Janice Young v. John Doe, - Concurring

Court of Appeals of Tennessee

Janice Young v. John Doe, - Concurring

DecidedJune 9, 1999

Docket01A01-9810-CV-00517

StatusPublished

This text of Janice Young v. John Doe, - Concurring (Janice Young v. John Doe, - Concurring) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Janice Young v. John Doe, - Concurring, (Tenn. Ct. App. 1999).

Pincite

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE ______________________________________________

JANICE YOUNG,

Plaintiff, FILED Marion Circuit No. 11241 Vs. C.A. No. 01A01-9810-CV-00517

JOHN DOE, ET AL, June 9, 1999 Defendants. ____________________________________________________________________________

FROM THE MARION COUNTY CIRCUIT COURT Cecil Crowson, Jr. THE HONORABLE THOMAS W. GRAHAM, JUDGE Appellate Court Clerk

Edwin Z. Kelly, Jr.; Kelly & Kelly of Jasper For Appellee, State Farm Insurance Company

Jerry S. Sloan of Chattanooga For Appellant, Janice Young

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

This is an uninsured motorist insurance case. Plaintiff/Appellant, Janice C. Young,

appeals the order of the trial court granting summary judgment to the unnamed

Defendant/Appellee, State Farm Mutual Automobile Insurance Company (State Farm). At all material times, Young had a liability insurance policy with State Farm that

included uninsured motorist coverage. On February 11, 1994, she was involved in a vehicular

accident on Interstate 24 in Marion County, Tennessee. On November 9, 1994, Young filed suit

for damages against an unknown motorist, John Doe, and, pursuant to the uninsured motorist

statute and her policy of insurance, served the uninsured motorist carrier, State Farm. In her

complaint, Young alleges that while she was traveling in her van on Interstate 24 in the outside

lane of travel, she was forced to maneuver her vehicle part way off the highway and into the right

most emergency lane by an unknown driver operating a tractor-trailer who veered into her lane

of travel while attempting to pass her. As a result, Young avers that she was forced into the rear

of another tractor-trailer located in the emergency lane which was driven by Keith Merle

Grayson. Young sustained personal injuries as a result of the accident. The complaint also

contained Young’s oath that “the statements contained in the foregoing complaint are true to the

best of my knowledge, information and belief.”

On February 9, 1995, Young filed an amended complaint adding Grayson, Bill

Rohrbaugh, and Don Dau Trucking, Inc. as defendants. The amended complaint avers that

Grayson, while attempting to reenter traffic from the emergency lane, veered into her lane of

travel and, along with the actions of the unknown driver, caused the accident.

On January 4, 1995, State Farm answered the complaint, and, after discovery depositions

were taken, filed a motion for summary judgment. During the hearing on the motion for

summary judgment, the trial court granted Young leave to supplement the record by filing any

affidavit desired. Shortly after Young notified the trial court that she did not intend to

supplement the record, the trial court, on September 29, 1997, entered an order granting

summary judgment. Young then filed a “Motion to Alter or Amend Judgment or Alternatively

to Reconsider” in which, relying upon her verified complaint, she asserted that there are issues

of material fact precluding summary judgment. On July 22, 1998, the trial court denied Young’s

motion and entered an order granting State Farm a final judgment pursuant to Tenn. R. Civ. P.

54.02. Young has appealed, and the only issue presented for review is whether the trial court

erred in granting summary judgment to State Farm.

A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

2 as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

Although this case involves a “phantom driver,” State Farm concedes in its brief that

there could be a genuine issue of material fact concerning the existence of such a “phantom

driver” and therefore summary judgment on this issue is inappropriate. State Farm did not seek

summary judgment because of the lack of proof concerning a “phantom driver,”1 but its motion

1 The existence of a “phantom driver” must be established pursuant to the provisions of T.C.A. § 56-7-1201 (e) (1994) and (Supp. 1998), which provides:

(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless: (1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or (B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle; (2) The insured or someone in the insured’s behalf shall have reported the accident to the appropriate law enforcement

3 for summary judgment was premised on the lack of proof that the uninsured motorist

proximately caused the accident in which Young was involved.

In support of its motion for summary judgment, State Farm relies upon the deposition

testimony of Young and Grayson which, according to State Farm, indicate that the unknown

driver did not do anything that contributed to the cause of the accident.

Grayson testified during his deposition, in pertinent part, as follows:

Q. Okay. And your truck would normally have the rearview mirror on the left-hand side of your cab that you’d be looking into?

A. Yes.

Q. Do you recall -- as you were moving very slowly, do you recall in the mirror actually seeing a vehicle or vehicles in the mirror prior to the collision?

A. Yes, two vehicles.

Q. Okay.

Free access — add to your briefcase to read the full text and ask questions with AI