg ment, and attac hed the depositions of Nelson and Fakhra ie, as well as Craster’ s deposition, interrog atory answe rs and Ba ll’s reque st to admit answers. I n plaintiff’s deposition, she testified she was 57 y ear s old, lived in Cambridge , Eng land, and ha d been e mploy ed until Dece mber 2002. S h e i d enti fied the r ental ag ree ment she signe d, and said she reme mbere d rea ding pa rt of it, but not all of it. S he testified that she did not remembe r see ing a renta l jacket, a nd did not reme mber the rental ag ree ment being folded

a ndpla c e d in a

re nta l jac ke t. She te sti fi e d th a t e ve n th ou g h th e a g re e me nt r e fe re nc e d a re nta l ja c ke t, sh e didno t a sk

to s e e on e , a ndthat “

ja c ke t” wa s n ot an En g lis h wo rd , a ndsh e wa s n ot f a mil iar w ith a jac ket in relation to paperwor k. She testified at the time of the renta l she was tire d and hot and ha d
to s i t d o wn , and her

companions aske d questions about Thrifty , but she did not remember the questions or answe rs. Plai n t i ff testified that she believe d she had c omprehe nsive cove rag e that

wo uldc ov e r “ a nythi ng that may ha pp e n to e ith e r y ou in y ou r v e hic le or to s ome bo dy

e lse in the ir

ve hic le ”

. She be lie ve d th a t sh e a sk e d if the ins ur a nc e wa s c omp re he ns ive , a ndwa s to ld that it wa s. She te sti fi e d she c ou ld not re me mbe r fo r ce rt a in be c a us e of the a c c ide nt, bu t sh e wo uldus ua lly a sk that question as a matter

of cour se.

She te sti fi e d s he did no t a sk qu e sti on s r e g ard ing wh o o wn e d th a t pa rt ic ula r T hrif ty fra nchise, be cause she thoug ht “Thrifty was Thrifty , a big name a nd I thought that would be okay .” She testified the re ntal ag ents wer e helpful, and could not reme mber whe ther they ref used to provide-5-

any reque sted information. She said she initialed the a g ree ment as ac cept i n g P DW and SL I , but declined PAI

/PEP , and she r emember ed that the ag ent explaining those to her , but she could not now

reme mb e r w h a t th e y w e r e

. Sh e te s ti f ie d th a t if it h a d s o me th in g to d o w ith h e a lth in s u r a n ce she would not have take n it, because she had taken out insuranc e for trave l. She te stified that her tra vel insurance had paid m o s t o f her medical e x penses, a nd she thoug ht she purcha sed compre hensive insurance , which mea nt that if she was injure d as a pa sseng er i n the re ntal vehicle, it would be

cover ed.

She could not reme mber whether there was an S L I brochur e on the counter, and she could not reme mber a ny

other documents or broc hures c oncerning insurance on the night they rente d the vehicle . She thought the insurance w as being provided by Thrifty
, and that she had ne ver se en the re ntal jacke t before her de position. S he further testified that Empire I nsuranc e Company had paid $25,000.00 to settle their lawsuit.

Following arg uments on the Motion for Sum mary J udg ment, the Trial Court is sued an Or de r o n A u g u s t 9
, 2 0 0 4
, g r a n ti n g s u mm ar y ju d g me n t to d e f e n d a n t, a n d f

u r th e r c e r ti f

ie d the Or de r a s a fi na l judg me nt pur su a nt to Te nn . R. Civ. P. 54.0 2, sin c e de fe nd a nt ha d a c ou nte r- c la im pending

.

Th e iss ue plaint if f p re se nts on app e a l is :

Did the Trial Court er

r in g ranting summary

judgme nt for def

endant r ather

than for the plaintiff?

An appe al from summary judgme nt is clas s i fi ed as a question of law and no presumption of cor

rec tness applies. Tenn. R. App. P. 13(d)

.

I n th is c a se , v ie wi ng the fa c ts i n th e lig ht mos t f a vo ra ble to p la int if

f, we sti ll m us t confr ont the unavoidable f act that plaintiff ad m i tted that she sig ned the r ental ag ree ment attache d to the Complaint as Ex hibit A, and relies on the sa me as he r a gre em ent with defe ndant. Plaintiff testified that she did not fully rea d the ag ree ment befor e sig ning it, but this does not relieve he r of the leg al ef

fec t of the contra ct, as she a cknowledg es s h e s i gn ed the contra ct voluntarily , and wa s under no pr essure or dure ss to acce pt. See Dixon v. M anier , 545 S.W .2d 948 (Tenn. Ct. App. 1976)

. Th e c on tr a c t w hic h p la int if f s ig ne d e xplic itl y

state s th a t “ B y

sig natur e be low , I

a c kn ow le dg e that I have rea d and ag ree to the terms and c onditions, bot h printed and w ritten, including Phy sical Damag e Waiver, that appea r on this re n t al s tatement and on the separ ate r ental jac ket.” Plaintiff testified that she did not reme mber g etting or rea ding the renta l ja cket, but a lso testified that others in he r g roup dea lt with thi s transac tion in addition t o her, a nd that at one point she ha d to sit down, leaving her c ompanions to complete the tra nsaction. She could not u n equivoca lly state that the re ntal jacke t was not provided, and testified that even though the renta l jacket wa s specific ally ref ere ncedFa khraie , the renta l a g ent who helped plaintiff and her companions, testified that he g ave 2 them a re ntal jacke t, as he did with eve ry renta l.

Whil e the plaintiff claimed she had not see n the re ntal jacke t, she attac hed par ag raph 10 3 to her orig inal Complaint as an exhibi t, appar ently relying on its terms..

I ncidentally
, this rule applies in Geor g ia. See Georgia Magne tic Imaging, Inc . v. Gre ene 4
Co. Ho sp ita l A uth or ity , 466 S.E.2d 41 (Ga. Ct. App. 1995).

-6- in the a g re e me nt s he sig ne d, sh e didno t a sk abo ut i t. 2

The re ntal ag ree ment demonstrates that plaintiff acc epted the PDW and SL I by her i n i t i a l s , b u td e c l i n e d P A I/P E P
, w h i c h s h e a d m i t s

. T h e r e n t a l j a c k e t e x p l a i n s t h e P D W a n d S LI provisions, which are undisputedly the only provisions which plaintiff ac cepte d.

Parag raph 10 of

the re ntal jacke t expl ains the SL I , or suppl emental liability insurance

cover ag e as: “ Thrifty wi l l p ro tect Me a g ainst third-party liabilityclaims arising out of the use or operation of the Car for

(I ) bodily

injury or death of another

(excluding a ny

of My or Additional Re nte r’ s f a mil y me mbe rs re la te d by blo od
, marria g e or a do pti on re sid ing wi th Me or the m) a nd ; ( ii) Property damag e other

than to the car .” Parag raph 10( B) g oes on to state that the SL I is “subject 3
to the oth e r s pe c if

ic e xclu sio ns wh ic h a

re summ ari zedon the se pa rate SL I br oc hu re wh ic h is available at the re ntal counter .” The brochur e expressly exclude s co v er age for bodily injury to a rente r.

Whil e plaint if f t e sti fi e d s he did no t see the br oc hu re , it is s pe c if ic a lly re fe re nc e d in the re ntal jacke t, wh i ch i s u n d i s p u tedly a part of the plaintiff’s c ontrac t. I t is well-settled in the jurisdiction that “when the la ng uag e o f a co n t ra ct is plain, simple and unambig uous”, “it is the function of a

court to i nterpre t and enforce contra cts as t hey are written, not withstanding the y may cont ai n t er ms which may be thoug ht harsh and unjust. A c ourt is not at liberty to make a ne w contra ct for parties who have spoke n for themse lves.” W ilkerson v. W

illiams , 667 S.W .2d 72 (Tenn. Ct. Ap p. 19 83 ); se e als o G e ne ra l Co ns t. Con tra c tor s A ss’ n. , I

nc ., v . G re ate r S t. T

ho ma s B ap tis t Church , 107 S.W .3d 513 (Tenn. Ct. App. 2002). 4

We are constraine d to enforc e the una mbiguous c ontrac t which plaintiff acknow ledg es she volun t ar i l y s i g ned, which a s written, produc es the re sult that plainti ff ha d no

cover ag e for

bodily injury beca use she wa s a re nter. As t h e Tria l Court stated in ruling f rom the bench, it is “an extremely strained arg ument that y ou can pluck one para g raph out of some document

a ndc la im that th a t is y ou r c on tr a c t w ith ou t r e ly ing up on the oth e r p ortio ns of it”

Finally , defe ndant ar g ued in the Trial Court and this Court that Thrifty is not a proper party to this l awsuit beca

use Thrifty was not a party to the contract. This point is moot since plaintiff did not establish a brea ch of c ontrac t claim in any event.Plaintiff also raised a claim in her Complaint that defe n d an t v i olated the Te nnessee 5 Con su me r P ro te c tio n A c t, b ut f a ile d to arg ue thi s is su e in h e r b ri e f. A r e vie w o f t he sta tut e demonstrates that the only act whic h plaintiff could be c omplaining of would be in the natur e of a misrepre sentation ( see Te nn . Co de An n. §4 7- 18 -1 04 ), a ndfo r the re a so ns state d, thi s c la im w ou ld be wi tho ut m e ri t.

-7-

As to plaintiff’s fr aud cla im, we conc lude that she c ould not dem o n s t ra t e that any

un true stateme nts were made by a Thrif ty repr esentative (which is re quired to prove fraud/misreprese ntation.) See Shahrdar v. Global Housing, Inc. , 983 S.W .2d 230 (Tenn. Ct. App. 1998)). Plaintiff testified that she could not reme mber the e x act conver sation or any repr esentations that wer e made . Taking the fa cts in the light most favor able to pla i n t i ff
, s h e did testify that she thought she was ge t t i ng “compr ehensive ” cove rag e, althoug h she could not re member how the

cover ag e wa s expl ained to he r or the exact discussion, she simplythought she would have a sked for that beca use she usua lly

did. On the ot her ha nd, plaintiff also testified she did r emember declining

o n e k ind of cover ag e b e c a u s e s h e th o u g h t i t w o u ldb e d u p li c a ti v e o f h e r tr a v e l i n s u r a n c e

. We conclude the plaintiff did not offe r material evidenc e of a ny intentional misreprese ntation that was made knowing ly

or re cklessly

that was fa lse. See S h a h r d ar . The Trial Court properly g rante d

su mma ry jud g me nt o n th e thi s c la im a s w e ll. 5

Th e Judg me nt o f the Tria l Court is a ff ir me d a ndthe c a us e re ma nd e d, wi th the c os t of the a ppeal a ssessed to plaintiff, Robin Craster.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.