Hudson et al v. State Farm Mutual Automobile Insurance Company
Filing
37
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 10/23/13. (ABF)
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
FAYE HUDSON and husband,
WILLIAM HUDSON,
Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY and
JOHN DOE,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
No. 3:12-CV-83
MEMORANDUM OPINION
This civil action is before the court for consideration of “Defendant State Farm
Mutual Automobile Insurance Company’s Motion for Summary Judgment” [doc. 12].
Plaintiffs have filed a response [docs. 19, 20, 21, 24, 25], and defendant State Farm Mutual
Automobile Insurance Company (“State Farm”) has submitted a reply [doc. 29]. State Farm
has also filed a supplemental brief [doc. 36].1
Oral argument is unnecessary, and the motion is ripe for the court’s
determination. For the reasons that follow, the motion will be granted. However, this case
will not be completely dismissed since two minor claims remain.
1
Pursuant to the magistrate judge’s order granting plaintiffs’ motion to amend the complaint
[doc. 33], the parties were given leave to supplement their briefing on the motion for summary
judgment.
I.
Background
On March 22, 2010, plaintiff Faye Hudson was operating her vehicle when she
stopped suddenly and was struck from behind. The driver of the vehicle that hit plaintiff’s
vehicle came to plaintiff’s window and asked if she was alright. They exchanged a few
words and pulled their vehicles to the side of the road. When plaintiff suggested that they
needed to report the accident by calling 911, the other driver requested that plaintiff not call
911 because plaintiff’s vehicle was not damaged and he worked at a body shop where repairs
could be made to his vehicle that was damaged. At that point, plaintiff had not gotten out of
her car. When plaintiff insisted that the accident be reported, the other driver returned to his
car ostensibly to obtain insurance information. However, he drove away, and was never
identified.
At the time of the accident, plaintiffs’ policy provided coverage for “medical
expenses incurred because of bodily injury that is sustained by an insured and caused by a
motor vehicle accident.” (Emphasis in original). The limit on such payments was $1,000.
The policy also included uninsured motorist coverage that provided in relevant part:
Under Uninsured Motor Vehicle Coverage (Bodily Injury),
we will pay compensatory damages for bodily injury an insured
is legally entitled to collect from the owner or driver of an
uninsured motor vehicle. The bodily injury must be:
a.
sustained by an insured, and
b.
caused by an accident that involves the operation,
2
maintenance, or use of an uninsured motor vehicle as a
motor vehicle. (Emphasis in original).
Plaintiff reported the accident and possible personal injury to her insurance
carrier, defendant State Farm, on the same day the accident occurred. Arrangements were
made for a vehicle inspection, but after that plaintiff had no contact with State Farm until
October 2010. At that time, plaintiff was provided information concerning the medical
payment coverage that included the $1,000 limit and that it dealt with “necessary medical
treatment resulting from the accident.” Authorization forms were also sent to plaintiff to
further the claim investigation. In a letter dated January 17, 2011, State Farm notified Mrs.
Hudson regarding the statute of limitations (“SOL”) applicable in Tennessee. The letter
states in relevant part:
Please be advised the one-year Statute of Limitations, as
provided by Tennessee state law, expires for your claim on
March 22, 2011[.] This means you will not be able to maintain
a cause of action for your bodily injury claim after March 22,
2011 if your claim has not been concluded or if you have not
filed suit against our insured by that date.
On January 18, 2011, Mrs. Hudson saw Brent Webb at the Park Med Urgent
Care Center. Plaintiff reported to him that she had been in a rear-end motor vehicle accident
in March 2010 and had not seen a doctor since the accident. He saw the plaintiff only once
and diagnosed a “lumbar torsion.” In his deposition he testified from his record notes that
plaintiff’s “sacroiliac unevenness can be due to many things, a car wreck is one of them.”
Beginning on January 19, 2011, Faye Hudson began physical therapy and received multiple
3
therapy sessions through May 3, 2011. “Explanation of Review” documents contained in the
court record indicate that State Farm classified these services as “SF148 This procedure was
performed for a condition not related to the motor vehicle accident.”
State Farm
subsequently denied Faye Hudson’s claim on the basis that her alleged injuries were not the
result of the accident on March 22, 2010.
On March 17, 2011, Mrs. Hudson filed a civil warrant in general sessions court
in Blount County, Tennessee naming “State Farm Insurance Companies” as the defendant.
She sought “damages from auto accident medical expenses to include future therapy.” On
May 4, 2011, plaintiff filed a second civil warrant that included William Hudson as a
plaintiff and “John Doe” as a defendant. That warrant included allegations “for all damages
to both Plaintiff”s (sic) arising out of motor vehicle accident occuring (sic) on March 22,
2010 . . . All damages for bad faith against Defendant State Farm & breach of contract.” By
an agreed order, the case was transferred to Blount County Circuit Court on August 16, 2011.
Plaintiffs filed a motion to amend on December 2, 2011, which was granted by an agreed
order on January 25, 2012. The amended complaint was filed on February 7, 2012. The
amended complaint asserted negligence claims against John Doe and sought personal injury
damages from John Doe. William Hudson asserted a loss of consortium claim. Also
included were references to claims under the Tennessee Consumer Protection Act (“TCPA”),
bad faith pursuant to Tennessee Code Annotated 56-7-105 and breach of contract.
4
On February 21, 2012, State Farm removed the case to this court [doc. 1], after
which plaintiffs moved to remand the case [doc. 3]. The court denied plaintiffs’ motion to
remand [doc. 9]. Plaintiffs were again permitted to amend their complaint [doc. 33], and as
a result, the parties were permitted to file a supplemental brief in support of their positions
concerning the motion for summary judgment [docs. 33, 36].
II.
Standard of Review
State Farm’s motion is brought pursuant to Federal Rule of Civil Procedure 56,
which governs summary judgment. Rule 56(a) sets forth the standard governing summary
judgment and provides in pertinent part: “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The procedure set out in Rule 56(c) requires that
“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion.”
This can be done by citation to materials in the record, which include depositions,
documents, affidavits, stipulations, and electronically stored information. Fed. R. Civ. P.
56(c)(1)(A). Rule 56(c)(1)(B) allows a party to “show[] that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”
5
After the moving party has carried its initial burden of showing that there are
no genuine issues of material fact in dispute, the burden shifts to the non-moving party to
present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec.
Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of
a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). The non-moving party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that party’s favor. Id. at 255. The court determines
whether the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Id. at 251-52.
III.
Analysis
John Doe Claim/One-Year Statute of Limitations/
Tenn. Code Ann. § 20-1-119
The second civil warrant filed by plaintiffs on May 4, 2011, added John Doe
as a defendant. The one-year statute of limitations for personal injury claims, Tennessee
Code Annotated § 28-3-104(a)(1), ran on March 22, 2011, since the accident at issue in this
case occurred on March 22, 2010. State Farm contends that plaintiffs’ claim for uninsured
6
motorist coverage under the policy is time barred since the John Doe defendant was added
after the statute ran. Plaintiffs argue that Tenn. Code Ann. § 20-1-119 extends the statute of
limitations to allow the claim. The court agrees with State Farm that the claims under the
uninsured motorist coverage are time barred.
Tenn. Code Ann. § 56-7-1201 et seq. governs claims against uninsured
motorist carriers. That statute provides in relevant part:
If the owner or operator of any motor vehicle that causes bodily
injury or property damage to a person insured under this part is
unknown and if the insured satisfies all of the requirements of
§ 56-7-1201(e), should suit be instituted, the insured shall issue
a John Doe warrant against the unknown owner or operator in
order to come within the coverage of the owner's uninsured
motorist policy. . . .
Tenn. Code Ann. § 56-7-1206(b). “Where an insured plaintiff fails to assert liability through
this procedure within one year of the incident at issue, that plaintiff is foreclosed from
recovering from the uninsured/underinsured motorist carrier, consistent with the general oneyear statute of limitations on personal injury claims.” Brown v. Webb, No. 3:11-cv-00340,
2012 WL 398327, at *3 (M.D. Tenn. Feb. 7, 2012) (citing Gafford v. Caruthers, No. 91C2709, 1994 WL 420917, at *2 (Tenn. Ct. App. Aug. 12, 1994); Lane v. Montgomery, No.
E2006-01643-COAR3-CV, 2007 WL 1860903, at *4-5 (Tenn. Ct. App. June 28, 2007)).
Plaintiffs’ amendment adding the John Doe defendant was made after the statute of
limitations had run; therefore, the John Doe/uninsured motorist claim is barred and no action
can be maintained against the uninsured motorist carrier, State Farm. Lane, 2007 WL
7
1860903, at *5 (citing Gafford, 1994 WL 420917, at *2) (“This amendment was filed well
outside the period of the one-year statute of limitations; therefore, the plaintiff’s cause of
action against ‘John Doe’ is time-barred. Because the plaintiff no longer has a cause of
action against the unknown tortfeasor, she can no longer maintain an action against [the
insurance carrier] to recover uninsured motorist benefits.”). Thus, unless plaintiffs can meet
their burden of showing an exception to the statute of limitations, the uninsured motorist
claim is time-barred. Shaffer v. Memphis Airport Auth., No. W2012-00237-COA-R9-CV,
2013 WL 209309, at *5 (Tenn. Ct. App. Jan. 18, 2013) (undisputed that plaintiff’s claims
were time-barred unless plaintiff met burden of demonstrating an exception to statute of
limitations).
Plaintiffs contend that Tenn. Code Ann. § 20-1-119 provides an exception and
therefore the statute of limitations was extended 90 days to cover the time of the John Doe
amendment. As discussed below, that statutory provision does not apply in this case. Tenn.
Code Ann. § 20-1-119 provides in relevant part:
(a) In civil actions where comparative fault is or becomes an
issue, if a defendant named in an original complaint initiating a
suit filed within the applicable statute of limitations . . . alleges
in an answer or amended answer to the original or amended
complaint that a person not a party to the suit caused or
contributed to the injury or damage for which the plaintiff seeks
recovery, and if the plaintiff's cause or causes of action against
that person would be barred by any applicable statute of
limitations but for the operation of this section, the plaintiff
may, within ninety (90) days of the filing of the first answer or
first amended answer alleging that person's fault, either:
8
(1) Amend the complaint to add the person as a defendant
pursuant to Tenn. R. Civ. P. 15 and cause process to be issued
for that person. . . .
Tenn. Code Ann. § 20-1-119 (emphasis added).
State Farm initially argues that this statute does not apply because comparative
fault is not an issue in this case. “By its plain terms, Tennessee Code Annotated section 201-119 applies only to civil cases in which ‘comparative fault’ is or becomes an issue.” Curtis
v. G.E. Capital Modular Space, 155 S.W.3d 877, 882 (Tenn. 2005).
In the motion to
dismiss filed in general sessions court, State Farm argued that plaintiffs had not sued an
indispensable party, John Doe, and that the John Doe claim was now time barred. State Farm
did not raise the issue of comparative fault. There is no showing that this case involves
comparative fault or that it involves comparative fault issues as addressed by § 20-1-119.
Further, State Farm correctly argues that the statute requires that the
comparative tortfeasor be identified exclusively in an answer or amended answer. “By its
own terms, § 20-1-119 applies only where ‘a defendant . . . alleges in an answer or amended
answer to the original or amended complaint that a person not a party to the suit caused or
contributed to the injury or damage for which the plaintiff seeks recovery.’ This language
is clear and unambiguous.” Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV, 2008
WL 2219274, at *4 (Tenn. Ct. App. May 29, 2008) (emphasis added). In Grindstaff, the
defendant identified a responsible non-party in a letter to plaintiffs’ attorney that was not
made a part of the defendant’s answer. The court of appeals held that the letter was “simply
9
not the same thing as an ‘answer.’” Id. The court stated that it could not “deviate from the
plain language of the statute” and further concluded, “Again, the language of § 20-1-119 is
explicit and unambiguous: it applies only to answers that point the finger of blame at ‘a
person not a party to the suit.’ This court made clear in McCullough v. Johnson City
Emergency Physicians, P.C., 106 S.W.3d 36, 46 (Tenn. Ct. App. 2002), that this statutory
requirement is to be strictly applied.” Id.; see also Shaffer, 2013 WL 209309 (by its express
terms, section 20-1-119 not triggered by defendant’s response to discovery request).
Plaintiffs’ contention that the motion to dismiss in general sessions court
should be construed as an “appearance and answer” is without merit. Johnson v. Trane U.S.,
Inc., No. W2011-01236-COA-R3-CV, 2013 WL 4436396, at *5 (Tenn. Ct. App. Aug. 19,
2013). In Trane, the defendant had not alleged comparative fault in his answer. The court
of appeals found:
Plaintiff argues that section 20-1-119 should have been
applicable because [defendant] Winfrey argued, in a motion to
dismiss, that Trane was an indispensable party. Plaintiff claims
that “[a]n indispensable party is analogous to a comparative
fault tortfeasor,” and that a motion to dismiss is analogous to an
answer, and therefore, he should have been afforded ninety days
to amend his complaint pursuant to section 20-1-119. We find
no merit in this argument. Our role is to interpret the statute as
written. We cannot re-write or expand it to apply to
circumstances that may be deemed “analogous” to the limited
situation addressed by the statute.
Id. Accordingly, the court finds that § 20-1-119 does not apply in this case, and the John
Doe/uninsured motorist claims are time barred and fail as a matter of law.
10
William Hudson’s Loss of Consortium Claim
William Hudson was added as a plaintiff in the second civil warrant that was
filed on May 4, 2011. State Farm argues that William Hudson’s loss of consortium claim is
barred by the one-year statute of limitations. Plaintiffs simply state that the claim is not
barred because of Tenn. Code Ann. § 20-1-119.
As discussed above, § 20-1-119 does not apply in this case. The provision
does not extend the statute of limitations for the John Doe/uninsured motorist claim or for
the loss of consortium claim. William Hudson’s loss of consortium claim is subject to the
one-year statute of limitations, and it was not timely filed.
In Tennessee, a loss of consortium claim “is ‘derivative’ of the claims of the
injured spouse.” Tangradi v. Baptist Mem’l Hosp. of Union City, No. 1:10-cv-01115-JDBegb, 2012 WL 2681806, at *8 (W.D. Tenn. July 6, 2012). While it is the physical injuries
and incapacities of the spouse that create the loss of consortium claim, the claim is a separate
cause of action independent of the spouse’s right to recover for injuries. Id. (citations
omitted); see also Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App.
1987) (“[T]he right to recover for loss of consortium is a right independent of the [injured]
spouse’s right to recover for the injuries themselves.”). A loss of consortium plaintiff is not
relieved of the statute of limitations because the origin of the claim is a spouse’s injuries.
Strauss v. Ramada Inn E., No. 02A01-9211-CV-00307, 1994 WL 198882, at *1-2 (Tenn.
Ct. App. May 23, 1994). In Strauss, the plaintiff filed suit for injuries resulting from a fall.
11
She filed a voluntary nonsuit and a year later re-filed the lawsuit. Plaintiff then moved to
amend the complaint and add a loss of consortium claim for her husband, which the
defendant objected to as being untimely. The trial court allowed the amendment, but the
court of appeals reversed the trial court’s decision allowing the amendment. The court of
appeals ruled that the husband’s loss of consortium claim was barred because it had not been
brought within the one-year statute of limitations. “Thus, Strauss makes clear that a spouse
suing for loss of consortium cannot avoid dismissal for filing his claim beyond the statute of
limitations simply because his wife’s claim was timely.” Tangradi, 2012 WL 2681806, at
*8.
William Hudson was added as a plaintiff for his loss of consortium claim on
May 4, 2011. The one-year statute of limitations on his and his wife’s claims ran on March
22, 2011. Accordingly, the loss of consortium claim was not brought within the one-year
statute of limitations, and the claim is barred.
Bad Faith Claim - Tenn. Code Ann. § 56-7-105
State Farm argues that the statutory bad faith claim should be dismissed
because plaintiffs did not meet the notice requirement. Plaintiffs contend that making a
claim to the insurance company meets the requirement and also, without citation to authority,
contend that State Farm is estopped from arguing that the formal demand was not made. The
court agrees with State Farm that the claim must be dismissed.
12
“Tenn. Code Ann. § 56-7-105(a) is penal in nature and must be strictly
construed.” Ginn v. Am. Heritage Life Ins. Co., 173 S.W.3d 433, 443 (Tenn. Ct. App. 2004)
(citing Stooksbury v. Am. Nat’l Prop. & Cas. Co., 126 S.W.3d 505, 519 (Tenn. Ct. App.
2003)). To recover a bad faith penalty under the statute, the plaintiffs must prove: “(1) that
the policy became due and payable under its terms; (2) the insured made a formal demand
for payment; (3) sixty days passed from the date of making the demand, unless the insurer
refused to pay the claim prior to the passage of sixty days; and (4) the refusal to pay was in
bad faith.” Taylor v. Standard Ins. Co., No. 08-2585 V, 2009 WL 113457, at *5 (W.D.
Tenn. Jan. 13, 2009) (citing Minton v. Tenn. Farmers Mut. Ins. Co., 832 S.W.2d 35, 38
(Tenn. Ct. App. 1992)).
None of plaintiffs’ several complaints contain allegations concerning the
specific elements of statutory bad faith claim, and plaintiffs have not presented any evidence
to establish that a formal demand was made and that the sixty-day time period was met. The
denial of their claims and the filing of a civil warrant are insufficient to meet the formal
notice and sixty-day requirements under the statute. Nothing in the record demonstrates that
the plaintiffs have established these requisite elements. The purposes for the formal demand
under § 56-7-105 are: “(1) the insurance company has an opportunity to investigate the
insured’s claim and loss; (2) the insurance company is aware or has notice from the insured
of the insured’s intent to assert a bad faith claim, if the disputed claim is not paid, and (3) 60
days has expired after the insured gives such notice before filing suit.” Hampton v. Allstate
13
Ins. Co., 48 F. Supp. 2d 739, 747 (M.D. Tenn. 1999). Plaintiffs have not established all of
the requisite elements to sustain a claim for bad faith under § 56-7-105. Accordingly, the
claim will be dismissed.
Equitable Estoppel
Plaintiffs allege in the most recently amended complaint that State Farm misled
them into believing that their claims would be settled and that the claims were denied right
before the statute of limitations ran. Thus, they contend that equitable estoppel should be
applied to prevent State Farm from invoking the statute of limitations on their claims, John
Doe/uninsured motorist and loss of consortium. State Farm argues that equitable estoppel
does not apply as plaintiffs cannot demonstrate the required elements. The court agrees.
Equitable estoppel is generally a disfavored doctrine under Tennessee law.
Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291, at *2 (Tenn. Ct. App.
Apr. 6, 1999) (citing Sexton v. Sevier Cnty., 948 S.W.2d 747, 750 (Tenn. Ct. App.
1997)(citing ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163, 170 (Tenn. Ct. App. 1995);
Robinson v. Tenn. Farmers Mut. Ins. Co., 857 S.W.2d 559, 563 (Tenn. Ct. App. 1993)). The
party invoking the doctrine has the burden of proving the elements applicable to the party to
be estopped which include:
(1) Conduct which amounts to a false representation or
concealment of material facts, or, at least, which is calculated to
convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
14
to assert; (2) Intention, or at least expectation that such conduct
shall be acted upon by the other party; [and] (3) Knowledge,
actual or constructive of the real facts.
Toney, 1999 WL 188291, at *3 (quoting Werne v. Sanderson, 954 S.W.2d 742, 745 (Tenn.
Ct. App. 1997)(quoting Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct.
App. 1990))). In addition, there are elements related to the party invoking the doctrine that
must be proven which include
(1) his or her lack of knowledge and of the means of knowledge
of the truth as to the facts in question;
(2) his or her reliance upon the conduct of the party who is
estopped; and
(3) action by the invoking party based thereon of such a
character as to change that party’s position prejudicially.
Id. (quoting Sexton, 948 S.W.2d at 751 (citing ACG, 912 S.W.2d at 170; Robinson, 857
S.W.2d at 563; Gitter v. Tenn. Farmers Mut. Ins. Co., 450 S.W.2d 780, 783 (Tenn. Ct. App.
1969)).
In the court’s opinion, plaintiffs cannot demonstrate a lack of knowledge and
means of knowledge of the truth and also that action by State Farm caused them to change
their position prejudicially. Plaintiffs had the opportunity to have full knowledge of the
terms of their insurance policy by reading it and the declaration pages that were sent every
year. Mrs. Hudson admittedly did not read the policy or the declaration pages. Clearly, she
did so at her own risk. Had she read the terms of the policy, she would have learned that the
injuries for which she and her husband sought payment had to be caused by an automobile
accident. Faye Hudson did not seek treatment for her alleged injury until ten months after
15
the accident and saw Dr. Webb at the Park Med Urgent Care Center one time. He concluded
that her condition could be caused by several things, one of which was an automobile
accident. Further, plaintiffs were duly notified of the SOL and had the opportunity to consult
with and obtain an attorney’s advice concerning the status of their claims and how best to
proceed. They discussed this fact among themselves, and in fact Faye Hudson contacted a
law firm and legal aid concerning her situation. Both plaintiffs had the opportunity and
means to obtain knowledge about their policy, their rights under the policy, and what course
they should follow.
In addition, plaintiffs were not led to change their position prejudicially. Faye
Hudson, after seeking legal advice, chose to file her lawsuit in general sessions court naming
State Farm as the defendant. She did so within the SOL period; thus, she was not prejudiced
by losing her right to sue over the denial of her claim. Her failure to initially name her
husband as a plaintiff or include John Doe as a defendant was a choice she made, as she had
the opportunity and means to obtain the necessary legal advice and representation, and in fact
did make contact with two sources for legal advice. Thus, the court finds no basis for the
application of equitable estoppel.
Tennessee Consumer Protection Act Claim
Insurance companies through their acts and practices are subject to application
of the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. § 47-18-101 et seq.
16
Leverette v. Tenn. Farmers Mut. Ins. Co., No. M2011-00264-COA-R3-CV, 2013 WL
817230, at *20 (Tenn. Ct. App. Mar. 4, 2013) (citing Myint v. Allstate Ins. Co., 970 S.W.2d
920, 925 (Tenn. 1998)). “In order to recover under the TCPA, the plaintiff must prove: (1)
that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the
TCPA and (2) that the defendant’s conduct caused an ‘ascertainable loss of money or
property, real, personal, or mixed, or any other article, commodity, or thing of value wherever
situated.’” Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005) (quoting
Tenn. Code Ann. § 47-18-109(a)(1)); see also D’Alessandro v. Lake Developers, II, LLC,
No. E2011-01487-COA-R3-CV, 2012 WL 1900543, at *9 (Tenn. Ct. App. May 25, 2012).
Plaintiffs contend in the amended complaint that they were misled about their
claims being honored and that the claims were denied shortly before the statute of limitations
ran. State Farm argues that plaintiffs’ testimony regarding the unfair and deceptive nature
of the SOL letter cannot establish that they suffered any harm. The court concludes that
plaintiffs did not sustain an ascertainable loss and therefore cannot demonstrate a TCPA
claim. “[I]n order to recover under the Tennessee Consumer Protection Act, the alleged
‘unfair or deceptive act or practice’ must in fact cause the damages of which the plaintiff
complains.” White v. Early, 211 S.W.3d 723, 743 (Tenn. Ct. App. 2006).
To the extent plaintiffs’ TCPA claim is based upon language in the SOL letter,
the claim has no basis. While the language referred to filing suit “against our insured,”
plaintiff Faye Hudson admitted that such a result would be “silly” and she never believed
17
that she would be required to sue herself. Further, the letter makes no reference to
proceeding pro se or not obtaining counsel. When the letter was sent, over two months of
the statute of limitations period remained, which was ample time for plaintiffs to retain
counsel and file suit if necessary. Both plaintiffs discussed obtaining counsel, and Faye
Hudson spoke with a law firm and legal aid before proceeding to file suit pro se in general
sessions court. Faye Hudson chose to file suit as she did, without an attorney and in general
sessions court.
The other allegations asserted by plaintiffs also fail to show that they suffered
an ascertainable loss. Had Mrs. Hudson read her policy along with the declaration pages she
received twice a year, she would have been aware that the entitlement to medical payments
was based upon a showing that the injuries sustained were the result of a motor vehicle
accident. The “Explanation of Review” documents contained in the file show that Fay
Hudson’s treatments at the Therapy Center from January 19, 2011, through May 3, 2011,
were coded by State Farm as “SF148 This procedure was performed for a condition not
related to the motor vehicle accident.” Doctor Webb testified in his deposition that he saw
Faye Hudson once, ten months after the accident, and he noted that plaintiff had not seen an
doctor since the accident. Dr. Webb “diagnosed [plaintiff] with a lumbosacral torsion on the
right.” He testified that a sacroiliac unevenness can have many causes, and an automobile
accident is one of them.
18
State Farm ultimately determined that Mrs. Hudson’s condition was not related
to the automobile accident and denied the claim. Plaintiff’s ability to obtain payment for her
claim was always based upon the terms of the policy and an adequate showing that the
claimed injury was caused by a motor vehicle accident. While her claim was denied, Mrs.
Hudson maintained her right to file suit to contest the denial, which in fact she did within the
statute of limitations period. She was provided with notice of the SOL deadline more than
two months prior to its expiration, and she filed within the deadline, thus sustaining no loss
of rights. Where and how she filed suit, as well as the parties she named or failed to name,
were her decision. She had access to legal advice and even contacted two sources for such
advice. Simply having her claim denied for the reasons given is not sufficient to demonstrate
an ascertainable loss. She retained her right to sue over the denial of the claim within in the
statute of limitations period, and did so. Neither Faye Hudson nor her husband can
demonstrate an ascertainable loss to sustain a TCPA claim. Accordingly, the claim will be
dismissed.
Remaining Claims
State Farm’s motion for summary judgment does not reference the breach of
contract claim or the claim for property damage to plaintiffs’ vehicle, “not to exceed $2,500.”
After the court’s rulings as set forth above, any breach of contract claim by Faye Hudson is
limited to the medical payments coverage under the policy that has a maximum amount of
19
$1,000. Mrs. Hudson testified that she was told by State Farm that she would be paid the
$1,000 medical payment. While the documentary evidence in the file does not support
plaintiff’s contention, the court does not weigh the evidence or judge the credibility of
witnesses on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Any breach of contract claim by Faye Hudson based upon the uninsured motorist coverage
is time barred. As to the alleged property damage, any breach of contract claim for such
damage that is based upon the uninsured motorist coverage is also time barred. Any breach
of contract claim for the property damage can only possibly be based upon the collision
coverage under the policy, and is limited to the amount sought in the complaint.
IV.
Conclusion
For the reasons stated herein, “Defendant State Farm Mutual Automobile
Insurance Company’s Motion for Summary Judgment” [doc. 12] will be granted. However,
the case will not be completely dismissed as there are claims discussed herein that were not
raised in the motion for summary judgment that remain for resolution to the extent explained
by the court. An order consistent with this opinion will be entered.
ENTER:
s/ Leon Jordan
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?