                IN THE COURT OF APPEALS OF TENNESSEE       FILED
                            AT NASHVILLE                     March 29, 2000

                                                           Cecil Crowson, Jr.
                                                          Appellate Court Clerk
ALI AL-FATLAWY,               )   M1999-00195-COA-R9-CV
                              )
          Plaintiff-Appellee, )
                              )
                              )
v.                            )
                              )
                              )   INTERLOCUTORY APPEAL PURSUANT TO
                              )   RULE 9, T.R.A.P., FROM THE
JOHN DOE,                     )   DAVIDSON COUNTY CIRCUIT COURT
                              )
          Defendant.          )
                              )
                              )
CHICAGO INSURANCE COMPANY,    )
                              )
          Uninsured Motorist )    HONORABLE CAROL L. SOLOMAN,
          Carrier-Appellant. )    JUDGE



For Appellant                     For Appellee

O. WADE NELSON                    TERRY R. CLAYTON
Smith & Cashion, PLC              Nashville, Tennessee
Nashville, Tennessee




                          O P I N IO N




REVERSED AND REMANDED                                     Susano, J.


                                  1
            We granted the Rule 9, T.R.A.P., application of Chicago

Insurance Company (“the Insurance Company”) in order to determine

if the trial court erred when it denied the Insurance Company’s

motion to dismiss.    We find and hold that the Insurance Company

is entitled to summary judgment.     Accordingly, we reverse the

judgment below and remand to the trial court for the entry of an

order dismissing the plaintiff’s complaint to the extent that it

seeks to recover against the Insurance Company.



            This case arises out of personal injuries sustained by

the plaintiff, Ali Al-Fatlawy, in an automobile accident in

Davidson County.    At the time of the accident, the plaintiff was

a guest passenger in a vehicle driven by Raed J. Petros.     Mr.

Petros was insured by the Insurance Company under a policy of

automobile insurance that included uninsured motorist (“UM”)

coverage.



            As a result of the accident, the plaintiff filed suit

against a single defendant -- an unknown party identified in the

complaint as John Doe.    The Insurance Company was served with

process pursuant to the provisions of T.C.A. § 56-7-1206(a)

(Supp. 1999), a part of the statutory scheme pertaining to

uninsured motorist coverage.    As pertinent here, the complaint

alleges as follows:



            That on or about November 23, 1997 at
            approximately 02:30 a.m. plaintiff...was a
            passenger in a 1989 BMW driven by Raed J.
            Petros...[H]e was driving west on Madison
            Blvd. in Nashville, Davidson County,
            Tennessee.



                                 2
            At the same time defendant, John Doe, was
            driving a vehicle the make and model [sic]
            was unknown and is still unknown by the
            plaintiff, east on Madison Blvd., in the same
            lane that Mr. Petros was driving in.

            While Mr. Petros was driving his vehicle west
            on Madison Blvd., the defendant, John Doe
            came upon his vehicle [and] in order to avoid
            the collision Mr. Petros turned the wheel of
            his vehicle quickly to the right, thereby
            running off the road and colliding into a
            tree.



It was and is the theory of the plaintiff that the negligence of

John Doe was the sole proximate cause of the accident and that

the UM coverage under Mr. Petros’ policy with the Insurance

Company is applicable to the plaintiff’s claim for personal

injuries.    He relies upon the provisions of T.C.A. § 56-7-1201(e)

(Supp. 1999):



            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 agency within
            a reasonable time after its occurrence; and

            (3) The insured was not negligent in failing
            to determine the identity of the other
            vehicle and the owner or operator of the
            other vehicle at the time of the accident.




                                 3
The Insurance Company takes the position that the complaint shows

on its face that there was no “[a]ctual physical contact” between

the vehicles involved in this accident.   See T.C.A. § 56-7-

1202(e)(1)(A) (Supp. 1999).   It further contends that the

plaintiff cannot prove the necessary factual predicate to

establish the alternative basis for UM coverage under the

statute.



           Both of the parties cite and rely upon the case of

Fruge v. Doe, 952 S.W.2d 408 (Tenn. 1997).   We agree that Fruge

controls our decision in this case.   The facts of that case, as

taken from the opinion, are as follows:



           On November 8, 1991, shortly before 6:30
           p.m., the plaintiffs, James R. Fruge and Jane
           Fruge, husband and wife, sustained personal
           injuries in an automobile accident which
           occurred as the vehicle operated by Mr. Fruge
           entered Interstate 40 from Front Street in
           Memphis. According to their deposition
           testimony filed by the insurer, State Farm
           Insurance Company, in support of its motion
           for summary judgment, their vehicle was
           proceeding along the approach ramp to I-40
           when Mrs. Fruge warned Mr. Fruge, who was
           watching the traffic approaching on I-40 from
           behind his vehicle, that a parked vehicle
           with no lights was obstructing their lane of
           traffic. Mr. Fruge swerved his vehicle in
           order to avoid striking the parked vehicle
           and thereby lost control of his vehicle,
           which then crashed into a retaining wall.
           Immediately thereafter, other vehicles were
           involved in a collision at the same location.
           The plaintiffs’ vehicle did not make physical
           contact with the parked vehicle or any of the
           other vehicles. The plaintiffs do not know
           of any eyewitnesses to their accident.



Id. at 409.




                                4
           As indicated in the quoted excerpt, the insurance

company in Fruge filed a motion for summary judgment, claiming

that the UM coverage of its policy did not extend to the facts of

that case.    In response to the insurance company’s motion, the

plaintiff in Fruge filed the affidavit of the investigating

officer.     The affidavit provided, in pertinent part, as follows:



             While completing my routine investigation, I
             noted the probable source of the resulting
             collisions to be a brown Ford Thunderbird
             automobile that had apparently ran out of gas
             and was blocking one or more lanes of
             westbound traffic. Although vehicles either
             struck the retaining wall or struck other
             vehicles, the abandoned automobile was not
             struck by any of the involved parties. The
             abandoned automobile was unlicensed, was
             without a driver and had to be towed from the
             scene by wrecker so that the roadway could be
             finally cleared. I was unable to identify
             the driver of the abandoned vehicle and the
             vehicle was not claimed before being towed to
             the City Lot for storage.



Id. at 410.



             In reversing the trial court’s grant of summary

judgment to the insurance company, the Supreme Court held that

the investigating officer’s affidavit reflected testimony that

was “probative of the existence of a motor vehicle the owner and

operator of which are unknown.”       Id. at 412.   (Emphasis added).

The Supreme Court went on to note that “[a] jury could find such

evidence is clear and convincing.”       Id.   The Court concluded that

summary judgment was not appropriate in view of the officer’s

affidavit.




                                  5
            As applicable to the facts of this case, Fruge

expressly holds that “[i]n order to prevail on a claim for

uninsured motorist benefits, the insured1 must meet the

requirements of subsections 1(A) or 1(B) and (2) and (3) [of

T.C.A. § 56-7-1201(e)].”       Id. at 410-11.      (Emphasis added).



            In the instant case, the plaintiff acknowledges that he

cannot bring his case within the purview of subsection (1)(A) of

T.C.A. § 56-7-1201(e), because there was no “[a]ctual physical

contact” between the vehicles as required by that part of the

statute.    However, he predicates his entitlement to relief on the

alternative basis set forth at T.C.A. § 56-7-1201(e)(1)(B), (2)

and (3).    He relies on the affidavit of Officer James Bledsoe,

who investigated this accident.           Officer Bledsoe’s affidavit

states, in pertinent part, as follows:



            I arrived at the scene of the accident at
            0234 hours and observed what I later came to
            know as a red 1989 BMW license number
            Tennessee 192-ZXR, front left fender embelled
            [sic] in a tree near the intersection of East
            Meade Avenue.

            I spoke to Mr. Raed J. Petros who identified
            himself as the driver of the 1989 BMW. Mr.
            Petros stated that he was traveling west on
            Madison Blvd. when he observed a car in his
            lane of traffic traveling east.

            Mr. Petros told me he swerved off of the road
            to his right to avoid a collision with the
            vehicle and struck a tree.

            Mr. Petros told me that he could not describe
            the vehicle and that he did not know the
            owner of the car.




      1
       The insurance company in the instant case admits that the plaintiff --
being a guest passenger -- is covered under its policy with Mr. Petros.

                                      6
            The Insurance Company filed a motion to dismiss, noting

that the plaintiff’s complaint fails to allege that there had

been a collision between the vehicles.          In addition, the

Insurance Company contends that, in the absence of allegations

bringing this case within the provisions of T.C.A. § 56-7-

1201(e)(1)(B), (2) and (3), the complaint fails to state a cause

of action.    As previously indicated, the plaintiff filed Officer

Bledsoe’s affidavit in opposition to the Insurance Company’s

motion.



            While we agree that the complaint does not allege

contact between the two vehicles, we do not find it necessary to

determine whether the complaint alleges a cause of action.              When

the plaintiff filed the affidavit of Officer Bledsoe and the

trial court considered it,2 the Insurance Company’s motion to

dismiss became one for summary judgment, subject to the

provisions of Rule 56, Tenn.R.Civ.P.         See Rule 12.02,

Tenn.R.Civ.P.



            We review the trial court’s denial of summary judgment

against the standard of Rule 56.04, Tenn.R.Civ.P., which

provides, in pertinent part, as follows:



            the judgment shall be rendered forthwith if
            the pleadings, depositions, answers to
            interrogatories, and admissions on file,
            together with the affidavits, if any, show
            that there is no genuine issue as to any
            material fact and that the moving party is
            entitled to a judgment as a matter of law.



      2
       The parties agree that the trial court considered the affidavit in
making its decision in this case.

                                      7
Since our inquiry involves a question of law, there is no

presumption of correctness as to the trial court’s judgment.

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Hembree v.

State, 925 S.W.2d 513, 515 (Tenn. 1996).    In making our

determination, we must view the evidence in a light most

favorable to the nonmoving party, and we must draw all reasonable

inferences in favor of that party.    Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn. 1993).    Summary judgment is appropriate only if no

genuine issues of material fact exist and if the undisputed

material facts entitle the moving party to a judgment as a matter

of law.   Rule 56.04, Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 211.



            Since this is a no-contact accident, if the plaintiff

is to be successful at trial, he must be prepared to establish

“[t]he existence of such unknown motorist...by clear and

convincing evidence, other than any evidence provided by

occupants in the insured vehicle.” T.C.A. § 56-7-1201(e)(1)(B).

(Emphasis added).



            The plaintiff contends that Officer Bledsoe’s affidavit

makes out a dispute regarding the existence of the unknown

motorist, thereby making summary judgment inappropriate.       Citing

Fruge, he claims that it is for the jury to decide whether there

is clear and convincing evidence of the existence of the other

driver.     This position is at odds with the language of the

statute mandating that, in a case involving a no-contact

accident, proof of the existence of the unknown driver cannot be

based on “any evidence provided by occupants in the insured

vehicle.”    See T.C.A. § 56-7-1201(e)(1)(B).   When Officer

                                  8
Bledsoe’s affidavit is stripped of statements made by Mr. Petros

to the officer, i.e., stripped of “evidence provided by [an]

occupant[] in the insured vehicle,” it contains no evidence, let

alone clear and convincing evidence, of the existence of the

unknown motorist.    Rather than defeating summary judgment for the

Insurance Company, the affidavit, coupled with the plaintiff’s

admission of no third-party witnesses to the accident, makes out

the Insurance Company’s entitlement to summary judgment.    It is

undisputed that the plaintiff cannot prove the existence of the

unknown motorist except through the testimony of an occupant of

the insured vehicle.    Under the statute, such testimony is not

sufficient, as a matter of law, to prove this critical fact.



            Fruge is of no help to the plaintiff in the instant

case.   In Fruge, a witness other than one of the occupants in the

insured vehicle testified from personal knowledge that there was

a vehicle -- with its lights off -- sitting in and blocking a

part of the road in the general vicinity of wrecked vehicles

including the plaintiff’s vehicle.    In the instant case, the

investigating officer has no personal knowledge regarding the

existence of an unknown motorist.     All of his information about

the unknown motorist came from an “occupant[] in the insured

vehicle.”    See T.C.A. § 56-7-1201(e)(1)(B).



            The Insurance company was and is entitled to summary

judgment.    Accordingly, the judgment of the trial court is

reversed and this case is remanded to the trial court for the

entry of an order dismissing the plaintiff’s complaint as to the

Insurance Company.     Costs on appeal are taxed to the appellee.


                                  9
                                __________________________
                                Charles D. Susano, Jr., J.

CONCUR:



________________________
Houston M. Goddard, P.J.


________________________
D. Michael Swiney, J.




                           10
