Lady v. Kregger
| Decision Date | 13 November 1987 |
| Citation | 747 S.W.2d 342 |
| Court | Tennessee Court of Appeals |
| Parties | Gary A. LADY and Elizabeth Lady, Plaintiffs-Appellants, v. Kenneth D. KREGGER and Kimberly G. Spurling and Transamerica Insurance Group, Defendants-Appellees. 747 S.W.2d 342 |
Gary L. Adkins, Knoxville, for plaintiffs-appellants.
Debra L. Fulton, Knoxville, for Kregger and Spurling.
Linda J. Hamilton Mowles, Knoxville, for Transamerica Ins. Group.
This case involves the interpretation of T.R.C.P. Rule 3 in conjunction with claims against an uninsured motorist carrier pursuant to T.C.A. Sec. 56-7-1206.
On February 1, 1985, Defendants Kregger and Spurling were involved in an automobile accident with the Plaintiffs. The Plaintiffs filed suit for their injuries against Kregger and Spurling on July 15, 1985. Process was returned unserved on November 17, 1985. On February 13, 1986, the Plaintiffs were granted an order allowing an amendment to their original complaint naming Transamerica Insurance Group as a Defendant to whom service of process was then issued. The order set out that Transamerica was being joined pursuant to T.C.A. Sec. 56-7-1206 as the uninsured motorist carrier for the Plaintiff. Transamerica served an answer on the Plaintiffs and proceeded with discovery as a party defendant per T.C.A. Sec. 56-7-1206. The whereabouts of Defendants Kregger and Spurling was ascertained on August 4, 1986, and they were served with alias process on August 11, 1986. 1
On September 8, 1986, Kregger and Spurling filed motions for summary judgment asserting the action against them was barred by T.R.C.P. Rule 3. Transamerica then filed motion for summary judgment on its behalf averring that if no cause of action existed against the original Defendants due to the running of the statute of limitations then it too should be dismissed from the lawsuit. The Trial Court granted both motions from which the Plaintiffs have appealed.
The thrust of the Plaintiffs' issues on appeal is that the guidelines of T.C.A. Sec. 56-7-1206 supersede those of T.R.C.P. Rule 3. The Plaintiffs contend that as such, their action against the Defendants is not barred due to their compliance with T.C.A. Sec. 56-7-1206.
The relevant provisions of T.C.A. Sec. 56-7-1206 provides as follows:
56-7-1206. Service of process--Actions by insurers--John Doe warrants--Arbitration.--(a) Any insured intending to rely on the coverage required by this part shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this subsection shall prevent such owner or operator from employing counsel of his own choice; provided, further, that the evidence of service upon the insurance carrier shall not be made a part of the record.
....
(d) In the event that service of process against the uninsured motorist, which was issued to his last known address, is returned by the sheriff or other process server marked, "Not to be found in my county," or words to that effect; or if service of process is being made upon the secretary of state for a nonresident uninsured motorist and the registered notice to the last known address is returned without service on the uninsured motorist, the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in such a case.
(e) In the event the uninsured motorist's whereabouts is discovered during the pendency of the proceedings, an alias process may issue against the uninsured motorist. In such a case, the uninsured motorist shall be allowed a reasonable time within which to plead to the original process and then the case may proceed against uninsured motorist as if he was served with process in the first instance.
The Statute thus allows for actions to be pursued against the uninsured motorist carrier as the sole defendant where, as is the case here, service of process upon the motorist sought to be charged is returned "Not to be found." T.C.A. Sec. 56-7-1206(d). The only other condition to the uninsured motorist carrier assuming the defense is that service of process against the uninsured motorist carrier must have been executed pursuant to the guidelines set out in the section. Under T.C.A. Sec. 56-7-1206(a), service of process, on an uninsured motorist carrier requires merely service of process "as though such insurance company were a party defendant."
On February 13, 1986, the Plaintiffs amended their original complaint to add Transamerica as uninsured motorist carrier defendant and duly served it with process. As service of process had been returned "not to be found" on the motorists sought to be charged November 17, 1985, the Plaintiffs had thus perfected their action against Transamerica as uninsured motorist carrier by complying with the conditions of T.C.A. Sec. 56-7-1206.
It was error for the Trial Court to dismiss the action against Transamerica after the conditions of the section had been satisfied as to maintaining an action against an uninsured motorist carrier as sole defendant.
Transamerica has raised the defense on appeal of failure to serve it as a party ...
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