### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE TRAVELERS INDEMNITY COMPANY v. KENTON FREEMAN, ET AL 

### . Chancery Court for Davidson County

No. 00-497-III

No. M2001-00657-COA-R3-CV - Filed April 26, 2001

OPINION ON PETITION TO REHEAR Houston M. Goddard, P.J., delivered the opinion of the court in which Herschel P. Franks and D. Michael Swiney, JJ., joined.
We have for consideration the splenetic petition of the appellee s for a re-hearing of this case.
It is alleg ed that ou

r dispositi on of the c ase “pit s mother a gainst son in a ba

ttle that b enefits only the insur ance co mpany .” This co nclusory statemen t is irrele vant. It is further alleg ed that under our holding “Alice F

reeman ’s damag es could never exha ust her UM coverage.” We are

u n certain of the re levancy of this co nclusory

statemen t. We pres ume that “Alice Freeman’s damag es” refers to the Administrator’s claim for damag es for her wrongful death, and, of c ourse, th

e Administ

rator’sclaim cou

ld exhaust

the UM co verag e absent

the claim of her guest passenger.
It is further alleged that our opinion misapprehends a “material proposition of law” and conflic ts with existing case law and the “sound public policy of this state,” apparently

because we held that the proceeds of the Progressive policy should be allocated between the Administra to r”s claim and Will Free

man’s cla im.
The appelle es insist th at our hol ding dir ectly conflic ts with Hale v. S

tate Farm Mut. Ins. Co. , 474 S.W.2d 905 (Tenn. 1971). We quote from the appellee’s petition:

In Hale v. State Farm

Mut. Ins. Co. , 225 Tenn. 620, 474 S.W.2d 905 (1971), the Tennessee Supreme Court held that an insurer properly

exhausted the full amount of its uninsured motorist coverage in response to the claim by the estate of the named insured, despite the potential [claims] of the plaintiffs under that same policy

. Id . at 635, 474 S.W.2d at 911. Plaintiffs in Hale , a father and his injured minor son, sought covera ge under two policies of uninsured motorist insurance for injuries that son sustaine d in an-2-

accident that occurred while he wa s a gu est passenger in the vehicle of Her man Wilkerson. An uninsur ed motoris t struck th

e Wilkerso n vehicle , ki lling Mr. Wilkerson and seriously injuring the minor Ha le, Id . at 624, 474 S.W.2d at 906. Both the Hale s and Wilke rson had u ninsured motorist c overag e. Mr. Ha le had purchased coverag e for himself and his son from State Farm Mutual I nsurance Co mp an y, whil e Mr. W ilker son ha d purc hased covera ge from Nationwide Insurance Co mp an y. The State Farm policy specified that its coverage was “e xcess” over the limits of any

othe r similar insurance available to an insured whose injury occurred while he occupied a vehicle not owned by the named insured

(i.e., Mr. Hale). Id . at 633, 474 S.W.2d at 910-911. Th e Nationw id e p ol ic y (M r. Wi lk er so n’ s p ol ic y) potentia lly covered the minor Hale, but Nationwi de paid th e entire policy limits in response to the claim of the Wilkerson estate. Id, at 626-27, 474 S.W.2d at 907. The Hales br

ought suit against

both insurers. State Farm attempted to avoid coverage on the basis that other insuranc e coverage wasavailable to the Hales, but the Supreme

Court rejected its argument and awarde d them cov erage

under the State Farm policy. The Court

also held that the Hales could not recover under the primary Nationwide policy, beca

use Nationwide “comple

tely fulfilled its obl igation by pa ying the full amount of coverage to the estate of the deceased host driver.” Id . at 636, 474 S.W.2d at 911.
The remainder of the holding in Hale is ignor ed by appelle es. I

t is, “[a]t the time of

this pay ment, plaintiff

s had filed n o claim with

Nationwide

nor had the

y institute d their

assigned actions against the drivers of the vehicles involved in the accident .” (Emphasis supplied).
We are not aware of any

statutory or decisional

law that requires or justifies judicial micro managing of insured tort claims until and unless competing claims are pre s ented that are pay able, if at all , from assets of the tortfeasor or which provide monetar y protection on his behalf f or the benefit of claima nts, such a s UM cove

rage. Inhe

rent in the holding in Hale is a point of significance: no claims or actions had been filed against Nationwideby any person other than the Administrator of Wilkerson’s estate. Hence, Nationwide justifiably paid its ent ire c overage to Wilkerson’s Administrator.
In the case

at Bar, Progre ssive was fully aware of the compe ting claims of the Administrator and his son.
It is likely that a co nclusio n was reached that Will Freeman, a minor, would not be disadvantaged

under Alabama law [although the record is silent o n the point] if the entire Progressivepo li cy p rocee ds were paid to the

Administra

tor of his m

other’sestate since Will - presuma bly - was the sole bene

ficiary of those p

roceed s. This strateg

y - if the word is applicable - did not take into account the recognizable rights of Travele rs.-3-

We find baffling the argument of a ppellee s that under our holding “ . . . an injured minor child with excess coverage must compete dollar for dollar against his injured [sic: deceased] mother for coverage under her

policy - the only

coverage she has available to her . . . . Theultimate effect of such a rule is to diminish the family’s total rec overy while f ortifying the

coffers of

the insurers.”
The injured c

hild and hi s decea sed mothe r were c laimants agains t Nationwide (insurer of Watson) which paid t he lim its o f its covera ge equally to them pur suant to a

n approv ed settle

ment. They are claimants against the Progre ssive policy in the same manner

- Will’s cla

im is as cog

nizable as th e A dm in is tr at or ’s , s in ce bo th we re pr es en te d s im ul ta ne ou sl y. It is worth repeating that thi s act ion began as one for a decla ratory judg

ment. It thereafter took on ad

ditional a spects, n one of wh ich involv ed a dete

rmination of the va lue of the claims.
Our holding with respect to the u nique Ala bama wro ngful de ath statut e is not challenged by the appella

nt, butwe take this opportunity to announce that we have considered, at length, the impact of Harris v. Chern , 33 S.W.3d 741 (Tenn. 2000) and conclude that the relevant holding of Bradley v. McLeod , 984 S.W.2d 929 (Tenn. Ct. App. 1998) is not rejected.
The petition to

re-hear is denied, at costs of the appellee s, Kenton Freeman, individually and as next friend for his minor son, Will Freeman.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE