Session March 29, 2022
This
appeal concerns a dispute over insurance coverage. Amy Higgs
("Higgs") individually and on behalf of her
deceased son, Cayson Emmit Turnmire ("Cayson")
sued David Payne ("Payne") for the negligent
maintenance of his property in relation to Cayson's death
by drowning in Payne's swimming pool. Tennessee Farmers
Mutual Insurance Company ("Tennessee Farmers")
Payne's homeowners' insurance carrier, filed a
complaint for declaratory judgment in the Circuit Court for
Shelby County ("the Trial Court") against Payne and
Higgs. Tennessee Farmers argued that, due to an exclusion in
Payne's homeowners' insurance policy against claims
"arising from or in connection with the swimming
pool," it is not obligated to defend or indemnify Payne.
Tennessee Farmers and Higgs filed cross motions for summary
judgment. The Trial Court granted Tennessee Farmers'
motion and denied Higgs' motion. Higgs appeals. Citing
the concurrent cause doctrine, Higgs argues that Tennessee
Farmers must defend and indemnify Payne as, apart from the
pool, certain non-excluded causes contributed to Cayson's
death-namely, Payne's failure to fence or gate his
property. We hold, inter alia, that each of
Higgs' alleged non-excluded concurrent causes are bound
up inextricably with Cayson's tragic drowning in
Payne's pool, an excluded cause under Payne's
insurance policy. We affirm.
Tenn
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
D.
Michael Swiney, C.J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee,
J., joined.
OPINION
D.
MICHAEL SWINEY, CHIEF JUDGE
In June
2017, Higgs, individually and on behalf of her deceased son
Cayson, sued Payne for the negligent maintenance of his
property in relation to Cayson's death by drowning in
Payne's swimming pool. According to her complaint, on
June 10, 2016, Higgs was house-sitting with five-year-old
Cayson at her parents' residence in Millington,
Tennessee. As Higgs did laundry, Cayson wandered into
Payne's yard, climbed up on his unsecured deck, and
drowned in Payne's swimming pool. In August 2017,
Tennessee Farmers, Payne's insurance carrier, filed a
complaint for declaratory judgment against Payne and Higgs in
the Trial Court. Tennessee Farmers asserted that, based on an
exclusion contained in Payne's policy, it had no
obligation to defend or indemnify Payne in this matter. The
exclusion states:
PERSONAL LIABILITY AND MEDICAL PAYMENTS TO OTHERS COVERAGE
PROVIDED BY THIS POLICY SHALL NOT PROVIDE PROTECTION FOR ANY
CLAIMS OR DAMAGES ARISING FROM OR IN CONNECTION WITH THE
SWIMMING POOL ON THE INSURED PREMISES.
Tennessee
Farmers and Higgs filed cross motions for summary judgment.
In
April 2021, the Trial Court entered an order granting
Tennessee Farmers' motion for summary judgment and
denying Higgs' motion for summary judgment. The Trial
Court stated, in pertinent part:
The parties concede that there are no material facts in
dispute[.] As such, the Court only needs to determine which
party is entitled to summary judgment as a matter of law. The
question of the extent of insurance coverage is a question of
law involving the interpretation of contractual language[.]
An insurance policy is to be interpreted as any other
contract, and must be interpreted according to its plain
terms, considering the entire contract when determining the
meaning of any or all of its parts[.] A Court must read an
insurance contract as a lay person would read it. Where an
all risk insurance policy is involved, the insurer must show
that an exclusion
applies in order to avoid liability and exclusionary clauses
are to be strictly construed against the insurer. The terms
and provisions of a policy drafted by the insurance company
must be construed strongly in favor of the insured[.] An
insurer's duty to defend is determined solely by an
examination of the allegations of the underlying complaint[.]
Consequently, the Court needs only to determine if movant is
entitled to a judgment as a matter of law after looking at
the complaint and the relevant insurance policy. The
Complaint is predicated upon negligence by Defendant as it
relates to the pool where the Complaint alleges
• Defendant Payne's home had an aboveground swimming
pool in the backyard.
• Defendant Payne did not have a fence or gate around
the pool or his property. Rather, he had a deck that
partially surrounded the aboveground pool, providing easy
access to the pool[.]
• The child wandered in Defendant's backyard,
climbed up and fell into the aboveground pool and drowned.
• The child's death was proximately caused by
Defendant's failure to maintain his property and pool in
a reasonable and safe manner and condition.
• Defendant had a duty to maintain his property and pool
in a reasonable and safe manner and condition. Defendant knew
or should have known that his pool would entice or lure
children to enter onto his property unsupervised[.]
• Defendant's breaches of duty include but are not
limited to:
o Failing to have a fence around his pool and/or property,
o Failing to have a gate to prevent access to his pool,
o Failing to secure, lock, or remove the steps to the
aboveground pool to prevent access to the pool,
o Failing to have a pool alarm,
o Failing to exercise reasonable and ordinary care under the
circumstances,
o Such other negligent acts or omissions as may be shown at
trial; and o Each of the above said acts of negligence
directly and proximately caused the death of the minor
child[.]
• Defendant is guilty of violating Tenn[.] Code Ann[.],
§68-14-801 et Seq "Katie Beth's Law" (Pool
Alarms) and said violation constitutes negligence per se and
was a direct and proximate cause of the minor child's
death and injuries[.]
• Defendant is guilty of violating Shelby County's
Uniform Development Code §2.7.6 Swimming Pools[.] [S]aid
violation constitutes negligence per
se and was a direct and proximate cause of the minor
child's death and injuries. In the alternative[, ]
Defendant was guilty of violating Shelby County Zoning
Ordinance §27(B)(4) which was applicable to the subject
pool[.] [S]aid violation constitutes negligence per se and
was a direct and proximate cause of the minor child's
death and injuries.
• Defendant was guilty of violating International
Building Code 2009 Section 3109, Swimming Pool Enclosures and
Safety Devices[.] [S]aid violation constitutes negligence per
se and was a direct and proximate cause of the minor
child's death and injuries.
At the time of the incident, based on the relevant undisputed
facts:
• Defendant's property was insured by an all-risk
policy (as conceded by the parties) with Tennessee Farmers
Mutual Insurance Company for which he was paying a premium
and the Policy contains an Amendatory Endorsement that
provided in pertinent part
AMENDATORY
ENDORSEMENT TF7 (01/1996)
Effective Date of this Endorsement 02-16-2012 Applicable to
Unit 1
Subject to all other terms of the policy to which this
endorsement is attached, you and we agree that this
endorsement is a part of the policy when it is designated in
the Declarations and you pay any premium due. Any term in the
policy in conflict with any provision in this endorsement
shall be of no effect and inapplicable.
The provisions of this endorsement are specifically stated in
the Declarations and identified with this endorsement number.
Description:
1 PERSONAL LIABILITY AND MEDICAL PAYMENTS TO OTHERS COVERAGE
PROVIDED BY THIS POLICY SHALL NOT PROVIDE PROTECTION FOR ANY
CLAIMS OR DAMAGES ARISING FROM OR IN CONNECTION WITH THE
SWIMMING POOL ON THE INSURED PREMISES.
All other terms of the policy remain unchanged.
Viewing the complaint and evidence in the light most
favorable to Respondent Higgs, the claims in the Complaint
arise from or in connection with the swimming pool on
Respondent David Payne's property and although they may
have been otherwise covered under the general terms of the
"all-risk policy" it is clear that the endorsement
expressly excludes coverage, and the Court finds no ambiguity
in the words "arising from or in connection with the
pool" or its applicability in this case[.] Further, it
is of no consequence that the policy does not explicitly
provide an exclusion concerning coverage for claims or
damages arising from or in connection to Defendant's
decks or other defects or deficiencies on Respondent
Payne's property such as lack of fencing because these
alleged breaches of duty are linked to the swimming pool i[.]
e., only at issue because of the pool and are not just a mere
connection[.] There is no allegation that these alleged
breaches of duty were defective any way other than as it
relates to [the] pool and … there are no allegations
that injuries would have resulted if there was no pool[.] If
we were talking about a situation in which the child climbed
up the stairs to the deck of the pool and tripped on a broken
board of the deck and hit his head causing injuries and then
fell into the pool and drowned, we might have a different
result even though there was a pool involved, because those
injuries might be interpreted as having two causes with one
not arising from or in connection with the pool but rather
the deck[.] In this case, there is no other separate cause or
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