      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE


PAUL GLEN DRAPER,                       )                           FILED
                                        )
      Plaintiff/Appellant,              )                             April 23, 1997
                                        )      Davidson Circuit
                                                                 Cecil W. Crowson
                                        )      No. 95C-3755     Appellate Court Clerk
VS.                                     )
                                        )      Appeal No.
                                        )      01A01-9609-CV-00394
CURT REAVER and                         )
RICHARD ALAN TACEY, JR.,                )
                                        )
      Defendants/Appellees.             )



            OPINION ON PETITION FOR REHEARING

      Curt Reaver has filed a petition for rehearing pursuant to Tenn. R. App. P.
39 requesting this court to reconsider the portion of its April 11, 1997 opinion
vacating the trial court’s summary judgment dismissing Paul Draper’s property
damage claim against him. He correctly points out that our earlier opinion did not
specifically address his defense that his collision with Mr. Tacey’s vehicle did not
cause property damage to either Mr. Draper or his vehicle. We grant the petition
for the purpose of addressing this issue.


                                         I.


      Mr. Reaver’s February 8, 1996 motion for summary judgment asserted that
Mr. Draper’s complaint failed to state a claim for property damage upon which
relief could be granted and that Mr. Draper’s personal injury claim was barred by
the statute of limitations. Mr. Reaver asserted in his affidavit supporting the
motion that two collisions occurred on October 22, 1994 (the first between the
Draper and Tacey vehicles and the second between the Reaver and Tacey
vehicles) and that
             Neither my vehicle nor the Tacey Vehicle touched, hit,
             or otherwise came into contact with or caused damage
             to the Draper Vehicle as a result of this second
             collision.

In response, Mr. Draper filed an affidavit stating that
             Shortly after I exited my vehicle, an automobile driven
             by Curt Reaver collided with either my vehicle and/or
             Mr. Tacey’s vehicle and as a result of the force of the
             impact of this second collision, I was hit by either the
             Reaver vehicle or the Tacey vehicle or both as I stood
             beside the guard rail at the roadside.

The trial court’s order granting the summary judgment recites that there are no
genuine issues of material fact and that Mr. Reaver is entitled to a judgment as a
matter of law. While the order does not state that it was acting on both grounds
of Mr. Reaver’s motion, we can reasonably presume that it did.


      Motions for summary judgment should not be granted when there are
material factual disputes. Tenn. R. Civ. P. 56.03. Because motions for summary
judgment are not intended to be substitutes for a trial of disputed factual issues,
Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61 (Tenn. 1987), the
courts must view the evidence in the light most favorable to the non-moving party,
Haynes v. Hamilton County, 883 S.W.2d 606, 613 (Tenn. 1994), and must also
draw all reasonable inferences in the non-moving party’s favor. Pittman v.
Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994). The courts should not affirm a
summary judgment if any doubt or uncertainty exists with regard to the material
facts or the conclusions to be drawn from the facts. Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn. 1995).


      The affidavits submitted by Messrs. Draper and Reaver create a genuine
uncertainty with regard to the occurrences on October 22, 1994. Even though Mr.
Reaver categorically denies that either his vehicle or Mr. Tacey’s vehicle struck
Mr. Draper’s vehicle, Mr. Draper asserts that Mr. Reaver’s vehicle collided either
with his vehicle or with Mr. Tacey’s vehicle and that either Mr. Tacey’s vehicle
or Mr. Reaver’s vehicle struck him. Mr. Draper’s uncertainty goes to the weight
of his testimony, and it is not the court’s prerogative to weigh the testimony at the
summary judgment stage.

                                        -2-
      Mr. Draper’s affidavit does not exclude the possibility that Mr. Reaver’s
vehicle struck him and his vehicle. Accordingly, the record contains genuine
uncertainty concerning whether or not Mr. Reaver’s vehicle struck Mr. Draper or
his automobile. With the proof in this state, the trial court should not have
summarily dismissed Mr. Draper’s property damage claim against Mr. Reaver.


                                      II.


      We vacate the portion of the summary judgment dismissing Mr. Draper’s
property damage claim for the reasons stated herein as well as for the reasons
stated in our April 11, 1997 opinion. We also tax the costs of this petition for
rehearing against Curt Reaver for which execution, if necessary, may issue.




                                            ____________________________
                                            WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.

________________________________
SAMUEL L. LEWIS, JUDGE




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