The full case caption appears at the
end of this opinion. This Court granted Donald E. Griffin’s application for permission to appeal to consider:
[FOOTNOTE 1]whether language in the uninsured motorist insurance policy waived the requirements of service. under Tenn. Code Ann. � 56-7-1206(a); and (2) whether strict application of the statute to barGriffin’s claim is contrary to the public policy of this State as expressed in Alcazar v. Hayes, 982S.W.2d 845 (Tenn. 1998) and Bolin v. Tennessee Farmers Mut. Ins. Co., 614 S.W.2d 566 (Tenn.1981). We conclude that the language of the insurance policy does not waive the statutoryrequirement of service and that strict application of the statute is not contrary to public policy.Accordingly, the judgment of the Court of Appeals upholding the Chancellor’s grant of summaryjudgment is affirmed. BACKGROUND On May 14, 1994, the appellant was involved in an automobile accident on I-65 in MauryCounty in which his car was struck from the rear by a vehicle driven by Richard Vaughn. Vaughnhad liability insurance coverage with Allstate Insurance Company (“Allstate”). Allstate reimbursedGriffin for the property damage to his car caused by the accident; however, Griffin eventuallyobtained an attorney and filed suit in Maury County Circuit Court to recover damages for personalinjuries he sustained in the accident. Allstate provided counsel to defend Vaughn. Although Shelteralso retained counsel for the limited purpose of protecting its subrogation claim for medicalpayments made to Griffin under the medical payments coverage, Griffin’s attorney agreed to protectShelter’s subrogation interest at one hundred percent. Therefore, Shelter’s attorney did not activelyparticipate in the Maury County lawsuit. Moreover, it is undisputed that Griffin did not serve Shelterwith a copy of the process in accordance with Tenn. Code Ann. � 56-7-1206(a). It is also undisputed that Griffin did not forward to Shelter any of the “legal papers” relating to his lawsuitagainst Vaughn.Griffin’s suit against Vaughn proceeded to trial, and on May 31, 1996, the jury returned averdict for Griffin in the amount of $225,000. After the judgment was rendered, Vaughn’s attorneyinformed Griffin’s attorney that Vaughn had only $50,000 of liability insurance coverage.Thereafter, in early October of 1996, Griffin’s attorney notified Shelter in writing for the first timethat Griffin intended to make a claim under his uninsured motorist policy and provided Shelter witha copy of the judgment against Vaughn. After Shelter denied Griffin’s claim under the uninsuredmotorist policy, Griffin filed this lawsuit against Shelter in the Chancery Court for Davidson Countyon April 1, 1997. On August 29, 1997, Shelter filed a motion for summary judgment. Griffin responded andalso moved for summary judgment. By an order entered November 3, 1997, the Chancellor grantedShelter’s motion for summary judgment and dismissed Griffin’s complaint. Griffin appealed theChancellor’s decision, and the Court of Appeals affirmed the trial court’s finding that summaryjudgment was appropriate since Griffin had failed to comply with Tenn. Code Ann. � 56-7-1206(a).For the following reasons, we affirm the judgment of the Court of Appeals. STANDARD OF REVIEW The standards governing an appellate court’s review of a summary judgment motion are wellsettled. Our inquiry involves purely a question of law; therefore, we review the record without apresumption of correctness to determine whether the absence of genuine and material factual issuesentitle the movant to judgment as a matter of law. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); McClung v. Delta Square Ltd.Partnership, 937 S.W.2d 891, 894 (Tenn. 1996); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);Tenn. R. Civ. P. 56.03. STATUTORY REQUIREMENT We begin our analysis of the issues in this appeal by considering Tenn. Code Ann. � 56-7-1206(a), the statutory provision requiring service of process upon the uninsured motorist carrier, andthe judicial decisions which have applied and interpreted this provision. The statute provides that[a]ny insured intending to rely on the coverage required by this part shall, if anyaction is instituted against the owner and operator of an uninsured motor vehicle,serve a copy of the process upon the insurance company issuing the policy in themanner prescribed by law, as though such insurance company were a partydefendant. Such company shall thereafter have the right to file pleadings and takeother action allowable by law in the name of the owner and operator of the uninsuredmotor vehicle or in its own name; provided, that nothing in this subsection shallprevent such owner or operator from employing counsel of the owner’s own choice;and provided further; that the evidence of service upon the insurance carrier shall notbe made a part of the record. The intention of the General Assembly in enacting this statute was to provide an efficientprocedure to allow persons to obtain complete relief from their uninsured motorist policy wheninjured by an uninsured motorist who is financially unable to respond in damages. See Brewer v.Richardson, 893 S.W.2d 935, 938 (Tenn. 1995); Winters v. Estate of Jones, 932 S.W.2d 464, 466(Tenn. Ct. App. 1996) perm. app. denied (Tenn. Oct. 7,1996); Lady v. Kregger, 747 S.W.2d 342,345 (Tenn. Ct. App. 1987).In Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306, 468 S.W.2d 727 (Tenn. 1971),this Court held that, absent a specific policy provision authorizing a direct action, the uninsuredmotorist statute does not permit a plaintiff to bring suit directly against an uninsured motorist carrier.Our decision in Glover disallowing such direct actions was prompted by a number of considerations,including: “(1) the insurer’s right to remain anonymous; (2) the effect of direct suits on the insurer’sstatutory right of subrogation; and (3) the nature of the “protection” afforded by the uninsuredmotorist statutes.” Brewer, 893 S.W.2d at 937. The Glover court addressed this latter considerationand summarized its holding in the following manner: The whole intent and purpose of the uninsured motorist act is, in essence, to provideprotection by making the insurance carrier stand as the insurer of the uninsuredmotorist, with two necessary consequences. (1) The suit has to be brought againstthe uninsured motorist, with the fact of insurance excluded as a possible prejudicingfactor, as in any other such case; and (2) the insurance company is bound by thejudgment rendered in that suit, to the extent of its policy limits, where it is affordedthe statutory opportunity to defend the uninsured motorist.Glover, 468 S.W.2d at 730 (emphasis in original). Although we did not explicitly address in Glover the statutory service requirement at issuein this appeal, the Court of Appeals has squarely faced the issue and held that an insured muststrictly comply with the statute’s requirement relating to service of process. In Eyman v. KentuckyCentral Ins. Co., 870 S.W.2d 530 (Tenn. Ct. App. 1993) perm. app. denied (Tenn. Jan. 31, 1994),the Eymans were involved in an automobile accident with an uninsured motorist. The Eymanssought compensation under the uninsured motorist policy issued to them by Kentucky CentralInsurance Company (“Kentucky Central”). When settlement negotiations with Kentucky Centralbroke down, the Eymans filed suit against the uninsured motorist. The Eymans mailed a letter, alongwith a copy of the complaint and an unsigned copy of the summons to Kentucky Central. However,no summons was issued or process served on Kentucky Central pursuant to Tenn. R. Civ. P. 4.02.Accordingly, Kentucky Central did not file an answer or otherwise appear in the action. TheChancellor entered a default judgment against the uninsured motorist in the amount of $125,000, andthereafter, the Eymans filed suit seeking a declaratory judgment against Kentucky Central for$125,000. The Chancellor granted the Eymans’ motion for summary judgment, but the Court ofAppeals reversed upon finding that the Eymans had failed to strictly comply with the statutoryrequirement of service. In so holding, the Court of Appeals first stressed that the plain language of Section 1206(a)directs that the plaintiff shall “serve a copy of the process upon the insurance company issuing thepolicy in the manner prescribed by law, as though such insurance company were a party defendant.”Eyman, 870 S.W.2d at 531. Although acknowledging that Kentucky Central no doubt understoodthe ramifications of the letter sent by the Eymans’ attorney, the Court of Appeals found that theletter was insufficient to “constitute compliance with the statute.” Id. at 532. The Court of Appealsemphasized that “the legislature has seen fit to set up procedural rules in order to protect the rightsof litigants. It is the responsibility of this court to enforce those rules.” Id. Our review of the foregoing authorities clearly establishes that in the absence of a policyprovision, a plaintiff generally may not institute a direct action against an uninsured motorist carrier,and a plaintiff intending to rely upon uninsured motorist coverage must strictly comply with thestatutory requirements relating to service of process. With these general principles in mind, we.-5-proceed to the issues in this appeal. POLICY PROVISION In this Court, Griffin concedes that he did not serve Shelter in accordance with Tenn. CodeAnn. � 56-7-1206(a), but he argues that summary judgment is inappropriate because a specificprovision in his uninsured motorist policy waives the statutory requirement of service. The policyprovision upon which Griffin relies contains the following language: . . . No judgment on a suit against a person or firm causing the bodily injury willdetermine whether we will have to pay, or how much, unless we have consented inwriting that suit be brought. According to Griffin, this policy provision should be construed to permit a direct action againstShelter following entry of a judgment against an uninsured motorist if Shelter consented in writingto the insured’s institution of the lawsuit against the uninsured motorist. Griffin argues that Shelterconsented in writing to the institution of the action against Vaughn when the attorney Shelterretained to protect its subrogation interest made a written offer to assist Griffin’s attorney in theprosecution of the action against Vaughn. In contrast, Shelter argues that Griffin is reading the policy provision in isolation and out ofcontext. Shelter asserts that the policy provision upon which Griffin relies actually establishes anadditional condition that must be satisfied and that the provision does not waive Griffin’s obligationto also comply with the requirements of Tenn. Code Ann. � 56-7-1206(a). Since the evidence isundisputed that Griffin did not comply with the requirements of Section 1206(a), Shelter argues thatthe lower courts correctly granted summary judgment. This Court has previously recognized that “[a]n insurance policy is a contract of adhesiondrafted by the insurer.” Alcazar, 982 S.W.2d at 851 (citing Bill Brown Const. v. Glens Falls Ins.,818 S.W.2d 1, 12 (Tenn. 1991)). As such, insurance contracts do not contain terms which are theresult of mutual negotiation and concession but instead contain terms fixed by the insurer and towhich the insured must adhere if the insured desires insurance coverage. Alcazar, 982 S.W.2d at851-52 (citing Brandt v. Mutual Ben. Health & Acc. Ass’n, 30 Tenn. App. 14, 202 S.W.2d 827(1947)). Given these realities, we construe provisions in an insurance policy against the insurer andin favor of the insured so as to provide coverage. Id. Like any other contract, however, this Courthas a duty to enforce insurance contracts “according to their plain terms. Further, the language usedmust be taken and understood in its plain, ordinary and popular sense. The courts, of course, areprecluded from creating a new contract for the parties.” Alcazar, 982 S.W.2d at 848-49 (quotingBob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975)). Applying these well-settled rules, we reject Griffin’s argument that the policy provisionallowed him to forego compliance with the statute. Griffin is essentially asking this Court to createa new contract for the parties. The plain language of the policy provision does not waive thestatutory requirement. The statutory requirement of service is not even mentioned in the policyprovision. Indeed, as Shelter argues, the policy provision appears to set out a condition, writtenconsent, that is supplementary to the statutory requirement of service. Accordingly, we reject. Griffin’s argument that the policy provision allowed him to forego the statutory requirement ofservice of process. PUBLIC POLICY EXCEPTION Griffin next argues that this Court should reverse the decision of the lower courts becauseapplying the statute strictly to bar his claim is contrary to the public policy of this State as expressedby this Court Alcazar v. Hayes, 982 S.W.2d 845 (Tenn. 1998) and Bolin v. Tennessee Farmers Mut.Ins. Co., 614 S.W.2d 566 (Tenn. 1981). Shelter responds that this Court should strictly apply Tenn.Code Ann. � 56-7-1206(a) because it is an expression of the public policy of this State. In Alcazar, this Court considered whether an uninsured motorist policy is automaticallyforfeited when the insured does not comply with the notice provision of the insurance policy.Abandoning the traditional approach, which recognized that notice is a condition precedent torecovery under a policy and which required automatic forfeiture even without a showing of prejudiceto the insurer, we adopted in Alcazar the modern trend and held that in order for forfeiture of aninsurance policy to result from an insured’s breach of a notice provision, prejudice to the insurermust be shown. See Alcazar, 982 S.W.2d at 856. In so holding, we stated that “this state’s publicpolicy disfavors the ability of the insurer to escape its contractual duties due to a technicality.” Id.at 852. While Griffin is correct that we considered public policy in reaching our decision in Alcazar,Griffin fails to recognize that in Alcazar, we were considering not a statute, but an insurancecontract. Here, Griffin asks us to find that a statutory provision should not be applied because it isagainst public policy. As we recognized in Alcazar “the determination of public policy is primarilya function of the legislature” and the judiciary determines “public policy in the absence of anyconstitutional or statutory declaration.” Id. at 851 (emphasis added). The issue in this appeal isspecifically governed by a statutory provision adopted by the General Assembly, the governmentalbranch primarily responsible for determining public policy. We are not at liberty to simply declarethat the statute violates public policy and refuse to apply its plain language. As we have recognizedon many occasions, it is not the duty of courts to alter or amend a statute,
[FOOTNOTE 2] question the statute’sreasonableness, or “substitut[e] [our] own policy judgements for those of the legislature.” BellSouthTelecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). Griffin’s reliance uponAlcazar is misplaced. Finally, Griffin contends that the lower courts erred in granting summary judgment becausethis case is controlled by Bolin which announced a narrow exception to the general rule thatprecludes an insured from bringing a direct action against an uninsured motorist carrier. We findthat Bolin is distinguishable. In Bolin, the plaintiff pursued his tort claim against an apparently insured defendant without.serving his own uninsured motorist carrier. However, the plaintiff’s carrier had actively participatedin the lawsuit defending the plaintiff from a counter-claim. Following the trial, the plaintiff learnedfor the first time that the defendant was effectively uninsured because the defendant’s insurancecarrier had defended the action under a reservation of rights and had thereafter denied coverage tothe defendant. The plaintiff then sued his uninsured motorist carrier. Under those particular circumstances, this Court held that the plaintiff in Bolin couldmaintain a direct action against his uninsured motorist carrier. This Court pointed out that theuninsured carrier in Bolin had been actively involved in the litigation because the carrier haddefended the plaintiff on a cross-claim and was therefore not prejudiced by the plaintiff’s failure tocomply with the statute. In so holding, this Court stated: [t]he rule laid down by the Court of Appeals in the present case would be a harsh oneand would require every plaintiff, suing an apparently insured defendant, also toimplead his own uninsured motorist carrier or otherwise lose the benefit of hiscoverage in the event the tort-feasor should prove to be uninsured for some reasonunknown to the plaintiff. While we adhere to the Glover decision, supra, as a generalrule, we find that application of that rule under the unusual facts of this case wouldbe unduly harsh and would deprive appellants of valid insurance which they hadpurchased, without fault on their part and without the insurer’s having beenprejudiced. Bolin, 614 S.W.2d at 568-69. One key fact fully distinguishes this case from Bolin. Unlike the uninsured motorist carrierin Bolin, Shelter did not actively participate in the trial of the lawsuit against Vaughn, the uninsuredmotorist. Accordingly, the holding of Bolin does not apply to this case. Contrary to Griffin’sargument, by refusing to apply Bolin we are not adopting a rule which will require a plaintiff tobring suit against his or her uninsured motorist carrier in every case. In this case, Griffin asserteda large claim against Vaughn, $500,000. Vaughn’s only settlement offer was $17,500, even afterGriffin offered to discuss a settlement at policy limits. We agree with the Court of Appeals thatunder these circumstances it is only logical for the plaintiff to follow the statutory mandate and servethe uninsured motorist carrier so that the carrier may determine how to protect its own interests. Theholding in Bolin does not apply in this case to excuse Griffin’s failure to comply with the statutoryprovision requiring service upon the uninsured motorist carrier. Indeed, as the Court of Appealsrecognized, were we to apply Bolin to this case, the exception would very shortly swallow thegeneral rule. CONCLUSION Having concluded that the language of the insurance policy does not waive the statutoryrequirement of service and that strict application of the statute is not contrary to public policy, weaffirm the judgment of the Court of Appeals upholding the Chancellor’s grant of summary judgment.Costs of this appeal are taxed to the appellant, Donald E. Griffin, for which execution may issue ifnecessary. :::FOOTNOTES:::
FN1 That statute provides as follows:Any insured intending to rely on the coverage required by this part shall, if any actionis instituted against the owner and operator of an uninsured motor vehicle, serve acopy of the process upon the insurance company issuing the policy in the mannerprescribed by law, as though such insurance company were a party defendant. Suchcompany shall thereafter have the right to file pleadings and take other actionallowable by law in the name of the owner and operator of the uninsured motorvehicle or in its own name; provided, that nothing in this subsection shall preventsuch owner or operator from employing counsel of the owner’s own choice; andprovided further; that the evidence of service upon the insurance carrier shall not bemade a part of the record.
FN2 See Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298, 306, 397 S.W.2d 379, 382(1965).
Griffin v. Shelter Mutual Insurance Co. Supreme Court of Tennessee at Nashville DONALD E. GRIFFIN v. SHELTER MUTUAL INSURANCE COMPANY Appeal From: Chancery Court for Davidson County No. 97-1104-I Decided: May 1, 2000 Before: Drowota, J., Anderson, C.J., Birch, Holder, and Barker, JJ. Counsel for Appellant: Charles Patrick Flynn and Michael K. Radford Counsel for Appellee: Thomas W. Hardin and Kim B. Kettering
