§49.17 Uninsured Motorist Cases – Service of Process

The Case: Fagg v. Buettner , No. M2007-02748-COA-R3-CV, 2008 WL 4876535 (Tenn. Ct. App. Nov. 10, 2008).

The Basic Facts: "In this action against an uninsured motorist, the trial judge dismissed the defendant insurance company from the lawsuit on the ground that plaintiff failed to fulfill her obligation to serve process upon the uninsured motorist pursuant to Tenn. Code Ann. § 56-7-1206. The defendant insurance company filed a motion to dismiss after plaintiff failed to file a fourth summons on the uninsured motorist within one year of the last unsuccessful attempt when plaintiff's first three attempts to obtain service of process on the uninsured motorist were returned 'not to be found in my county.' The trial court found that plaintiff's claims against the uninsured motorist were barred by the statute of limitations, dismissed the claims against the motorist, and subsequently granted the defendant insurance company's motion to dismiss." 2008 WL 4876535 at *1.

The Bottom Line:

• "Ms. Fagg contends the trial court erred by dismissing her Complaint and insists that she is entitled to proceed against State Farm on the authority of Tenn. Code Ann. § 56-7-1206. We agree." Id. at *2 (footnote omitted).
• "Tenn. Code Ann. § 56-7-1206(d) provides the following:

  In the event that service of process against the uninsured motorist, which was issued to the motorist's 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 the case."

  Id.
• "This court has previously addressed the relationship between this statute and the procedural rule on service. Little v. State Farm Mut. Ins. Co., 784 S.W.2d 928, 929 (Tenn. Ct. App. 1989); Lady v. Kregger, 747 S.W.2d 342, 343-45 (Tenn. Ct. App. 1987). The uninsured motorist statute does not permit a direct action against an insurance carrier, Little, 784 S.W.2d at 929; nevertheless, the uninsured motorist statute, Tenn. Code Ann. § 56-7-1206, 'allows for actions to be pursued against the uninsured motorist carrier as the sole defendant where ... service of process upon the motorist sought to be charged is returned 'not to be found.'' Lady, 747 S.W.2d at 344 (citing Tenn. Code Ann. § 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.' Id." Id.
• "In Lady, the plaintiffs filed suit against two individual defendants for injuries sustained in an automobile accident and process was returned unserved with the notation 'not to be found.' Id. at 343. The plaintiffs' uninsured motorist carrier, Transamerica, was subsequently added and service of process issued. Id. Although the two individual defendants' whereabouts were ascertained over a year later, at which time they were served with alias process, no alias process had been issued against the individual defendants since the return of the original complaint and summons. Id. The individual defendants then filed motions for summary judgment on the grounds that the action against them was barred by Tenn. R. Civ. P. 3, and the uninsured motorist carrier subsequently filed a motion on its behalf contending 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. Id. The trial court granted both motions. Id.
  
  In holding it was error for the trial court to dismiss the action against the uninsured motorist carrier, this court found that the plaintiffs had 'perfected their action against Transamerica as uninsured motorist carrier by complying with the conditions of Tenn. Code Ann. § 56-7-1206.' Id. at 344. This court further explained:

  The intention of the Legislature in enacting T.C.A. § 56-7-1206 was to provide an efficient procedure whereby the Plaintiffs could obtain complete relief when injured by an uninsured motorist. 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. Subsection (e) sets out the procedure required to add the alleged uninsured motorist to the subsection (d) proceeding when his whereabouts are ascertained. Suspension of the T.R.C.P. Rule 3 requirement, that alias process be issued every six months or that the action be filed yearly, during the subsection (d) proceeding, is consistent with the legislative intent to provide an efficient procedure.

  Id. at 345." Id. at *2-*3.
• "In a second uninsured motorist case in which service on the individual defendant was twice returned marked 'unable to locate,' this court vacated the trial court's dismissal of the action against the uninsured motorist carrier. Little, 784 S.W.2d at 929. The trial court found that the plaintiff's failure to obtain issuance of 'new process' as required by Tenn. R. Civ. P. 3 barred the action against the uninsured motorist and the uninsured motorist carrier. Id. In vacating the trial court, this court explained that requiring the plaintiff to obtain service on the uninsured motorist or 'reissuing process from time to time indefinitely' was 'not the intention of the legislature.' Id. We find the decisions in Lady and Little to be controlling in the present case." Id.
• "Ms. Fagg made three attempts to serve process on Ms. Buettner, all of which were unsuccessful. The first attempt was made on Ms. Buettner at the address listed in the police accident report. Because Ms. Buettner was not found at the address provided on the police report, Ms. Fagg's counsel inquired with the Department of Safety to obtain another address where Ms. Buettner might be served. The Department of Safety provided Ms. Fagg's counsel with the address in Bellevue, which counsel used in his attempts to obtain service via the alias and pluries summons. Although Ms. Fagg used the Sheriff's Department and a private process server in her attempts to obtain service of process on Ms. Buettner at two different addresses, each of the three summons [sic] were returned with notation to the effect that Ms. Buettner was not to be found. As this Court explained inLady, Ms. Fagg was not required to continue her attempts to serve process when previous dutiful attempts were returned 'not to be found.'" Id.
• "State Farm's contention that Ms. Fagg had a never ending duty to continue her efforts to serve Ms. Buettner is based on three cases, each of which is distinguishable from the present case. In the first case, Ballard v. Ardenhani, 901 S.W.2d 369 (Tenn. Ct. App.1995), the issue was whether plaintiff's failure to comply with Rule 3 was excused by the provisions of Tenn. Code Ann. § 56-7-1206(d) and (e). This court found that the plaintiff in Ballard had failed to establish that the motorist involved in the collision was uninsured. Ballard, 901 S.W.2d at 371. Further, we found that the fact that no process was served upon the uninsured motorist carrier until more than one year after the initial suit was filed indicated that when the plaintiff filed the initial suit he did not intend to rely on uninsured motorist coverage. Id." Id. (footnote omitted).

  "The second case relied upon by the trial court and State Farm is also distinguishable from the present case. In Winters v. Jones, 932 S.W.2d 464, 465 (Tenn. Ct. App.1996), the plaintiff issued process against the executor of the deceased tortfeasor's estate. However, the plaintiff only attempted to serve the executor's attorney, not the executor himself. Winters, 932 S.W .2d at 465. The attorney refused to accept service of process for the executor, and no further attempts at service on the executor were made. Id. In affirming the trial court's dismissal of the plaintiff's action, we found the plaintiff could not proceed directly against the uninsured motorist carrier pursuant to Tenn. Code Ann. § 56-7-1206(d) because 'even though [the plaintiff] managed to elicit a 'not to be found in my county' response on the return of process,she did not serve, or attempt to serve, the responsible party at his last known address.' Id. at 466 (emphasis added). Winters is, therefore, distinguishable because Ms. Fagg not only attempted to serve the responsible party at her last known address, but in fact made three attempts at two different addresses obtained from the police accident report and the Department of Safety." Id. at *4.

• "In the third case, Webb v. Werner, 163 S.W.3d 716, 717 (Tenn. Ct. App.2004), the plaintiff obtained the issuance of summons to be served on the uninsured motorist; however, there was no evidence that the plaintiff made any effort to obtain service of process on the motorist's last known address. Webb, 163 S.W.3d at 719. Furthermore, no additional summons was issued for almost two years. Id. In affirming the trial court's finding that the plaintiff's action was barred by the one year statute of limitations, we found that while Tenn. Code Ann. § 56-7-1206 (d) allows a plaintiff to proceed directly against an uninsured motorist carrier under certain circumstances even if the uninsured motorist is never successfully served with process, see Brewer v. Richardson, 893 S.W.2d 935 (Tenn.1995), a plaintiff is still required to make a duly diligent effort to serve process on the uninsured motorist, and when this diligent effort is lacking and an unreasonable amount of time has passed, a plaintiff cannot use the uninsured motorist statute to avoid the requirements of Tenn. R. Civ. P. 3. Id. at 720-21." Id. (footnote omitted).
• "The contention advanced by State Farm in this case '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.' Little, 784 S.W.2d at 929. Ms. Fagg made a diligent effort to serve process on the uninsured motorist. In fact, she made three diligent efforts, all of which were returned with a notation to the effect of 'not to be found.' Requiring Ms. Fagg to continue to issue service of process in order to proceed against the uninsured motorist carrier as the sole defendant would undermine the purpose of Tenn. Code Ann. § 56-7-1206 of providing an efficient procedure by which Ms. Fagg may obtain relief." Id.

Other Sources of Note: Tenn. Code Ann. § 56-7-1203.

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