IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MARCH 20, 2003 Session

DANIEL BILLS, JR., ET AL. v. CONSECO INSURANCE CO.

Direct Appeal from the Chancery Court for Sumner County

No. 2001C-296 Tom E. Gray, Chancellor

No. M2002-01906-COA-R3-CV - Filed October 28, 2003

Holly M. Kirby, J., concurring separately.

I write separately for two reasons. First, to emphasize the need for the legislature to address

the statutes governing the intoxication exclusion in group insurance policies. The majority opinion

rightly notes that the legislature enacted a statute, Tennessee Code Annotated § 56-26-109, which

specifies that an intoxication exclusion may exclude coverage only for a loss sustained “in

consequence of the insured’s being intoxicated,” that is, a loss caused by the insured’s intoxication.

This is not applicable to a group policy, however, as specified in Tennessee Code Annotated § 56-

26-122. As a result, a group insurance policy may exclude coverage for an insured if the injury

occurs when the insured is intoxicated, even if the intoxication in no way caused the accident. In

other words, if the insured is drinking while a passenger in a vehicle, or indeed drinking wine with

dinner in his own home, and is struck by an errant vehicle, his injuries are not covered by his

insurance if it is a group policy. This makes no sense. The majority is correct in applying the

statutes and the policy as written in this case, but the inconsistency in treatment under the statutes

should be remedied by our legislature. 

The second reason for this separate concurrence is to explain a portion of my analysis of the

affirmance of the trial court’s grant of summary judgment in favor of Conseco. The provision in this

policy excludes from coverage a loss sustained while the insured is “intoxicated” or “under the

influence of intoxicants.” Bills’s blood-alcohol level of 0.137, of course, raises the rebuttable

presumption that he was intoxicated, so the issue is whether Bills has proffered sufficient evidence

to rebut that presumption and create a genuine issue of fact.

The evidence proffered by the Bills, and noted by the majority, is insufficient for a variety

of reasons. The Bills raise the issue that the pain medication may have affected the BAC level, but

present no expert testimony to establish this. They assert that one of the paramedics on the scene

of the accident told Mr. Bills that his son seemed “perfectly fine,” clearly inadmissible hearsay, and

do not submit an affidavit by the paramedic who made that statement.
A closer question arises, however, from the son’s deposition, and this merits discussion. In

the deposition, in response to a question about whether he considered himself intoxicated at the time

of the accident, Bills, Jr. replied that he did not. His opinion may be dubious indeed in light of a

blood-alcohol level of 0.137 and the other surrounding circumstances. However, since we do not

assess credibility at this point, it is likely sufficient to create a genuine issue of fact regarding

whether Bills was “intoxicated,” sufficient to survive a motion for summary judgment.

Nevertheless, the provision in this policy also excludes coverage for a loss incurred when the

insured is “under the influence of intoxicants . . . .” While Bills states in his deposition his opinion

that he was not intoxicated, he does not assert that he was not “under the influence of intoxicants.”

Therefore, in light of his BAC level of 0.137, there is no genuine issue as to whether Bills was

“under the influence of intoxicants,” and the trial court rightly granted summary judgment in favor

of Conseco. I concur in the affirmance of the trial court’s decision on this basis.

 

HOLLY M. KIRBY, J.