        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2017-CA-01019-COA

KIMBERLEE WILLIAMS                                                        APPELLANT

v.

LIBERTY MUTUAL FIRE INSURANCE                                               APPELLEE
COMPANY OR LIBERTY MUTUAL GROUP
INC.

DATE OF JUDGMENT:                        12/05/2016
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  DRAYTON D. BERKLEY
ATTORNEY FOR APPELLEE:                   CLIFFORD KAVANAUGH BAILEY III
NATURE OF THE CASE:                      CIVIL - INSURANCE
DISPOSITION:                             AFFIRMED: 11/20/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

      TINDELL, J., FOR THE COURT:

¶1.   On appeal, this Court is tasked with the interpretation and use of Tennessee law in a

Mississippi court. Tennessee resident Kimberlee Williams seeks in Mississippi what she

cannot legally obtain in Tennessee. Although Williams’s appeal only concerns her insurer,

Liberty Mutual, this controversy began in 2011 with an automobile accident in Tennessee

between two Tennessee residents, Williams and Lindsey Stafford.

¶2.   Williams alleged Stafford caused her damages. Stafford has $25,000 in liability

insurance. Williams, on the other hand, has $100,000 in uninsured motorists (UM) coverage
under her Liberty Mutual policy. Williams filed suit against Stafford and Liberty Mutual in

the DeSoto County Circuit Court.

¶3.    Williams argues that, due to Stafford’s status as an underinsured motorist, Liberty

Mutual is liable to her for damages under the UM provisions of her Liberty Mutual insurance

policy. Liberty Mutual counters Williams’s arguments with two points. First, Williams was

unable to obtain personal jurisdiction over Stafford in Mississippi and, as such, allowed the

statute of limitations in Tennessee to lapse. Thus, Williams no longer has a legal right to

recover from Stafford in either Tennessee or Mississippi. Second, to trigger coverage for

Williams under her Tennessee UM insurance rider, the policy terms require a legal right to

recover against the underinsured1 driver. Thus, without a right to recover from Stafford,

Liberty Mutual has no obligation to pay UM benefits to Williams.

¶4.    The circuit court granted summary judgment to Liberty Mutual, agreeing with Liberty

Mutual that without the legal entitlement to recover from Stafford, Williams is without the

right to recover UM benefits from Liberty Mutual. Williams appealed. The overriding issue

on appeal is whether under Tennessee law an insured can bring a direct action against one’s

own UM benefits carrier when the insured no longer has a viable legal claim against an

underinsured driver. This Court affirms the circuit court’s grant of summary judgment.

                                          FACTS

¶5.    Liberty Mutual issued an automobile policy to Williams providing $100,000 in UM



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        In Tennessee, as in Mississippi, the term “uninsured” motorist embraces the
“underinsured” motorist as well. Dixie Ins. Co. v. State Farm Mut. Auto. Ins. Co., 614 So.
2d 918, 920 (Miss. 1992); Clark v. Shoaf, 302 S.W.3d 849, 856 (Tenn. Ct. App. 2008).

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bodily benefits per person. The policy was issued to Williams in Tennessee and included a

Tennessee UM insurance rider. On December 15, 2011, Williams and Stafford were

involved in an automobile accident in Tennessee. Both Williams and Stafford were

Tennessee residents. On December 17, 2012, Williams filed suit against Stafford in the

DeSoto County Circuit Court. Williams alleged Stafford negligently caused the accident and

claimed that Stafford was a Mississippi resident.

¶6.    One hundred and twenty days after filing suit, Williams had not yet served Stafford.

However, on April 26, 2013, the circuit court granted Williams an additional 120 days to

serve Stafford (until August 2013). In May 2013, Williams first served Stafford with the

summons and complaint in Tennessee. Stafford appeared in the case and moved to dismiss

for lack of personal jurisdiction. Stafford argued that she was a Tennessee resident and that

the circuit court lacked personal jurisdiction over her. In September 2013, Williams

amended her complaint to add Liberty Mutual, seeking to recover UM benefits, and asserted

a bad faith extra-contractual claim. Liberty Mutual responded with a motion to dismiss based

on the doctrine of forum non conveniens.

¶7.    Stafford’s motion to dismiss was set for September 9, 2013. Stafford appeared in the

circuit court on an unrelated criminal matter on that day. At Stafford’s appearance in the

criminal matter, Williams served Stafford with process in Mississippi. The hearing on

Stafford’s motion to dismiss was continued, and both Stafford’s and Liberty Mutual’s

motions were heard on November 18, 2013. The circuit court granted both motions,




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dismissing the complaint against Stafford for lack of personal jurisdiction,2 and dismissing

the complaint against Liberty Mutual without prejudice. The circuit court based Liberty

Mutual’s dismissal on forum non conveniens, subject to the stipulation that Liberty Mutual

waive its statute-of-limitations defense if Williams refiled her action in another forum.

Williams did not refile suit against Liberty Mutual or Stafford in Tennessee or another forum.

She appealed the dismissals, and that appeal was determined by this Court.3

¶8.    Upon remand, Liberty Mutual filed a motion for summary judgment arguing that

Williams’s failure to serve Stafford prior to the running of the applicable one-year Tennessee

statute of limitations precluded Williams from receiving UM benefits because, under

Tennessee law and pursuant to the terms of the Liberty Mutual UM policy, Williams was no

longer “legally entitled to recover” against Stafford. The circuit court granted Liberty

Mutual’s motion and issued summary judgment in favor of Liberty Mutual. The circuit court

based its judgment on the application of the Tennessee UM statute, the Tennessee statute of

limitations for personal injuries, and Tennessee case law. Tenn. Code Ann. §§ 28-3-104(a)

(Supp. 1993) & 56-7-1201 (Supp. 1993); Winters v. Jones, 932 S.W.2d 464, 465 (Tenn. Ct.


       2
         See this Court’s opinion in Williams v. Liberty Mutual, 187 So. 3d 166 (Miss. Ct.
App. 2015), for our analysis of Williams’s prior appeal on the issue of personal jurisdiction
and Stafford’s residency/domicile. Stafford’s dismissal was not based on a running of the
statute of limitations.
       3
         In Williams’s prior appeal, this Court affirmed the circuit court’s dismissal of
Stafford for lack of personal jurisdiction but reversed and remanded Williams’s case against
Liberty Mutual. In summary of that appeal, this Court found that the language of the
stipulation for Liberty Mutual to waive any statute-of-limitations defense complied with
Mississippi’s forum-non-conveniens (FNC) statute, Mississippi Code Annotated section 11-
11-3(4)(b) (Supp. 2014). But, the effect of the dismissal left Williams without an alternative
forum and thus did not meet the FNC statute’s demands.

                                              4
App. 1996); Gafford v. Caruthers, 91C-2709, 1994 WL 420917, at *2 (Tenn. Ct. App. Aug.

12, 1994). Williams appeals.

                                STANDARD OF REVIEW

¶9.    We review grants or denials of summary judgment motions de novo. Estate of

Hudson v. Yazoo City, 246 So. 3d 872, 876 (¶29) (Miss. 2018). Whereas here, if there is no

genuine issue of material fact, we consider only whether the moving party is entitled to

summary judgment as a matter of law. See City of Magee v. Jones, 161 So. 3d 1047, 1049

(¶¶6-7) (Miss. 2015).

                                         ANALYSIS

¶10.   Williams seeks to overturn the circuit court’s dismissal, citing four grounds: (1) the

circuit court misapprehended and misapplied the correct construction of Williams’s

uninsured motorist policy to determine that she was not legally entitled to recover insured

motorist benefits; (2) the circuit court erred in finding that the expiration of the Tennessee

statute of limitations barred any claim filed in Mississippi courts; (3) the circuit court erred

in finding that Liberty Mutual had standing to raise the effect of the expiration of a

Tennessee statute of limitations for Williams’s claim against Stafford; and (4) the circuit

court erred in granting summary judgment to Liberty Mutual.

       I.     CONFLICT OF LAWS

¶11.   The material facts are agreed upon. Tennessee has the most significant relationship

to the matter. Mississippi has no real interest in it. Williams contracted for her coverage

with Liberty Mutual in Tennessee. The drivers of both vehicles, Williams and Stafford, were



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Tennessee residents. The accident occurred in Tennessee. Yet, Williams elected to file suit

in Mississippi and created the illusion of a conflict when one does not exist.

¶12.   Tennessee, like Mississippi, uses the “most significant relationship” approach of the

Second Restatement of Conflict of Laws (1971) for choice-of-law analysis. Hataway v.

McKinley, 830 S.W.2d 53, 60 (Tenn. 1992). “In an action for personal injury, the local law

of the state where the injury occurred determines the rights and liabilities of the parties,

unless, with respect to the particular issue, some other state has a more significant

relationship . . . to the occurrence and the parties . . . .” Id. (emphasis added). And, in

Mississippi, “[c]hoice of law analysis arises only when there is a true conflict between the

laws of two states, each having an interest in the litigation.” Zurich Am. Ins. Co. v.

Goodwin, 920 So. 2d 427, 432 (¶8) (Miss. 2006) (emphasis added).

¶13.   Under either analysis, this is not a case where Mississippi, as the “forum state,” has

any real interest in the parties, the cause of action, or the interpretation of Tennessee’s UM

laws. The only contact the parties had with the State of Mississippi occurred when Williams,

as plaintiff, chose to file suit in Mississippi. The choice-of-law principles of both Tennessee

and Mississippi support the circuit court’s application of Tennessee statutory interpretation

and case law to Williams’s cause of action.

       II.    TENNESSEE LAW

              A.     For Williams to recover UM benefits from Liberty
                     Mutual, she must show that she is legally entitled to
                     recover from Stafford.

¶14.   The parties agree, and the precedent set by our Supreme Court dictates, that Tennessee



                                              6
substantive law applies to contract construction of the Liberty Mutual insurance policy issued

in Tennessee. Thus, Tennessee law governs the determination of coverage under Williams’s

Liberty Mutual UM policy. O’Rourke v. Colonial Ins. Co., 624 So. 2d 84, 86-87 (Miss.

1993); Boardman v. United Services Auto. Ass’n, 470 So. 2d at 1024, 1031 (Miss. 1985).

¶15.   At the time of the accident, Liberty Mutual insured Williams under a policy which

provided uninsured/underinsured motorist benefits through a Tennessee UM rider. The

relevant provisions of the UM policy provided:

       UNINSURED MOTORISTS BODILY INJURY COVERAGE provides
       benefits up to the limits stated on your policy for damages of bodily injury,
       sickness or disease, including death, which you are legally entitled to
       recover from owners or operators of . . . [a] motor vehicle for which the sum
       of all limits of liability available to the insured is less than the applicable limit
       of liability for this coverage . . . .

(Emphasis added).

¶16.   Consistent with Tennessee law, the language of Liberty Mutual’s UM rider tracks the

language of Tennessee’s UM statute, Tennessee Code Annotated section 56-7-1201(a),

which provides:

       Every automobile liability insurance policy delivered, issued for delivery or
       renewed in this state, covering liability arising out of the ownership,
       maintenance, or use of any motor vehicle . . . shall include uninsured motorist
       coverage, subject to provisions filed with and approved by the commissioner,
       for the protection of persons insured under the policy who are legally
       entitled to recover compensatory damages from owners or operators of
       uninsured motor vehicles . . . .

(Emphasis added). This statute “sets out the procedures a party must follow in order to bring

its uninsured motorist carrier into a case against a tortfeasor.” Bates v. Greene, 544 S.W.3d

345, 350 (Tenn. Ct. App. 2017), appeal denied (Nov. 17, 2017).

                                                7
¶17.   Under the Tennessee UM act, “legal entitlement to recovery” means a legal liability

that the courts will enforce as between litigants. Glover v. Tenn. Farmers Mut. Ins. Co., 468

S.W.2d 727, 729-30 (Tenn. 1971). The Tennessee Supreme Court stated, “[i]t is fundamental

that the legal liability of one person to another can be ascertained only in an action brought

against such person by the other in a court of competent jurisdiction.” Id. (emphasis added).

¶18.   Under Tennessee law, the intent and purpose of the uninsured motorist act is to

provide some protection to the insured, “by making the insurance carrier stand as the insurer

of the uninsured motorist,” with two requirements: (1) the suit has to be brought against

the uninsured motorist; and (2) the insurer is “bound by the judgment rendered in that suit,

to the extent of its policy limits, where the insurer was afforded the statutory opportunity to

defend the uninsured motorist.” Glover, 468 S.W.2d at 730. The uninsured/underinsured

motorist must have been found legally obligated to pay the plaintiff’s damages before a claim

against the insurer exists; without that finding, plaintiff has no claim. Prewitt v. Brown, 525

S.W.3d 616, 621 (Tenn. Ct. App. 2017).

¶19.   Applying the Tennessee UM statute, and Tennessee case law interpreting that statute,

to the language of Williams’s UM policy, for Williams to recover UM benefits from Liberty

Mutual, she must show some legal entitlement to recovery from Stafford.

              B.     The expiration of the Tennessee statute of limitations
                     bars Williams’s legal entitlement to recovery against
                     Stafford.

¶20.   The statute of limitations for personal injuries in Tennessee is one year from the date

of injury. McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975)



                                              8
(citing Albert v. Sherman, 67 S.W.2d 140 (1993)). Applying Tennessee’s one-year statute

of limitations to Williams’s cause of action, December 17, 20124 was the last day that suit

could properly be filed in Tennessee against Stafford. As delineated above, Williams made

no effort to file suit against Stafford in Tennessee and, as shown in this Court’s ruling on her

prior appeal, Williams wholly failed to obtain sufficient personal jurisdiction over Stafford

to maintain an action against Stafford in a Mississippi court. Therefore, Williams has no

legal right to recover against Stafford in Tennessee or Mississippi.

¶21.   In interpreting the Tennessee UM statute, Tennessee UM policy language, and the

Tennessee personal injury statute of limitations, the Tennessee Court of Appeals has held on

more than one occasion that “because the statute of limitations had run against the . . .

defendant, then the plaintiff could not maintain an action against her uninsured motorist

carrier.” Lane v. Montgomery, No. E2006-01643-COA-R3CV, 2007 WL 1860903, at *5

(Tenn. Ct. App. June 28, 2007) (quoting Lipscomb v. Doe, 32 S.W.3d 840, 848 n.7 (Tenn.

2000)); Hooper v. State Farm Mutual Automobile Ins. Co., 682 S.W.2d 505, 508 (Tenn. App.

1984). In a Tennessee case similar to Williams’s case, Winters, 932 S.W.2d at 465-66, a car-

accident plaintiff failed to obtain proper service upon the alleged wrongful driver within

Tennessee’s one-year statute of limitations for personal injury, thus barring any suit against

that driver. The Tennessee court held therein that the plaintiff had no cause of action against

her UM insurer “greater than her cause of action against [the] defendant” and granted

       4
         The accident occurred on December 15, 2011. One year from that date, December
15, 2012, fell on a Saturday which gave Williams until Monday, December 17, 2012 to file
suit against Stafford. See Williams v. Liberty Mut. Fire Ins. Co., 187 So. 3d 166, 173 (¶¶29,
31) (Miss. Ct. App. 2015).

                                               9
summary judgment to the plaintiff’s UM insurer. Id. at 465.

¶22.   Allowing the Tennessee statute of limitations to lapse and being unable to obtain

personal jurisdiction over Stafford in Mississippi, Williams should not be allowed to

continue her suit against Liberty Mutual in Mississippi. Yet here, that is what Williams

attempts to do. Williams filed her complaint in Mississippi on the last day her complaint

could have been filed under Tennessee’s one-year statute of limitations, December 17, 2012.

The summons and complaint were served on Stafford on May 15, 2013, in Tennessee, but

this service did not confer jurisdiction in Mississippi. Thereafter, Stafford was not personally

served in Mississippi until September 9, 2013, and that service did not confer personal

jurisdiction, under the Mississippi long-arm statute, over Stafford. Miss. Code Ann. § 13-3-

57 (Supp. 2014). Thus, Williams allowed her cause of action against Stafford to lapse in

Tennessee and fail in Mississippi. We believe Tennessee substantive law and the Tennessee

UM statute require a more diligent effort on Williams’s part to preserve her rights, and the

rights of her insurer, against the tortfeasor. Winters, 932 S.W.2d at 465.

              C.      Liberty Mutual has standing to raise the statute of
                      limitations defense applicable to Stafford.

¶23.   Williams argues that the circuit court erred in finding that Liberty Mutual had standing

to raise the effect of the expiration of a Tennessee statute of limitations for Williams’s claim

against Stafford. However, the only case cited by Williams in support of this point is

Coleman v. American Manufacturers Mutual Ins. Co., 930 F. Supp. 255 (N.D. Miss. 1996).

In Coleman, the Northern District of Mississippi examined the “legally entitled to recover”

policy language in Mississippi UM policies under the Mississippi UM statute. Coleman, 930


                                              10
F. Supp. at 262. This disregards the agreed upon fact that Williams’s UM policy was issued

in Tennessee and contained a Tennessee UM rider. Thus, Coleman is inapplicable and our

discussion above reflects the meaning of “legally entitled to recover” policy language in

Tennessee UM policies under the Tennessee UM statute.

¶24.   Addressing the merits of Williams’s standing argument, we find this issue to be

without merit. The doctrine of “standing” concerns “whether a particular litigant is entitled

to have a court decide the merits of a dispute or of particular issues.” Am. Civil Liberties

Union of Tenn. v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). This doctrine prevents courts

from adjudicating “an action at the instance of one whose rights have not been invaded or

infringed.” Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001). “Persons whose

rights or interests have not been affected have no standing and are, therefore, not entitled to

judicial relief.” State v. Harrison, 270 S.W.3d 21, 28 (Tenn. 2008).

¶25.   Under Tennessee law, plaintiffs may not maintain a direct-action lawsuit against their

uninsured motorist carrier where a statute of limitations has run against the uninsured

motorist. Hooper, 682 S.W.2d at 506-08. Thus, Williams’s standing argument is wholly

without merit. Williams’s suit is a direct action against her uninsured motorist carrier,

Liberty Mutual. As discussed herein above, it is an action specifically proscribed under

Tennessee law. Liberty Mutual’s rights or interests are affected; Williams seeks damages

from Liberty Mutual in a suit she could not maintain in Tennessee. Therefore, Liberty

Mutual has standing and is, therefore, entitled to judicial relief. Id.

                                      CONCLUSION



                                              11
¶26.   The relevant provisions of the UM policy provided UM benefits to Williams only in

that amount to which she is legally entitled to recover. Tennessee law is clear on its holdings

regarding the specific language of Williams’s UM coverage. When the uninsured driver is

known, the UM policy carrier has no obligation to pay benefits to its insured unless its

insured has protected a legal right to recover from the uninsured driver. Here, the statute of

limitations precludes any legal recovery from Stafford. Consequently, Williams lost her right

to recovery from Stafford. Without a legal entitlement to recovery against Stafford,

Tennessee law is clear that Williams is without an entitlement to recovery from Liberty

Mutual for UM benefits. Thus, we find no error in the circuit court’s judgment.

¶27.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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