FILED

October 5, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

 _______________________________________________

JAMES R. FRUGE and JANE FRUGE, 

Plaintiffs-Appellants,

Shelby Circuit #49803

Vs. C.A. No. 02A01-9408-CV-00198

JOHN DOE and JANE DOE,

Defendants-Appellees.

_________________________________________________________________________

FROM THE SHELBY COUNTY CIRCUIT COURT

THE HONORABLE GEORGE H. BROWN, JR., JUDGE

R. Sadler Bailey of Memphis

For Appellants

Robert M. Fargarson and Martin Zummach of Neely,

Green, Fargarson & Brooke of Memphis

For State Farm Insurance Company

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD, JUDGE

CONCUR:

DAVID R. FARMER, JUDGE
2

BROOKS MCLEMORE, SPECIAL JUDGE

This appeal involves a suit seeking recovery under the uninsured motorist

provision of a liability insurance policy. Plaintiffs, James R. Fruge and Jane Fruge,

appeal from the order of the trial court granting summary judgment to the

unnamed defendant-appellee, State Farm Insurance Company.

The facts are virtually undisputed. On November 8, 1991, between 6:00

and 6:30 p.m., plaintiffs were involved in a one-car accident that occurred

when the automobile driven by Mr. Fruge and in which Mrs. Fruge was a

passenger was merging with westbound traffic on the Hernando-DeSoto Bridge

in Memphis, Tennessee. As Mr. Fruge was looking left to ascertain whether he

could enter the traffic flow safely, Mrs. Fruge suddenly warned him of a stopped

automobile in their path of travel. When Mr. Fruge attempted to swerve and

avoid the automobile, he lost control of his vehicle, crossed two lanes of traffic,

struck the south-side retaining wall of the bridge, and then traveled back across

two lanes of westbound traffic. The automobile finally came to rest against the

north-side retaining wall. There was no contact between the Fruge automobile

and any other vehicle. Both Mr. and Mrs. Fruge sustained personal injuries as a

result of the accident.

Pursuant to T.C.A. § 56-7-1206 (b) plaintiffs sued their uninsured motorist

carrier, State Farm Insurance Company. On motion for summary judgment, the

trial court dismissed the suit, and this appeal ensued. The only issue is whether

the trial court erred in granting summary judgment to State Farm.

A trial court should grant a motion for summary judgment only if the

movant demonstrates that there are no genuine issues of material fact and that

the moving party 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); Dunn v. Hackett, 833 S.W.2d 78, 80

(Tenn. App. 1992). The party moving for summary judgment bears the burden

of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d
3

at 210. When a motion for summary judgment is made, the court must consider

the motion in the same manner as a motion for directed verdict made at the

close of the plaintiff's proof; that is, "the court must take the strongest legitimate

view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence." Id. at

210-11. In Byrd, the Tennessee Supreme Court stated:

Once it is shown by the moving party that there is no

genuine issue of material fact, the nonmoving party

must then demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute

to warrant a trial. [citations omitted]. In this regard,

Rule 56.05 provides that the nonmoving party cannot

simply rely upon his pleadings but must set forth

specific facts showing that there is a genuine issue of

material fact for trial.

Id. at 211. (emphasis in original). 

 The summary judgment process should only be used as a means of

concluding a case when there are no genuine issues of material fact, and the

case can be resolved on the legal issues alone. Id. at 210 (citing Bellamy v.

Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary judgment is not

to be used as a substitute for a trial of genuine and material factual issues. Byrd,

847 S.W.2d at 210 (citing Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61

(Tenn. 1987)). Where a genuine dispute exists as to any material fact or as to the

conclusions to be drawn from those facts, a court must deny a motion for

summary judgment. Byrd, 847 S.W.2d at 211 (citing Dunn, 833 S.W.2d at 80).

This case is controlled by T.C.A. § 56-7-1201 (e) (1994), which provides:

(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

recovery 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
4

 (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.

In support of its motion for summary judgment, State Farm relies upon the

pleadings and plaintiffs' depositions in which plaintiffs state that there was no

physical contact between their vehicle and any other vehicle. In response to

the motion for summary judgment, plaintiffs' filed the affidavit of W. R.

Rutherford, a Memphis police officer who investigated the accident. The

affidavit states:

1) My name is Willie Ray Rutherford. I have been

employed by the Memphis Police Department as a

patrolman for the last twenty six (26) years and have

been a member of the motorcycle division since 1975.

2) As part of my job duties with the Memphis Police

Department, I am dispatched to various

circumstances involving motor vehicles and traffic

problems. After arriving on the scene where property

damage and/or personal injury has been sustained as

a result of the motor vehicle operation, I conduct an

investigation of the physical surroundings, observe the

automobile/automobiles involved and interview any

driver(s) or passenger(s) or the involved vehicle(s) and

any witness(es) that could or might have been

present. My findings are reduced to written form on a

preprinted Tennessee Uniform Traffic Accident form.

3) On November 8, 1991 at approximately 6:45 p.m., a

call was received by the Memphis Police Department

regarding a traffic problem on or near the HernandoDeSoto Bridge involving multiple vehicles. I was

dispatched and arrived on the scene at

approximately 7:00 p.m. Due to the extent of vehicle

involvement and the need to clear the roadway as

quickly as possible, I called for assistance to secure the

scene.
5

4) While completing my routine investigation, I noted

the probable source of the resulting collisions to be a

brown Ford thunderbird automobile that had

apparently ran out of gas and was blocking one or

more lanes of westbound traffic. Although vehicles

either struck the retaining wall or struck other vehicles,

the abandoned automobile was not struck by any of

the involved parties. The abandoned automobile was

unlicensed, was without a driver and had to be towed

from the scene by wrecker so that the roadway could

be finally cleared. I was unable to identify the driver

of the abandoned vehicle and the vehicle was not

claimed before being towed to the City Lot for

storage.

5) I prepared at least two accident reports (#7188066

and #7188067) involving the incident. Both reports

reference the stalled vehicle in the westbound lanes

of traffic with no mention of the name of the driver

thereof.

Plaintiffs assert that the Rutherford affidavit creates a genuine issue of

material fact that precludes the grant of summary judgment. The plaintiffs

argue that even though there was no physical contact between their

automobile and the alleged abandoned car, they can prove the existence of

the unknown motorist by clear and convincing evidence. Plaintiffs contend that

the Rutherford affidavit establishes the existence of an unknown motorist by

clear and convincing evidence; therefore, the requirements of T.C.A. § 56-7-

1201 (e) are satisfied, and they are entitled to recover from State Farm. We must

respectfully disagree.

The affidavit establishes that Officer Rutherford did not arrive on the scene

of the accident that he was investigating until approximately 7 p.m. Plaintiffs

established the time of their accident between 6:00 and 6:30 p.m. Therefore,

there was at least a time differential of thirty minutes from the time of the

accident to the time that Rutherford observed an unoccupied vehicle near the

accident scene. Since Officer Rutherford had no personal knowledge of the

cause of the accident, his conclusion as to the cause is not admissible evidence

under Tenn.R.Evid. 602; therefore, it cannot be considered in connection with
6

the motion for summary judgment. Tenn.R.Civ.P. 56.05.

To determine what an insured is required to show to satisfy T.C.A. § 56-7-

1201 (e) necessitates a construction of the statute. The rule of statutory

construction to which all others must yield is that the intention of the legislature

must prevail. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 498 (Tenn.

App. 1983); City of Humboldt v. Morris, 579 S.W.2d 860, 863 (Tenn. App. 1978).

"[L}egislative intent or purpose is to be ascertained primarily from the natural and

ordinary meaning of the language used, when read in the context of the entire

statute, without any forced or subtle construction to limit or extend the import of

the language." Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977). The Court

has a duty to construe a statute so that no part will be inoperative, superfluous,

void or insignificant. The Court must give effect to every word, phrase, clause,

and sentence of the Act in order to achieve the Legislature's intent, and it must

construe a statute so that no section will destroy another. City of Caryville v.

Campbell County, 660 S.W.2d 510, 512 (Tenn. App. 1983); Tidwell v. Collins, 522

S.W.2d 674, 676 (Tenn. 1975).

Prior to 1989, an insured could recover uninsured motorist benefits under

Tennessee's uninsured motorist statute only if there was actual physical contact

between the "phantom" automobile and the insured/insured's automobile.

Obviously, the physical contact requirement was an effort on the part of the

Legislature to prevent fraudulent claims by preventing an insured from alleging

that the negligence of some "phantom" driver caused the insured's one-car

accident, when in fact, the sole cause of the accident was the negligence of

the insured. In 1989, the Legislature apparently recognized that there would be

cases where "phantom" vehicles did in fact cause the insured's injuries, but the

"phantom" vehicle did not actually make contact with the insured/insured's

automobile. In an effort to prevent legitimate uninsured motorist claims from

being denied in these cases, the Legislature added § (e)(1)(B) to T.C.A. § 56-7-
1

It appears from the plaintiffs' depositions that there was a motorist present

at the time of the collision that could have established the existence of unknown

operator or driver that caused an abandoned vehicle to be left in a dangerous

position near the accident scene, but no proof was presented from this person.

7

1201. 

The statute, as it now exists, requires the insured to establish "the existence

of such unknown motorist [the unknown motorist that caused injury to the

insured] . . . by clear and convincing evidence, other than any evidence

provided by occupants in the insured vehicle." In our opinion the statute is clear

in its requirements that the insured prove by clear and convincing evidence

both the existence of the "phantom" vehicle, and that the "phantom" vehicle

caused the injuries to the insured. 

In the instant case, the affidavit of Officer Rutherford does not, in our

opinion, prove by clear and convincing evidence the existence of an

abandoned automobile that caused the Fruges's injuries. The part of the

affidavit which is admissible into evidence establishes, at most, that at

approximately 7 p.m. there was a vehicle blocking part of the roadway near the

vicinity of the accident. There is no evidence, other than that from the plaintiffs

(the occupants of the insured vehicle), that there was an unattended, unlighted

vehicle blocking traffic lanes at 6:30 p.m. which caused the accident.1

 

While we recognize that the Fruges's account of the accident is plausible,

the stringent requirements of proof established by the Legislature preclude a

holding that would provide for uninsured motorist benefits in this case.

Accordingly, the order of the trial court granting summary judgment to State

Farm Insurance Company is affirmed. The case is remanded for such further

proceedings as may be necessary. Costs of the appeal are assessed against

the appellants.

____________________________________

W. FRANK CRAWFORD, JUDGE
8

CONCUR:

________________________________

DAVID R. FARMER, JUDGE

__________________________________

BROOKS MCLEMORE, SPECIAL JUDGE