Burns v. Aetna Casualty & Surety Co.

741 S.W.2d 318, 1987 Tenn. LEXIS 1075
CourtTennessee Supreme Court
DecidedNovember 16, 1987
StatusPublished
Cited by14 cases

This text of 741 S.W.2d 318 (Burns v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Aetna Casualty & Surety Co., 741 S.W.2d 318, 1987 Tenn. LEXIS 1075 (Tenn. 1987).

Opinion

OPINION

HARBISON, Chief Justice.

Appellee recovered judgment in a jury trial against an uninsured motorist and the owner of an uninsured vehicle which he was driving. Recovery was made for the wrongful death of the husband of appellee and for her own personal injuries received in a head-on collision between the automobile being driven by appellee’s husband and that being driven by the uninsured motorist, Herman L. Lucas.

Appellant is the uninsured motorist carrier for Textron, Inc., a major corporation having its principal office in Providence, Rhode Island. The husband of appellee, Gary L. Burns, was an employee of a subsidiary of Textron and was operating a company-leased vehicle at the time of the accident. The vehicle was regularly assigned to him. Both he and his wife, the appellee, were residents of Tennessee at the time of the accident and the vehicle which was assigned to them was principally garaged in this state.

Textron, Inc., is a large conglomerate operating nationwide, and appellant was the underwriter for its vehicle fleet liability coverage. The policy of insurance also provided uninsured motorist coverage, as well [319]*319as comprehensive coverage and medical expense benefits.

The appellee’s husband, Mr. Burns, was, of course, an additional insured under this policy, his employer Textron, Inc., being the named insured. No question is made concerning the extension of coverage to him under the various features of the policy, but the policy limit of uninsured motorist coverage available is in dispute.

The policy provided a single limit of liability insurance coverage of one million dollars for bodily injury and property damage arising out of a single accident. The fleet of vehicles covered by the policy was approximately one thousand six hundred, these vehicles being garaged in almost every state of the United States.

There were forty-nine special endorsements to the policy, thirty-three of which dealt exclusively with uninsured motorist coverage in the various states. The endorsement pertaining to Tennessee was numbered forty-six. Other endorsements dealt with various features of the policy and in some instances dealt with special insurance requirements of individual states.

The uninsured motorist coverage specified for the State of Tennessee was a single limit of $25,000 combined coverage for bodily injury and physical damage. Specific limits were scheduled for each of the other states, ranging from a low of $10,-000/$20,000 for the State of Maryland to $75,000 single limit coverage for bodily injury in the State of New Hampshire.

The policy provided coverage for the period January 1, 1983 through December 31, 1983. The date of the accident was October 1, 1983.

There is no question but that the policy would have provided only $25,000 coverage for the injuries sustained by appellee and her husband except for the provisions of certain Tennessee statutes relied upon by appellee. Under those statutes both the trial court and the Court of Appeals held that the applicable limits for uninsured motorist coverage were one million dollars, the same as the policy limits for general liability insurance coverage. Appellant insists that the applicable limit under the statutes and under the policy provisions was $25,000.

After careful consideration, we are of the opinion that the position of appellant is correct, and the judgments of the lower courts are accordingly modified.

A. The Factual Background

There is almost no dispute as to the facts concerning the underwriting involved in this case. The policy in question was a renewal policy. Appellant Aetna Casualty and Surety Company had underwritten the liability and related casualty coverage for Textron, Inc., and its subsidiaries for many years prior to 1983. During each year of coverage the policy provisions and the amount of insurance coverage to be purchased were discussed between the insurance carrier and the insured, and the policy was a negotiated policy each year. During the year 1982 the proof shows that there were two separate meetings between representatives of the insurance carrier, the underwriting broker and the insured, and there were numerous other communications among these parties before the policy terms were agreed upon. The policy was written upon a retrospective basis — that is, an estimated premium was paid in advance, but this premium was subject to adjustment at the end of the policy period in accordance with the loss experience. In effect, the named insured, Textron, Inc., would have to share in the loss experience or in the premium cost if limits of liability greater than those actually negotiated were held to be applicable in any given state or under any given circumstances. The trial court deemed this immaterial, but in our opinion it is most significant because, if the coverage is held to be other than as provided in the explicit terms of the policy, the named insured must bear at least some of the additional premium cost or some of the related loss. The record shows that there was a separate contract or agreement between Atena and Textron, Inc., concerning retrospective adjustment of costs and premiums, but this was not [320]*320placed in evidence, and its terms are not before us.

The trial judge held a separate non-jury hearing concerning the uninsured motorist coverage. The evidence showed that either the insurance broker or Textron, Inc., had provided each additional insured, such as Mr. Burns, with an “accident kit” advising each insured that coverage was available through Aetna Casualty and Surety Com-, pany and giving information as to the location of various claims offices throughout the United States to which an accident could be reported. The kit contained the commercial fleet policy number together with forms for reporting an accident. It contained no information concerning any of the policy limits for the various coverages provided.

At some time before his accident in October 1983 the husband of appellee had been provided with such a kit, although whether this was done during the particular policy year in question or at some previous time does not appear from the record. The kit contained the name of the underwriting broker, Frank B. Hall & Company of Boston, Massachusetts, as well as addresses of the various Aetna claims offices.

The record is silent as to whether a new or different policy number was assigned to the 1983 renewal policy, or whether that policy number was a continuation of the number assigned to previous policies. The testimony was that Aetna had underwritten the casualty coverage for Textron for some twenty to thirty years before 1983.

Mr. Thomas E. Quinn, manager of underwriting for national accounts for Aetna, testified at the hearing. Parts of his discovery deposition were read in evidence by counsel for appellee, and he was then examined by counsel for appellant. He testified that he had been the supervising underwriter in charge of negotiating and issuing the casualty policies for Textron for 1983. When asked who was present at those negotiations, he testified:

“A. Myself, two of my superiors who worked for the Aetna, two other members of our Boston National Accounts Office, and three members of the broker of Frank B. Hall, and three members of the insured, Textron.”

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Bluebook (online)
741 S.W.2d 318, 1987 Tenn. LEXIS 1075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-aetna-casualty-surety-co-tenn-1987.