# FILED
October 5, 1995 Cecil Crowson, Jr. App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

_______________________________________________ JAMES R. FRUGE and JANE FRUGE, Plaintif fs-Appe llants, Shelby Circuit #49803 Vs. C.A. No. 02A0 1-9408-CV-0

0198 JOHN DOE and JANE DOE, Defendan ts-Ap pellees.

_________________________________________________________________________

FROM THE SH ELBY COU NTY CIRCUIT COU RT THE HONORABLE GEORGE H. BROWN,JR., JUDGE

R. Sadler Bailey of Memphis For A ppel la nts Robert M. Fargarson and Martin Zum mach of Nee ly, Green, Fargarson & Bro oke of Memphis For Stat e Farm Insurance Company

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD, JUDGE

CONCUR: DAVID R. FARMER, JUDGE2

BROOKS MCLEMORE, SPECIAL JUDGE This appeal involves

a suit seeking recovery under the uninsured motor ist provision of a liabi lity insu rance policy. Plaintiff s, James R. Fruge and Jane Fruge, appealfrom the or

der of the trial cou rt granting s ummary judgment to the unnamed defendant-appe ll ee, State Farm In surance Com pany. The facts are virt

ually undisputed. On November 8, 1991, bet ween 6: 0

0 and 6:30 p.m., plaintif fs were i nvol ved in a one-car accident t hat occurred when the a utomob ile driven by Mr. Frug e and i n whi ch Mrs. Fr uge was a passenger

was merging with westbound traf fic on the Hernando-D eSoto Bridge in Mem phi s, Te nne sse e. As Mr. Frug e wa s l ooki ng l eft to as cer ta i n whether he
co uld enter t

he traffic flow safely, Mrs. Fruge sudden ly warned him of a stopped aut omo bi le in their pat

h of travel. When Mr. Fruge attem pted to swerve and avoid the a utomob ile, he lost cont rol of his vehicle, cros sed two lanes of t

raffic, struck the sout

h-side retaining wall of the bridge, and th en tr aveled back a cross two lanes of westbound traf fic. T he aut omobile fina lly came to res t ag ainst

the nort h-side retaining wall. There was no contact between the Fruge au to mob ile and any other vehicle. Both Mr. and Mrs. Fruge su stain ed person al injuries a s a res ul t of the a cci den t. Pursuant

to T.C.A. § 56-7-1206 (b) plai ntif fs sued t

heir unins

ured mot

orist carrier, State Farm I nsurance Company. On m otion for summary judgment, the trial cou rt di sm iss

ed th e su it, and this appeal ensued. The only issue is whether th e t ria l cou rt

err ed i n gr ant ing summa ry judgm ent toSt at e Fa rm. A trial cou rt should grant a mot ion for summary judgment only if the movant demonstrates t

hat t here are no genuine issues of mat erial fact

and that the moving party is

entitled to judgment as a matt er of law. Tenn.R.Civ.P. 5 6.03; Byrd v. Hall , 847S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving fo r summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d3

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

he same manner as a motion for directed verdict made at t he close of the plaintif

f's proof; t

hat is, "t he cou rt mu st take the str onge st l egi tima te view of the evi den ce i n f avor of th e n on mov ing pa rt y, allo w all r

ea so na ble inferences

in favor of that party, and disc ard all countervail ing evidenc e." Id . at 210-11. In Byrd , th e Tenness ee Supreme C ourt

stat ed: Once it is sho wn b y th e moving party t hat t here is no genuine issue of material fact, t he nonm ovi ng pa rty must then demonstrat

e, b y affidavits o r discovery materia ls, that

there is a g enu ine , ma teria l f act d isp ute to warr ant a trial. [cit

atio ns omit

ted]. In t

his rega rd, Rule 56.05

provides that

the nonmoving par

ty cannot sim ply rely upon h is p le adi ngs but m ust s

et for th specific facts

showing that

there is a genuine is

sue of mat erial f act fo r t ria l. Id . at 211. (emphasis in origin al). The summ ary judgme nt process shoul d only be used as a m eans of concluding a case when there are no genuine issues of material fact, and t he
case can be r

esolve d on the legal issues al one. Id . at 210 (citing Bellamy v. Federal Express

Corp ., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary ju dgment is not to be used as a substitut e for a tria lof genu ine and mat erial fact

ual issues. Byrd , 847S.W.2d at

210 (cit ing Blocker v. Regional Medical Ctr ., 722 S.W. 2d 660, 660-61 (Tenn. 1987)). Wher

e a ge nui ne d isp ute ex ists as to an y ma teria l f

act or as to the conclusions

to be drawn from those facts, a court must deny a m otion for
summ ary judgme nt. Byrd , 847 S.W.2d at 211 (citing Dunn , 833 S.W.2d at 80). This case is cont

rolled by T.C .A. § 56-7-1 201 ( e) (1994) , which pr

ovides: (e)If t he own er or

op era to r o f a ny

mot or ve hic le which causes bodily injuryor property damage to t

he insured is u nkn own , the i nsu red sha ll have no ri ght to recoveryunder t

he uninsur

ed moto rist p rovisio n unless: (1)( A) Actual physical contact sha ll h ave occurred between the motor vehicle owned or ope rat ed by suc h u nknown per

son and the person or property of the insured; or4 (B) The existence of such u nknown m otor is t is established by clear

and convincing evidence, other than any evidence provided by occupa nts in the insured vehicle; (2)The in sur

ed o r so meo ne in th e i nsu red 's b eha lf sha ll have repo rted th e ac cident to t he appropriate law enforcement

agency within a reasonab le time after it s occurrence; and (3)The insured was not negl ige nt in f ail ing to determine th e iden tity of th e o th er ve hic le a nd the owner or op erato r of th e other vehicl e at the time of the ac cid ent. In support of it

s motion for summaryjudgment, Stat e Farm relies upon the pleadings

and pl ain tiffs

' de posi tions

in w hic h pl ain tiffs

state th at ther

e was no physical contact bet

ween their vehicle and any other vehicle. In res pons e to the motion for summary judgment, plaintiff s' filed the affid avit of W. R. Ruther ford, a Memphis po lice officer who inves

tiga ted t

he accide nt. T

he affidav it st

ates: 1) My n ame is Wi ll ie Ra y Rutherford. I have been employed by the Memphis Police Dep a rtment as a patrolman for the last t wenty six (26

) years and have been a member

of the motorcycle division since 1975. 2) As p art

of myjo b dutie s with t he Memphis Po lice De partm ent, I am dispatched to variou s circumstances

involving motor vehicles and traffic problems. After arriving on the scene where prop erty damage and/or

personal injury has

been sustained as a re sul t of the m otor ve hic le oper ation , I cond uct a n investigation of the physical surroundings, observe the automobile/automobiles i n volved and interview any driver( s) or passenge r(s)or t

he involved vehicle(s

) and anywitness(es) t

hat could or migh t h ave been pre sen t. My fi ndi ngs

are r edu ced to written fo rm on a pre pri nt ed T enn esse e Un ifo rm T

raf fic Accident

for m. 3) On November 8, 19 91 at ap pr oxima te ly6:45 p.m., a callwas received bythe Memphis Police Department regarding a traffic proble m on or near the Hern andoDeSoto Bridge invol ving mul tiple vehic les. I wa s dispatched an d a rrived on the scene a t ap pr oxima te ly7:00 p.m. Due t o the ext

ent of ve hic le i nvolvement

and the need toclear the roadway as quickly as possible, I cal led for assistance to secure t he scene.5 4) While com pleting m y rou tin e investigat ion, I noted the probab le source of the resulting collisions to be a brown Ford thunderbird auto mobile that had ap pa ren tly

ran out of gas and was blocking o ne or more la nes of westbound tra ffic. Although vehicles either struck the re ta ini ng wallor st ruck ot her vehicles, the ab an don ed a ut

omo bi le was not struck by any of the involved parties. The aba ndoned automobile was unlicensed, was without a driver and had t o be towed from the scene by wrecker so t hat th e r oa dwa y c ou ld be fi na lly c le are d. I was unable to identify the driver of the abandoned ve hicl e and the vehicl e was not claimed before bei ng towed to the City Lot for storage. 5) I prepared at least t wo accident reports ( #7188066 and #7188067) involving the incident. Bo th rep orts referenc e the st

alled vehicl e in the westbound lanes of traffic with no mentio n of the name of t he drive r thereof. Plaintiffs assert t hat t he Rutherford affidavit creates a genuine is sue of materialfact t

hat precludes

the grant of summary judgment. T he plaintiffs argue that even thou g h there was no physical contact between their aut omo bi le and the alleged abandoned car, they can prove the existenc e of the unknown motorist by clear and convincing evidence. Plaintiffs contend t hat the Rutherford affidavit establishes the existence o f an unknown motorist by clear and convincing evidence; therefo re, the re quir ements of T.C.A. § 56-7- 1201 (e)are sat

isfied, and they are ent itled to r ecover f rom Sta te Fa rm. We must respectfully disagree. The affidavit

establishes that

Officer Rutherford did not arrive on the scene of the accide nt tha t he was investiga ting until approximat ely 7 p.m. Plaintiffs established the t

ime of their accident be tween 6:00 and 6: 30 p.m. Therefore, there was at least a t ime differential of thirt y minutes from the t ime of the accident

to t he time that

Rutherford observed an unoccupied vehicle near the acci den t

scene. Since Officer Rutherford had no p ersonal knowledge of the
cause of

the a ccident

, his con clusion as t

o the cause is no t admissi ble evidence under Tenn .R.E vid . 602; th erefore, it can not be conside red in c onne ction with6

the motion f

or summary judgment. Tenn.R.Civ.P. 56.05. To determine what anins ure d is requ ire d to show to sat isfy T.C.A. § 56-7- 1201 (e) necessit

ates a const

ructio n of

the sta tute. The rule of stat utory construction to which al l others m ust yield is that the intentionof 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. A pp. 1978). "[L}egislative intent or

purpose is to be a scertained primarily from the natura l and ordinarymeaning of the language used, when read in the cont ext of t he entire statut e, without any

forced or su btl e con stru ction to lim it or extend the import of the language. " Worrall v. Kroger Co. , 545 S.W.2d 73

6, 738 ( Tenn. 1977). The Court has a du tyto const

rue a stat

ute so t hat no part

will be inopera tive , superf luous, void or insig nificant

. The C ourt

must give effect

to e very wor

d, phrase, clause, and sentence of t

he Act in order t

o achieve the Legislat ure's int ent, and it

must const rue a stat

ute so t hat no sect

ion will des

troy 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 benef its under Tennesse e's

uninsured motor

ist st atut e only if t

here was ac tual physical cont act between the "phant om" automobile and the ins ured/i nsured's automobile. Obviousl y, the ph ysic al conta ct req uir em ent was an effo rt on th e par t o f 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
acc ide nt, when in fact, t he sole cause of the accident was the negligence of the insured. In 1989, the Legislature app arently recognized that there would be
cases wher e "p han to m"vehicles did in fact cause the insured's injuries, but t he "ph ant om" vehicle did not actually make contact with t he insured/insured ' s automobile. In an effort toprevent legitimat e unin sured m otorist claim s from being denied in these cases, the Legi sl ature add ed § (e)(1)(B) to T.C.A. § 5 6-7-1 It appears

from the plaintiffs' deposit ions that there was a motorist

present at th e t ime of the coll ision that could have establi shed the existenc e of unkn own operator

or drive r tha t caus

ed an aba ndoned veh icle to b e left ina danger ous position near the accident scene, but noproof was presented fro m this person. 7 1201. The statute, as it now exist s, requi res th e insured t o est ablish "the exist

ence of such unknown motorist [t he unknown motorist t ha t caused injury to t he insured]

. . . by c lear and conv incing ev idence, o ther thanany ev idence provided by occup ants in the insured ve hicle." In our opinion the st

atute is clear in its r equirement

s that t he i nsured pro ve by clear and conv incing ev idence both the existence o f the "phant om" vehi cle, an d t

ha t t he "ph an to m" vehicle caused the inj uries to the insured
. In the insta nt case, t he aff ida vit of Off

icer Rut herford does not

, in our opinion, prove b y clear and co nvinci ng evidence the existence of an abandoned automobile that caused the Fruges's injuries. The p art of the affidavit which is admissibl e in to evidence esta blishes, at most, t hat at ap pr oxima te ly7 p.m. there was a vehicle blocking part of the roadway near

the vic ini tyof

the accident. There is no evidence , other than that from the plaintiffs (the occupants of the insur ed vehicl e), that

there was

an unatt

ended, unlighted vehi cl e bl ocki ng tra ffic la nes at 6:30 p.m . wh ich cau sed the ac cid ent. 1 Wh ile we recognize that the Fruges's account

of the accident

is plausible, the stringent

requirem ents

of proof est

ablished by the Legislature preclude a holding that

would provide for uninsured motorist benefit s in this case. Accordin gly, the o rder of t he tr ial court grant ing sum m ary j udg me nt to State Farm Insurance Compa ny i s affirmed. The case is remanded for such further proceedings

as may be nec essary. Costs of the appea l are assessed a gainst the a ppellants.

____________________________________ W. FRANK CRAWFORD, JUDGE8

CONCUR:

________________________________ DAVID R. FARMER, JUDGE

__________________________________ BROOKS MCLEMORE, SPECIAL JUDGE