Gillard v. Taylor, No. W2008-00937-COA-R9-CV (Tenn. App. 3/18/2009), W2008-00937-COA-R9-CV.

CourtCourt of Appeals of Tennessee
PartiesWAYNE B. GILLARD v. JAMES A. TAYLOR, ET AL.
Docket NumberNo. W2008-00937-COA-R9-CV.,W2008-00937-COA-R9-CV.
Decision Date18 March 2009

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WAYNE B. GILLARD
v.
JAMES A. TAYLOR, ET AL.
No. W2008-00937-COA-R9-CV.
Court of Appeals of Tennessee, at Memphis.
February 19, 2009 Session.
Filed March 18, 2009.

Direct Appeal from the Circuit Court for Shelby County; No. CT-001065-04; Rita L. Stotts, Judge.

Judgment of the Circuit Court Reversed and Remanded

Gary H. Nichols, Michael R. Flynn, Memphis, TN, for Appellant, Nationwide Insurance Company.

Eugene A. Laurenzi, Memphis, TN, for Appellee, Wayne B. Gillard.

J. Steven Stafford, J., delivered the opinion of the court, in which Alan E. Highers, P.J., W.S. and Holly M. Kirby, J., joined.

OPINION

J. STEVEN STAFFORD, J.


Police officer who was injured while driving his patrol car brought this action against his automobile insurer to recover uninsured motorist benefits under his personal policy. The trial court denied insurers' motion for summary judgment, finding that the regular use exception found in the policy was ambiguous. The insurance company appeals. We reverse and remand.

The relevant facts of this case are undisputed. Appellee Wayne Gillard began working as a police officer for the City of Memphis in August of 1999. On April 21, 2002, Officer Gillard was assigned to patrol the 221st Ward in a 1998 Crown Victoria police cruiser (the "Cruiser") owned by the City of Memphis. The record indicates that Officer Gillard would drive the Cruiser whenever it was assigned to him, which was approximately sixty percent of the time. If Officer Gillard was not assigned the Cruiser, he would be assigned another cruiser from the fleet.

On April 21, 2002, during his shift, Officer Gillard's Cruiser was involved in a three-car accident, which was caused by Defendant James Taylor. At the time of the accident, Mr. Taylor was uninsured. As a result of the accident, Officer Gillard sustained injuries to his neck. The City of Memphis paid Officer Gillard's medical expenses in the amount of $41,000, and also paid Officer Gillard his regular salary while he was recuperating.

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Following the accident, Officer Gillard gave notice under the uninsured motorist coverage provision of a Nationwide Insurance Company ("Appellant") policy. This policy was held by Officer Gillard's wife's uncle, Purnell Blackwell. Officer Gillard was a named insured on Mr. Blackwell's policy. Nationwide denied coverage to Officer Gillard on grounds that his use of the City of Memphis Cruiser constituted a "regular use" and was therefore excluded from coverage under the Nationwide uninsured motorist policy.

On February 25, 2004, Officer Gillard filed a personal injury lawsuit against Mr. Taylor, and a declaratory judgment action against Nationwide. The declaratory judgment action gives rise to the instant appeal. Nationwide answered the complaint on May 4, 2004, and the trial court issued an order severing the declaratory judgment action from the personal injury suit against Mr. Taylor.

On May 1, 2006, Nationwide filed a motion for summary judgment in the declaratory judgment action. Officer Gillard filed a response in opposition to Nationwide's motion on May 31, 2006. [The first hearing on the motion for summary judgment was held on February 23, 2007. The parties were given an opportunity to file supplemental memoranda of law in support of their respective positions on the summary judgment motion. A second hearing was held on April 5, 2007. At this hearing, the trial court again requested more research and advised that judgment would be reserved until further hearing. On June 3, 2007, the parties were again before the court for a hearing on the motion for summary judgment.] On August 14, 2007, the trial court entered its order, denying Nationwide's motion for summary judgment. On August 24, 2007, Nationwide filed a motion for interlocutory appeal, which motion the trial court granted by order of November 16, 2007. This Court granted Nationwide's Tenn. R. App. P. 9 application for interlocutory appeal on September 11, 2008.

Nationwide raises two issues for review as stated in its brief:

1. Whether the trial court erred in denying the motion for summary judgment of Nationwide by holding as a matter of law that the regular use exclusion contained in the Nationwide uninsured motorist insurance policy is ambiguous.

2. Whether the trial court erred in holding as a matter of law that the offset provision contained in the Nationwide insurance policy is not applicable to this case.

It is well settled that a motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable

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inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our 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 material, that there is a genuine, material fact dispute to warrant a trial. 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 (citations omitted).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Because only questions of law are involved, there is no presumption of correctness regarding a trial court's grant or denial of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

In Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758 (Tenn.2006), the Tennessee Supreme Court restated the following principles that guide our courts in the interpretation of an insurance policy:

In interpreting an insurance contract, we must determine the intention of the parties and give effect to that intention. Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005); Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). An insurance policy must be interpreted fairly and reasonably, giving the language its usual and ordinary meaning. Parker v. Provident Life & Acc. Ins. Co., 582 S.W.2d 380, 383 (Tenn.1979). When there is doubt or ambiguity as to its meaning, an insurance contract must be construed favorably to provide coverage to the insured. Christenberry, 160 S.W.3d at 494. However, the contract may not be rewritten by the Court. Id.; see also Tenn. Farmers Mut. Ins. Co. v. Witt, 857 S.W.2d 26, 32 (Tenn.1993).

Naifeh, 204 S.W.3d at 768.

The policy at issue here reads, in relevant part, as follows:

COVERAGE EXCLUSIONS

This coverage does not apply to:

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* * *

4. Bodily injury suffered while occupying a motor vehicle:

a. owned by;

b. furnished to; or

c. available for the regular use of you or a relative, but not insured for Auto Liability coverage under this policy. It also does not apply to bodily injury from being hit by any such motor vehicle.

Tenn. Code Ann. §56-7-1201(a)(2) provides that any named insured may reject uninsured motorist coverage. This provision of the Tennessee Code has been found to be valid and enforceable. See, e.g., Weiss v. State Farm Fire & Cas. Co., 107 S.W.3d 503, 505 (Tenn. Ct. App. 2001). In Terry v. Aetna Cas. & Sur. Co., 510 S.W.2d 509 (Tenn. 1974), our Supreme Court held that Tennessee's uninsured motorist statutes do not provide for broad coverage, but effectuate a limited and narrow purpose. Id. at 513-14. As discussed by our Supreme Court in Hill v. Nationwide Mut. Ins. Co., 535 S.W.2d 327 (Tenn. 1976):

Authorities accepting the [narrow coverage theory] point out that vehicular liability insurance is ordinarily written upon and follows particular scheduled vehicles. It is not written upon named individuals, and is not like general health or accident insurance coverage. The liability policy covers a scheduled vehicle, and extends its protection, through omnibus clauses, not only to the named insured but to members of his family and other persons using the vehicle with permission, subject to prescribed conditions and exclusions.

Hill, 535 S.W.2d at 220 (footnote omitted). Moreover, this Court has held that a "regular use" exclusion in insurance policies does not contravene public policy. Shepherd v. Fregozo, 175 S.W.3d 209, 217 (Tenn. Ct. App. 2005) (citing Sandoz v. State Farm Mut. Auto. Ins. Co., 620 So.2d 441 (La.App. 3 Cir.1993)).

In Shepherd, this Court addressed a factually similar situation to the one at bar, in which a police officer was injured in an automobile accident while on-duty in his assigned cruiser. In affirming the trial court's grant of summary judgment in favor of the insurer on grounds that the regular use exclusion was enforceable, the Shepherd Court stated:

[T]he standard "regular use" exclusion "predates the advent of uninsured motorist coverage, it being born and matured by cases interpreting basically the same exclusionary language as to liability

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coverage. The Fourth Circuit Court of Appeals provides the readily apparent purpose of the exception, which is standard in automobile liability policies and in policies providing uninsured motorist coverage.

The great weight of authority is in accord with the interpretation of this provision by Judge Chestnut in Aler v. Travelers Indemnity Co., D....

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