Little v. State Farm Mut. Ins. Co.
| Decision Date | 18 December 1989 |
| Parties | Mary LITTLE, Plaintiff-Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant-Appellee. 784 S.W.2d 928 |
| Court | Tennessee Court of Appeals |
Ronald J. Attanasio, Leibowitz and Cohen, Knoxville, for plaintiff-appellant.
Fred G. Musick, Jenkins & Jenkins, Knoxville, for defendant-appellee.
In this action against an uninsured motorist, the trial judge dismissed the defendant insurance company from the action on the ground that plaintiff had failed to comply with the requirements of T.R.Civ.P Rule 3. 1 An appeal was granted to review this action pursuant to T.R.A.P., Rule 9.
Plaintiff was a passenger in an automobile driven by Donald Wayne Jennings, who had uninsured motorist coverage through defendant. As a result of the accident, plaintiff sued vehicle operators, Helen Barnett and Peter Williams, and the uninsured motorist carrier was served with the complaint, pursuant to the uninsured motorist statute. Service on Williams was returned marked "unable to locate". After a nonsuit plaintiff timely refiled the complaint against these defendants and the complaint was served on State Farm. The attempted service against Williams again was returned marked "unable to locate". 2
Defendant Barnett and State Farm were served and filed answers. Subsequently, State Farm moved to dismiss, alleging plaintiff's failure to obtain issuance of "new process", as required by T.R.Civ.P.Rule 3, barred the action against Williams, the uninsured motorist, and State Farm. The trial judge agreed and dismissed the action as to State Farm.
On appeal, plaintiff insists she is entitled to proceed against State Farm on the authority of T.C.A. Sec. 56-7-1206(d). 3 We agree.
This court in Lady v. Kregger, 747 S.W.2d 342 (Tenn.App.1987), addressed the relation between this section of the uninsured motorist statute and the procedural rule on service. Generally, the uninsured motorist statute does not permit a direct action against an insurance carrier, see Glover v. Tennessee Farmers Mutual Insurance Co., 225 Tenn. 306, 468 S.W.2d 727 (1971), but Kregger noted the unusual situation where a plaintiff knows the identity of the uninsured motorist but is unable to obtain service and followed the literal interpretation of the statute, saying:
Subsection (d) is the procedure required to perfect a direct action against the uninsured motorist carrier when the whereabouts of the alleged uninsured motorist are unknown.... Suspension of the T.R.C.P. ... 3 requirement ... is consistent with the legislative intent to provide an efficient procedure. Id., at 345.
The construction urged upon us by defendant would hold a plaintiff hostage to the requirement of obtaining service on the uninsured motorist or reissuing process from time to time indefinitely, which was not the intention of the legislature.
Accordingly, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.
SANDERS, P.J. (E.S.), and ANDERSON, J., concur.
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