             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                         February 25, 1999

DONALD E. GRIFFIN,                        )             Cecil Crowson, Jr.
                                          )            Appellate Court Clerk
       Plaintiff/Appellant,               )
                                          )   Appeal No.
                                          )   01-A-01-9712-CH-00700
VS.                                       )
                                          )   Davidson Chancery
                                          )   No. 97-1104-I(II)
SHELTER MUTUAL INSURANCE                  )
COMPANY,                                  )
                                          )
       Defendant/Appellee.                )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

              THE HONORABLE CAROL L. McCOY, CHANCELLOR




CHARLES PATRICK FLYNN
MICHAEL K. RADFORD
214 Centerview Drive, Suite 233
Brentwood, Tennessee 37027
      Attorneys for Plaintiff/Appellant

THOMAS W. HARDIN
KIM B. KETTERING
102 W. Seventh Street, Suite 100
Columbia, Tennessee 38402-0692
      Attorneys for Defendant/Appellee




                    AFFIRMED IN PART; REVERSED IN PART;
                              AND REMANDED




                                              BEN H. CANTRELL,
                                              PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.


                                OPINION
              The Chancery Court of Davidson County granted summary judgment to

appellant’s underinsured motorist carrier because appellant failed to comply with the

notice provisions of the policy and the service provisions of Tenn. Code Ann. § 56-7-

1206(a). The appellant contends that he did comply with the policy provisions and

that Tenn. Code Ann. § 56-7-1206(a) does not apply under the facts of this case. We

affirm the trial court on the failure to follow the statute. We reverse the dismissal on

the failure to follow the policy’s notice provisions.



                                            I.



              The appellant, Donald E. Griffin, sued Richard Vaughn for $500,000 for

injuries the appellant sustained in an automobile accident in Maury County. Mr. Griffin

had underinsured motorist coverage with Shelter Mutual Insurance Company

(Shelter), but he did not serve Shelter with any of the suit papers. Shelter did,

however, pursue a subrogation claim for the payments made to Mr. Griffin under the

policy. Mr. Griffin’s lawyer agreed to handle the subrogation claim without cost to

Shelter.



              Mr. Griffin obtained a judgment against Mr. Vaughn for $225,000, only

$50,000 of which was covered by the defendant’s insurance.             Mr. Griffin then

demanded that Shelter pay the difference between the $50,000 and the limits of

Shelter’s underinsured coverage. When Shelter refused, this action followed. The

chancellor granted summary judgment to the defendant.




                                            II.




                                           -2-
              Shelter resisted Mr. Griffin’s claim on two grounds. The first is found in

Tenn. Code Ann. § 56-7-1206(a) which requires an insured intending to rely on his

uninsured motorist coverage to serve a copy of the process issued against the

uninsured tortfeasor on the insurance company “in the manner prescribed by law, as

though such insurance company were a party defendant.” We have said that an

insured must strictly comply with the statute’s requirements. Eyman v. Kentucky

Central Ins. Co., 870 S.W.2d 530 (Tenn. App. 993).



              In Eyman, we said that a letter to the insurance company enclosing a

copy of the summons and the complaint served on the tortfeasor was not sufficient

to satisfy the statutory mandate. In Glover v. Tennessee Farmers Mutual Ins. Co.,

468 S.W.2d 727 (1971), our Supreme Court held that an insured must follow the

statute and cannot ordinarily file a direct action against his uninsured motorist carrier.



              In Bolin v. Tennessee Farmers Mutual Ins. Co., 614 S.W.2d 566 (Tenn.

1981), however, the Supreme Court recognized an exception to the strict application

of the statute, where the plaintiff pursued his tort claim against an apparently insured

defendant without serving his own carrier, but after obtaining a judgment, the plaintiff

discovered that the defendant was in fact uninsured. The plaintiff then sued his own

carrier and our Supreme Court allowed him to succeed, although the Court adhered

to the holding in Glover “as a general rule.” The Court found it significant that the

plaintiff’s uninsured carrier had been actively involved in the litigation because the

carrier had to defend the plaintiff from some adverse claims arising out of the same

accident. The Court said:

              It is obvious that under some circumstances an insurance
              carrier becomes subject to a claim under these statutes at
              a fairly late stage, or even after the conclusion, of litigation
              against the tort-feasor.

                                     *      *       *

              The rule laid down by the Court of Appeals in the present
              case would be a harsh one and would require every
              plaintiff, suing an apparently insured defendant, also to

                                           -3-
              implead his own uninsured motorist carrier or otherwise
              lose the benefit of his coverage in the event the tort-
              feasor should prove to be uninsured for some reason
              unknown to the plaintiff.

Bolin at 568, 569.



              The appellant insists that his case comes within the Bolin exception. We

do not think, however, that the exception goes that far. If it did, the exception would

soon swallow the rule. There are two facts that distinguish this case from Bolin. The

first is the fact that this defendant was not completely uninsured. The second is the

fact that the uninsured carrier actively participated in the Bolin trial because it was

required to defend its client from the claims arising out of the same accident. Thus,

the carrier was not prejudiced by being left out of the litigation.



              The appellant’s case is a more typical case where the plaintiff asserts

a large claim ($500,0000) and the defendant apparently has liability insurance. Under

these circumstances, is the plaintiff justified in assuming that he will not need to rely

on his uninsured motorist coverage? Or does it make more sense to follow the

statutory mandate and serve the uninsured motorist carrier so that the carrier may

determine how to protect its own interests? We think the answer is obvious.



              It is true that the carrier in this case pursued its subrogation claim; but

that participation was through the appellant’s counsel, who assured the carrier that its

subrogation interest would be protected. There is nothing in this record to indicate

that the carrier was otherwise involved in this case.



              We conclude that the claim against the carrier was properly dismissed

because of the failure to serve the carrier according to Tenn. Code Ann. § 56-7-

1206(a).



                                           III.

                                          -4-
              The second ground on which the chancellor granted summary judgment

concerns the policy language. In the general provisions the policy says:

              A person claiming coverage under this policy must . . . (1)
              Cooperate with us and assist us in any matter concerning
              a claim or suit; (2) Send us promptly any legal papers
              received or relating to any claim or suit . . .


              Part IV, titled Uninsured Motorists, contains the provision:

              If, before we make payment of loss, the insured or the
              insured’s legal representative institutes any legal action
              for bodily injury against any other person or organization
              legally responsible for the use of an auto involved in the
              accident, a copy of the summons and complaint or other
              process served in connection with the legal action shall be
              forwarded immediately to us. (Emphasis in original.)



              Without any showing of prejudice to Shelter, the chancellor dismissed

the complaint on the failure to comply with these provisions also. The appellant

makes a strong argument that neither provision applies under the facts of this case,

but we take no position on that argument because of a change in the law since the

decision below.



              When the chancellor decided this case an insurance company was

entitled to the dismissal of a claim under an insurance policy if the policy’s notice

provisions were not complied with. Our courts recognized that noncompliance with

the notice provisions was a complete defense, regardless of any prejudice to the

insurance company. Hartford Acc. & Indem. Co. v. Creasy, 530 S.W.2d 778 (Tenn.

1975). On December 21, 1998, however, our Supreme Court decided that the failure

to give notice only raised a presumption of prejudice, and that the insured could rebut

the presumption by proving that the insurance company was not prejudiced. Alcazar

v. Hayes, ____ S.W.2d ____ (Tenn. 1998).




                                         -5-
              The issue of prejudice to the company has not been raised in this case;

consequently the plaintiff has not had a chance to rebut it. We hold, therefore, that

the judgment dismissing the complaint on this ground should be reversed.



              We affirm the court’s dismissal of the complaint on the ground that the

plaintiff failed to comply with Tenn. Code Ann. § 56-7-1206(a). We reverse the

dismissal on the ground that the plaintiff failed to comply with the policy requirements.

We remand the case to the Chancery Court of Davidson County for any further

necessary proceedings. Tax the costs on appeal to the appellant.




                                           _________________________________
                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.




CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE




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