Crumley v. Travelers Indem. Co.
| Decision Date | 17 January 1972 |
| Citation | 475 S.W.2d 654,3 Pack 667,225 Tenn. 667 |
| Parties | , 225 Tenn. 667 Bobby Hugh CRUMLEY, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant. |
| Court | Tennessee Supreme Court |
Wilson N. West, H. Stanley Allen, Jr., Nashville, for plaintiff-appellee.
Glasgow, Adams & Taylor, Nashville, for defendant-appellant.
This case is before the Court upon grant of the petition for writ of certiorari. The parties will be referred to by name: the petitioner, Bobby Hugh Crumley as Crumley, and the respondent, Travelers Indemnity Company, as Travelers or the Insuror.
Travelers issued to Crumley an automobile liability insurance policy containing 'uninsured motorist' protection. The pertinent provisions of the policy are:
'The Travelers Indemnity Company--agrees--:
'COVERAGE C--PROTECTION AGAINST UNINSURED MOTORISTS (BODILY INJURY ONLY)
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided . . .
'Exclusions
(b) This policy does not apply:
Under Coverage C,
(q) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which Such insured, his legal representative or any person entitled to payment under this coverage Shall, without written consent of the company, make any settlement with or Prosecute to judgment any action against any person or organization who may be legally liable therefor;
If, before the company makes payment of loss under Coverage C, The insured or his legal representative Shall institute any legal action for bodily injury against any person or organization legally responsible for the use of an automobile involved in the accident, A copy of the summons and complaint or other process served in connection with such legal action shall be forwarded immediately to the company by the insured or his legal representative.
Part 1--Coverages B and C--Part II No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance With all the terms of this policy nor, under Part II, until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy.' (Emphasis supplied.)
'b) for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.'
Crumley thereafter, on October 25, 1965, suffered property damage and personal injury in a collision with a car operated by an Arkansas resident. Crumley then filed for, and received from Travelers payments for property damage and medical expenses under the 'collision' and 'medical payments' sections of the policy. Sometime prior to September 1, 1966 Crumley retained Wilson West, a lawyer with his office in Nashville, Tennessee, to seek damages for his personal injuries. West contacted Travelers' agent, also in Nashville, by telephone and asked for and received permission Under the policy to start court proceedings to collect the personal injury claim against the out-of-state motorist. He also asked, if permission to sue were to be granted, if Travelers wanted him to prosecute their subrogation claim for property damage.
On September 1, 1966 Mr. West wrote the Travelers' agent as follows:
'I represent Bobby Hugh Crumley whose automobile was hit on October 25, 1965 at about 11' P.M. on Highway 70. He was insured by the Travelers Indemnity Company, and the policy carried, as I understand it, an uninsured motorist provision.
'As a result of my telephone conversation with you I am requesting all the information you can provide me concerning this accident and also as to any information which you might have on the defendant's name and whereabouts.
'We would like to obtain permission from the company under the policy to Start court proceedings against the defendant. I understood in talking to you that your company was trying to collect the collision loss and had located the defendant in Arkansas. If we bring our suit, please advise whether or not you want your collision loss included in the suit which we intend to bring if permitted to do so by your company.
(Emphasis supplied.)
On September 9, 1966, the agent replied:
'This is to acknowledge receipt of your letter dated September 1, 1966 which was written In regard to our telephone conversation on that date.
'We would like very much to have you represent The Travelers Insurance Company in a recovery attempt for the $540.00 collision payment under this insured's policy and this will be done on a continued (sic) fee basis.
'Also in regard to your request concerning the owner of the other vehicle involved we are showing this owner to be as follows: Elmer F. Kuske, Route 2, Box 406, Little Rock, Arkansas.
'Immediately following receipt of this letter, you should have sufficient information concerning the details of this accident to help you in your recovery attempt.
If I may be of any further help, please feel free to call upon me at your convenience.' (Emphasis added.)
On October 12, 1966, West filed suit in the Circuit Court of Wilson County, asking $50,000.00 damages. Process was served upon the Secretary of State. Travelers was not notified of the filing, and was not given copies of the process.
On April 6, 1968 a declaration was filed, no copy being sent to Travelers.
On April 5, West wrote to Travelers' agent:
The above was the first communication with Travelers since the letter of September 1, 1966. But, even though the agent was in Nashville, and could have reached West by phone to talk about the case, he made no effort to do so.
Upon hearing of the cause on April 22, 1966, a jury was waived and the deposition of Crumley's physician, which had been taken ex parte and without notice to Travelers, was presented, together with Crumley's testimony. A default judgment was entered nunc pro tunc for the trial date, against the defendants for $5,000.00 personal injuries and $796.80 for property damage.
On June 19, 1968 West wrote Travelers' agent:
'I took judgment against Elmer F. Kuske and Robert Daughenbaugh in the amount of $5,000 for personal injuries and $796.80 property damage in Lebanon, Tennessee. I have run an execution in Wilson County which was returned with no property to be found in the county belonging to the defendants. It was necessary that I non-suit as to T. C. DeBosier since your information was that he did not own the truck at the time of the accident. We need the help of your Little Rock office in attempting to find and running an execution against Kuske and Daughenbaugh.
'The policy of Mr. Bobby Hugh Crumley of course provides under Part I for protection against uninsured motorists, and I have been unable to find that the defendants were...
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