Glover v. Tennessee Farmers Mut. Ins. Co.

• Decision Date: 07 June 1971
• Citation: 468 S.W.2d 727,225 Tenn. 306,3 Pack 306
• Parties: , 225 Tenn. 306 Vera K. GLOVER and Husband, William Howard Glover, Appellants, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Appellee.
• Court: Tennessee Supreme Court

Page 727

468 S.W.2d 727

3 Pack 306, 225 Tenn. 306

Vera K. GLOVER and Husband, William Howard Glover, Appellants, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Appellee.

Supreme Court of Tennessee.

June 7, 1971.

James F. Schaeffer, of Schaeffer & Kee, Memphis, for appellants.

William I. McLain, Memphis, for appellee.

OPINION

HUMPHREYS, Justice.

The sole question presented by this appeal is whether the uninsured motorist statute, §§ 56--1148 through 56--1153 T.C.A. authorizes an insured to bring suit on the casualty policy directly against the insurer. The trial judge held on demurrer this could not be done. The insured has appealed and assigned this as error. We affirm the judgment of the trial court.

The Glovers sued Tennessee Farmers alleging that they were insured by four policies of liability insurance issued by that company, and that under the uninsured motorist endorsement they were entitled to recover for serious personal damage sustained by Vera K. Glover, and for loss of services and medical and other related expenses by William Howard Glover, her husband, in a collision with one Ralph Murphy, an uninsured motorist, who negligently caused the collision.

Tennessee Farmers filed what was in effect a plea in abatement and a demurrer, the two grounds amounting to a demurrer making the proposition that the Glovers had no right to bring an action directly against it for uninsured motorist benefits. This demurrer was sustained and we now have the case on the single question first mentioned.

As stated, we are of opinion the trial court properly disposed of the case, for reasons which we shall state.

It should first be noted that, although the suit is brought against Tennessee Farmers as a result of the uninsured motorist endorsement, the right to sue the insurer directly is not sought to be sustained by any provision in the insurance policy. There is no allegation in the declaration that the policies contain any stipulation authorizing a direct suit. And, in fact, the insurance policies are not even before the Court. The right to sue the insurer directly is predicated entirely on the contention that this is authorized by the uninsured motorist statute.

We take it to be fundamental in a case where, because of the terms of the insurance contract there is no right to sue the insurer thereon and the reliance for this right is on a statute, the right would have to be given by the statute either expressly or by necessary implication. And with respect to this, noting that the Glovers make no reference to any particular provision of the statute as satisfying this requirement, we have examined the statute carefully and find nothing in it which even leans in the direction of authorizing such a suit. To the contrary, we find provisions which indicate an opposite intention.

The first such provision is that made by § 56--1153. This code section invalidates insurance contract provisions for arbitration of uninsured motorist claims, and sets out the course of procedure whereby an insured can reduce an uninsured motorist claim to judgment. ¹ As we read the code section it suggests no alternative to the procedure there established. And, while it might be argued (we think without warrant) that the language 'if any action is instituted against the owner and operator of an insured motor vehicle,' permits an alternative course of action, we are compelled to read the words 'if any action' as amounting to 'when any action'. This interpretation is forced by the fact that the legislature, while in the very act of setting up procedure for recovery on uninsured motorist endorsements, although it of necessity knew how to do this by direct suit, made no such provision.

This conclusion that § 56--1153 provides the sole court remedy, is sustained by the further provision of the code section 'that the evidence of service upon the insurance carrier shall not be made a part of the record'. Here we have clear evidence of a legislative intention that the fact of insurance cannot be interjected as a prejudicing factor in uninsured motorist litigation.

So, we ask, if the language used to set up the procedure is expressly limited so as not to permit the fact of insurance to appear, how can it be said with any reasonableness that two or three words can be picked out of the statute and given the effect of permitting a suit directly against the insurer; whereby the very condition expressly provided against will be the more evident? The answer must be against such an interpretation.

Another statute provision indicating an intention contrary to that insisted upon by the Glovers is § 56--1151. ² This code section gives the insurer the right of subrogation with respect to any settlement or judgment recovered by the insured against the uninsured motorist. Since this code section does not provide for subrogation except where the insurer has paid off a settlement or judgment recovered by the insured against the uninsured motorist, and there would be no right of subrogation in a case where an insured recovered a judgment on an insurance policy against his insurer, and no right in the insurer to proceed against the uninsured motorist on any other basis, it necessarily follows that the statute cannot be construed as the Glovers insist. So to do would deprive the insurer, by an unsupported interpretation, of the right of subrogation expressly granted by the statute. This cannot be done.

Finally, there is the provision in § 56--1148 ³ that the uninsured motorist coverage made mandatory by this code section is 'for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom;'. While it may be argued that this phrase supports the right to sue the insurer, since the tortious infliction of injury would result in legal entitlement to damages without judgment, still, it cannot be denied that the limitation of this duty of the insurer is to furnish 'protection', and this means 'protection' as defined by the statute, which is liability to pay the judgment the insured recovers from the uninsured motorist. This interpretation of the 'protection' the insurer must provide is supported, not only by the fact that casualty insurers against motor vehicle injury loss are not customarily parties to the action in which the loss to be protected against is determined, but, by the interpretation we have given the other provisions of the Uninsured Motorist Act. We quote from a case discussing a similar statute:

'* * * Subsection (a) of that Code section, as previously quoted, requires that the insurance company afford coverage against any loss substained by the insured as the result of an accident involving an uninsured automobile, which loss the insured 'shall be legally entitled to recover as damages from the owner or operator thereof.' This language cannot be construed other than as imposing upon the insured's insurer the duty of assuming the position of an insurer of the uninsured motorist's legal liability as against any loss sustained by the against such uninsured motorist. We deem the language quoted as equivalent to a requirement that the defendant insurer pay such sums as such uninsured motorist would be legally liable to pay to its insured up to the limits required by the statute.

'Legal liability means, with respect to insurance contracts, a liability which the courts of justice will enforce as between parties litigant. Abbott v. Aetna Cas. & Surety Co., D.C.Maryland, 42 F.Supp. 793, 806; Globe & Republic Ins. Co. v Independent Trucking Co., Okl., 387 P.2d 644, 646. Substantially to the same effect see the ruling of the Supreme Court in Arnold v. Walton, 205 Ga. 606, 611, 54 S.E.2d 424. It is fundamental that the legal liability of one person to another can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction. Code § 110--501. No mere action against the insurance company to which the known uninsured motorist is not a party and in which could not be made a party (Arnold v. Walton, supra) could adjudicate this question so as to affect the legal liability of the uninsured motorist to the insured.' State Farm Mutual Automobile Ins. Co. v. Girtman, 113 Ga.App. 54, 147...