                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   September 5, 2002 Session

      PAUL R. PEAK, ET AL. v. TRAVELERS INDEMNITY COMPANY

                    Appeal from the Chancery Court for Rutherford County
                     No. 00CV-1053     Robert E. Corlew, III, Chancellor



                   No. M2001-03047-COA-R3-CV - Filed December 31, 2002


The named insureds in an automobile liability insurance policy providing $300,000 per accident
liability insurance appeal a trial court grant of summary judgment that they had effectively reduced
their uninsured motorist limits per accident to $60,000. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J. and
ELLEN HOBBS LYLE , SP . J., joined.

Rick G. Mansfield, Murfreesboro, Tennessee and Larry R. McElhaney, II and S. Alexa Whittemore,
Nashville, Tennessee, for the appellants, Paul R. Peak and Virginia M. Peak.

Marc O. Dedman and Gayle B. Lakey, Nashville, Tennessee, for the appellee, Travelers Indemnity
Company.

                                              OPINION

         On September 27, 1999, Paul R. Peak and wife, Virginia M. Peak were seriously injured in
an automobile accident involving a head on collision with another vehicle. Mr. and Mrs. Peak were
named insureds in a policy of automobile liability insurance issued to them by Travelers Property
Casualty Insurance Company, which policy provided liability insurance to the Peaks with limits of
$300,000 per accident. At all times material in the case, Tennessee Code Annotated section 56-7-
1201(a)(1) required that such policy provide uninsured/underinsured motorist coverage equal to the
bodily injury liability limits stated in the policy unless an effective and proper rejection of such equal
limits was made in writing by the named insureds pursuant to Tennessee Code Annotated section
56-7-1201(a)(2). The policy in effect at the time of the September 27, 1999 accident provided for
a total premium of $744 for the policy period from September 10, 1999 to March 10, 2000. The face
of the policy provided for $300,000 bodily injury and property damage for each accident, together
with $5,000 medical payment coverage for each accident. As to uninsured motorist coverage, the
policy declarations provided:
       D1&D3-          Uninsured Motorists Bodily Injury
                       Uninsured Motorists Property Damage
                       $60,000 each accident
                       See Endorsement A41041

      The policy in effect at the time of the accident was a renewal of a policy originally issued in
October 1996. At the time the original policy was issued and at all times material in the case,
Tennessee Code Annotated section 56-7-1201(a)(1)(2) provided:

               Requirements and types of coverage -- Presumptions -- Limitations of
       liability. -- (a) 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 designed for use primarily on public roads
       and registered or principally garaged in this state, shall include uninsured motorist
       coverage, subject to provisions filed with and approved by the commissioner, for the
       protection of persons insured thereunder who are legally entitled to recover
       compensatory damages from owners or operators of uninsured motor vehicles
       because of bodily injury, sickness or disease, including death, resulting therefrom.

               (1) The limits of such uninsured motorist coverage shall be equal to the
       bodily injury liability limits stated in the policy.

               (2) However, any named insured may reject in writing such uninsured
       motorist coverage completely or select lower limits of such coverage but not less than
       the minimum coverage limits in § 55-12-107. Any document signed by the named
       insured or legal representative which initially rejects such coverage or selects lower
       limits shall be binding upon every insured to whom such policy applies, and shall be
       conclusively presumed to become a part of the policy or contract when issued or
       delivered, irrespective of whether physically attached thereto. Unless the named
       insured subsequently requests such coverage in writing, the rejected coverage need
       not be included in or supplemental to any continuation, renewal, reinstatement, or
       replacement of such policy, or the transfer of vehicles insured thereunder, where the
       named insured had rejected the coverage in connection with a policy previously
       issued by the same insurer; provided, that whenever a new application is submitted
       in connection with any renewal, reinstatement or replacement transaction, the
       provisions of this section shall apply in the same manner as when a new policy is
       being issued.

Tenn. Code Ann. § 56-7-1201(a)(1)(2).




                                                -2-
       At the time of the October 1996 application for the policy and as a part thereof, Paul R. Peak
executed and returned to Travelers the following document1:

                                UNINSURED MOTORISTS COVERAGE
                               OPTION SELECTION FORM (TENNESSEE)

       Under Tennesse e law, we must provid e Uninsured M otorists Bo dily Injury C overage at a limit equal
       to the B odily Injury Liability limit of your policy. However, you have the right to reject Uninsured
       Motorists Bod ily Injury Coverage entirely or to select a limit that is lower than your B odily Injury
       Liability limit.

       If you accept the full Uninsured Motorists Bo dily Injury Coverage, we will also provide Uninsured
       Motorists Property Damage Coverage at a limit equal to the Pro perty D amage Liability limit of your
       policy. However, you have the right to reject Uninsured Motorists Pro perty D amage co verage entirely
       or to se lect a limit that is lower than your Pro perty D amage Liability limit.


        NOT E: You may not choose an Uninsured Motorists Bo dily Injury and/or Property Damage limit
               that is greater than your Liability limits. If your policy has a single Liability limit, you may
               choose o nly a single limit Uninsured Motorists Coverage option. If you have split Liability
               limits, you may choose only a split limit Uninsured M otorists Coverage option.

       Comp lete the following only if you want to reject all or part of your Uninsured Motorists Coverage.

       OPTION I                          I rejec t Uninsured Motorists Coverage entirely.

       OPTION II                         I do not want U ninsured M otorists Pro perty Damage Co verage. However,
                                         I do want Uninsured Motorists Bodily Injury Coverage at the following
                                         limit. I understand that the limit I choose must be equal to or less than the
                                         Bo dily Injury Liability limit of my po licy:

                                                  BOD ILY INJURY ONLY

                    SINGLE L IMIT                                                     SPLIT LIM IT
                      m eq al t o t he
                       it u                                                       n o oper a t o s of u i
                                                                                   ers r        r      n
                      m eu t o t h
                       it q al                                                       $ 25,000/50,0ÿÿ þ
                      m eu t o t h
                       it q al                                                       $ 50,000/100,00ÿÿ
                      m eu t o t h
                       it q al                                                    n r y Co r age at a
                                                                                   ju     ve
                      m eu t o t h
                       it q al                                                    n r y Co r age at a
                                                                                   ju     ve
                        $ 1,000,00.                                               n r y Co r age at a
                                                                                   ju     ve

       OPTION III                        I want Uninsure d M otorists Bodily Injury and Property Damage Coverage.
                                         However, I want limits lower than my Bo dily Injury and Pro perty Damage
                                         Liability limits:




       1
           A reproduction of the actual form used is attached hereto as Appendix “A”.

                                                               -3-
                                    BODILY INJURY AND PROPERTY DAMAGE

                   SINGLE LIMIT                                 SPLIT LIMITS

                                                  (Bodily Injury)            (Property Damage)
                                60,000
                     m
                     it   eq al t o t he
                            u                     $   20,000/40,000              $ 10,000
                     m
                     it   eu t o t h
                           q al                                             m eq a l to the
                                                                            it u
                     m
                     it   eu t o t h
                           q al                                             m eq t o t he
                                                                             it ual
                     m
                     it   eu t o t h
                           q al                                             m t equ t o t h
                                                                            i       al
                     m
                     it   eu t o t h
                           q al                                             m t equ t o t h
                                                                            i       al
                      $    1,000,00               $300,000/500,000               $ 100,00

       I understand and agree that selection of one of the above options applies to my present auto insurance
       policy and future renewals o r replacements of this p olicy. If I de cide to select another option at some
       future time, I must let the Company or my agent know in writing.

         10-10-96                                               Paul R. Peak
           Date                                                     Signature (Named Insured)



       Based upon this document, the uninsured motorist limits in the original policy was $60,000
and the record discloses no requests by the named insureds subsequent thereto for any increase in
uninsured/underinsured motorist coverage and the $60,000 limits were carried over into subsequent
renewals through and including the September 10, 1999 renewal in effect at the time of the accident.

        Appellants assert that because the Option III box on the Uninsured Motorist Coverage Option
Selection Form was not marked in October 1996, it is ineffective to reduce the uninsured/
underinsured motorist coverage from $300,000 to $60,000.

       Appellees assert that the Uninsured Motorist Coverage Option Selection Form was sufficient
under Tennessee Code Annotated section 56-7-1201(a)(2) to effect a reduction in
uninsured/underinsured motorist coverage from $300,000 to $60,000.

        The case was decided in the trial court on cross-motions for summary judgment wherein the
trial court, without elaboration, overruled the motion of the named insureds and granted the motion
of Travelers.

        Appellate review of a grant of summary judgment involves only a question of law and no
presumption of correctness attaches to the decision of the trial court. Roberts v. Roberts, 845 S.W.2d
225 (Tenn. Ct. App. 1992). The party seeking summary judgment must carry the burden of
persuading the court that no genuine and material factual issues are involved and that the moving
party is entitled to judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

               Under Tenn.R.Civ.P. 56.03, a summary judgment is appropriate when “there
       is no genuine issue as to any material fact and . . . the moving party is entitled to a
       judgment as a matter of law.” Moving parties may demonstrate that they are entitled

                                                          -4-
       to a judgment as a matter of law in several ways. First, they may affirmatively negate
       an essential element of the nonmoving party’s claim. Second, they may conclusively
       establish an affirmative defense that defeats the nonmoving party’s claim. Third,
       they may demonstrate that the nonmoving party cannot establish an essential element
       of its case. Moman v. Walden, 719 S.W.2d 531, 533 (Tenn.App.1986). See 10A C.
       Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727, at 130-31 (2d
       ed. 1983).
                In ruling on a motion for summary judgment, both appellate and trial courts
       must review the matter in the light most favorable to the nonmoving party and draw
       all legitimate conclusions of fact in its favor. Smith v. Sovran Bank Cent. South, 792
       S.W.2d 928 (Tenn.App.1990). If the pleadings, stipulations, depositions, and
       affidavits, when viewed in the light most favorable to the opponent of summary
       judgment, show that no genuine issue of material fact exists, and if the record reveals
       no error of law, the moving party is then entitled to summary judgment. Maxwell v.
       Davco Corp. of Tennessee, 776 S.W.2d 528, 531 (Tenn.App.1989).

Caledonia Leasing v. Armstrong, Allen, 865 S.W.2d 10, 13 (Tenn. Ct. App. 1992).

       The circumstances surrounding the execution and submission to Travelers of the October
1996 application for insurance and particularly the “Uninsured Motorist Coverage Option Selection
Form” included as a part of this application are evidenced by affidavits submitted by Ann Barnes of
Miller & Loughry Insurance Agency under date of October 1, 2001 and by named insured Paul R.
Peak under dates of April 18, 2001 and June 18, 2001.

      The affidavit of Ann Barnes, after asserting her employment by Miller & Loughry Insurance
Agency for twelve and a half years states:

               3.    I was the agent for Paul R. Peak and Virginia M. Peak for the time
       period involved in this litigation.

              4.     The “Uninsured Motorist Coverage Option Selection Form” reflects
      $60,000 in uninsured motorist bodily injury and property damage coverage because
      those were the limits that Mr. Peak requested. The selection was marked and the
      amount was handwritten in by me at Mr. Peak’s instructions. The form was then
      signed, dated and returned to me by Mr. Peak. The insurance coverages provided to
      Mr. Peak conformed with his selection as reflected on the Uninsured Motorist
      Coverage Option Selection Form (Tennessee). Mr. Peak specifically declined
      uninsured motorist coverage equaling his liability limits and specifically instructed
      that the uninsured motorist limits equals $60,000. Mr. Peak also signed an
      acceptance of a quote for $300,000 liability limits and $60,000 U.M. limits.
(emphasis added)




                                                -5-
       The affidavits of Paul R. Peak are significant for what they do not say. At no point does he
deny the assertion by Ann Barnes that the $60,000 limits appearing in the “Uninsured Motorist
Coverage Option Selection Form” were written thereon by Ms. Barnes “at Mr. Peak’s instructions.”
He further acknowledges that he signed, dated and returned the form to Ann Barnes with the penned-
in $60,000 uninsured/underinsured motorist coverage limit reflected thereon at the time he signed
the document.

       The affidavit of Mr. Peak of April 18, 2001 states:

       1.        I received an “Uninsured Motorists Coverage Option Selection Form” from
                 Defendant in the mail on or about October 10, 1996 in the mail. (exhibit A)
       2.        The form, in bold letters, states: “Complete the following only if you want
                 to reject all or part of your Uninsured Motorists Coverage.”
       3.        Below the bold print are three separate choices designated as, “Option I,”
                 “Option II” and “Option III.” Beside each of the three is a check box for the
                 applicant to mark to select the corresponding option.
            a.   “Option I” states, “I reject Uninsured Motorist Coverage entirely.”
            b.   “Option II” states, “I do not want Uninsured Motorists Property Damage
                 Coverage. However, I do want Uninsured Motorists Bodily Injury Coverage
                 at the following limit. I understand that that the limit I choose must be equal
                 to or less than the Bodily Injury Liability limit of my policy.” [sic]
            c.   “Option III” states, “I want Uninsured Motorists Bodily Injury and Property
                 Damage Coverage. However I want limits lower than my Bodily Injury and
                 Property Damage Liability limits.”
       4.        I did not select any of the three options.
       5.        The form states at the bottom, “I understand and agree that selection of one
                 of the above options applies to my present auto insurance policy and future
                 renewals or replacements of this policy. If I decide to select another option
                 at some future time, I must let the Company or my agent know in writing.”
                 Below this statement are two lines, one marked “Date” and the other marked
                 “Signature (Named Insured).
       6.        I signed and dated the form and returned the form to the Defendant.
       7.        I did not select any of the three options or make any other markings on the
                 form.

       The affidavit of Paul Peak of June 18, 2001 provides:

       1.        I received an unsigned, undated “Uninsured Motorists Coverage Option
                 Selection Form” from Defendant in the mail on or about October 10, 1996
                 (exhibit A).
       2.        The form had blank spaces highlighted for the date and my signature at the
                 bottom of the page.
       3.        I did not strike through any dollar amounts on the form.


                                                  -6-
       4.      I did not write in “$60,000" or any other amount on the form.

        Construing these affidavits in the light most favorable to Appellants as must be done on
motion for summary judgment, the crucial undisputed fact is that Mr. Peak requested of Ms. Barnes
$60,000 in uninsured/underinsured motorist coverage and Ms. Barnes penned-in the $60,000 figure
on the selection form, then forwarded the form to Mr. Peak who signed it on October 10, 1996 and
returned it to Ms. Barnes.

       The policy of insurance was then issued in October 1996 selecting $60,000
uninsured/underinsured motorist coverage and such coverage has remained the same and Appellants
have enjoyed the reduced premium for such limited coverage through and including the time of the
September 27, 1999 accident.

       The entire case for Appellants hinges on a finding that the failure to mark the “Option III”
block on the Uninsured Motorist Coverage Option Selection Form renders it ineffective as a vehicle
for the selection of the lower limits of uninsured/underinsured motorist coverage, which the
undisputed evidence shows was, in fact, requested by Mr. Peak on October 10, 1996.

        Making all allowances for strict construction against Travelers, reasonable minds could not
accept the premise upon which the case for Appellants is based.

       The trial court correctly granted summary judgment to Appellees and we affirm the judgment.

       Costs of the cause are assessed against Appellants and the case is remanded for any further
proceedings necessary.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




                                                -7-
