                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  October 11, 2006 Session

                DAVID HOLT, ET AL. v. BARBARA PYLES, ET AL.

                     Appeal from the Circuit Court for Davidson County
                           No. 02C-1561     Walter Kurtz, Judge



                   No. M2005-02092-COA-R3-CV - Filed on April 24, 2007


                                                And

                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  October 11, 2006 Session

                 DAVID HOLT, ET AL. v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Davidson County
                           No. 02C-3394     Walter Kurtz, Judge



                                No. M2005-02094-COA-R3-CV


PATRICIA J. COTTRELL concurring in part and dissenting in part.

        I concur in the majority’s conclusion that the policy is not ambiguous and does not include
excess coverage for injuries caused by uninsured motorists. I disagree, however, with the majority’s
resolution of the estoppel claim because I do not agree that the requirements for summary judgment
for the insurer on that claim were met.

       To properly support its motion, the moving party must either affirmatively negate an
       essential element of the non-moving party’s claim or conclusively establish an
       affirmative defense. If the moving party fails to negate a claimed basis for the suit,
       the non-moving party’s burden to produce evidence establishing the existence of a
       genuine issue for trial is not triggered and the motion for summary judgment must
       fail. If the moving party successfully negates a claimed basis for the action, the non-
       moving party may not simply rest upon the pleadings, but must offer proof to
       establish the existence of the essential elements of the claim.

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (citations omitted). Thus, if,
but only if, the moving party presents evidence sufficient to justify grant of the motion if the facts
remain uncontested, the nonmoving party is required to come forward with some significant
probative evidence which makes it necessary to resolve a factual dispute at trial. Where the moving
party satisfactorily challenges the nonmoving party’s ability to prove an essential element of its
claim, the nonmoving party has the burden of pointing out, rehabilitating, or providing new evidence
to create a factual dispute as to that element. Staples, 15 S.W.3d at 88-89; Rains v. Bend of the
River, 124 S.W.3d 580, 587-88 (Tenn. Ct. App. 2003).

        A defendant moving for summary judgment must, in its filings supporting the motion, either
affirmatively negate an essential element of the non-moving party’s claim or conclusively establish
an affirmative defense. Blair v. West Town Mall, 130 S.W.2d 761, 767 (Tenn. 2004); Staples, 105
S.W.3d at 88-89. Only if the moving party presents evidence sufficient to justify grant of the motion
if the facts remain uncontested is the nonmoving party required to come forward with some
significant probative evidence which makes it necessary to resolve a factual dispute at trial.

        A defendant moving for summary judgment cannot rely solely on omissions in the plaintiff’s
proof. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) (holding that the
plaintiff’s inability to show whether his food poisoning was caused by defendant’s chicken or by
food eaten at breakfast did not suffice to affirmatively negate the causation element of his negligence
claim). Mere assertions that the non-moving party has produced no evidence do not suffice to entitle
the moving party to summary judgment. Blair, 130 S.W.3d at 767-68; Staples, 15 S.W.3d at 88-89;
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998); McCarley, 960 S.W.2d at 588; Arnett v.
Domino’s Pizza, 124 S.W.3d 529, 532 (Tenn. Ct. App. 2003).

        I cannot read the “New Policy Coverage Summary” as putting a reasonable person on notice
that the “Optional Excess Protection” provision does not apply to the uninsured motorist coverage.
While the relationship between the excess protection coverage and the uninsured motorist coverage
is made clear in the lengthy policy itself, specifically the Optional Excess Liability Coverage
endorsement or form, nothing in Mr. Holt’s affidavit indicates he received that form or the entire
policy before the accident. His affidavit refers only to the policy summary. Apparently, Encompass
did not file an affidavit stating that it had provided the complete policy to Mr. Holt.

       In any event, I believe that Mr. Holt’s affidavit raises sufficient questions about
misrepresentation by the agent as to his protection under the excess coverage provision and his
reasonable reliance on those representations to preclude summary judgment.

       [A] representation of fact made to a party who relies thereon with the right to so rely
       may not be denied . . . if such denial would result in injury or damage to the relying



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       party. Negligent silence . . . [or] conduct which . . . in fact mislead will work an
       estoppel notwithstanding there was no intention to do so.

Cincinnati Ins. Co. v. Avery, 914 F.2d 255, 1990 WL 132245, at *5 (6th Cir. 1990) (citations omitted)
(summarizing Tennessee law).

        Questions of reasonable reliance and misrepresentation are fact specific. I believe Mr. Holt
has testified to sufficient facts to present a question for the fact finder. Encompass has not negated
an essential element of the estoppel claim and, therefore, is not entitled to summary judgment.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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