                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                 ________________________________________    FILED
CARL SCOTT and ALMA
SCOTT,                                                           February 1, 2000

      Plaintiffs-Appellants,                                Cecil Crowson, Jr.
                                                          Appellate Court Clerk
                                        Davidson Circuit No. 98C-1624
Vs.                                     C.A. No. M1999-00048-COA-R3-CV

ROGERS GROUP, INC.,

     Defendant-Appellee.
___________________________________________________________________

               FROM THE DAVIDSON COUNTY CIRCUIT COURT
               THE HONORABLE BARBARA N. HAYNES, JUDGE




                       Mitchell G. Tollison; Lesa B. Rainwater
                           Hawks & Tollison of Humboldt
                              For Plaintiffs-Appellants

                    W. Lee Corbett; David F. Lewis of Nashville
                            For Defendant-Appellee




                           AFFIRMED AND REMANDED

                                   Opinion filed:




                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:
ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
        This is a case involving breach of contract. Plaintiffs/appellants, Carl Scott and

Alma Scott (referred to herein as “the Scotts”) appeal from the order of the trial court
granting summary judgment to defendant/appellee, Rogers Group, Inc.

        The Scotts’ complaint, filed June 15, 1998, alleges that Carl Scott was an

employee of the defendant from 1979 to 1989, and during that time he purchased
optional life insurance coverage under Group Policy GL-14076, for himself and his wife,

Alma. They aver that on his retirement, the Rogers Group offered him the opportunity

to continue the optional life insurance coverage with no increase in premiums. Plaintiffs
allege that they mailed the premiums to Rogers Group as required for the continuing

coverage under the life insurance policy. The complaint further alleges:

               10. That Plaintiffs and Rogers Group, Inc. thus had an
               enforceable and binding contract, upon the mailing of the
               first premium to Rogers Group, Inc., to continue Plaintiffs’
               life insurance coverage as long as Plaintiffs desired and
               with no increase in premiums.

               11. That Rogers Group, Inc. breached this contract by
               failing to fulfill it’s obligations of continuing life insurance
               coverage to Plaintiffs at no increase in premiums for as
               long as Plaintiffs desired by demanding an increase in
               premiums from Plaintiffs and subsequently canceling
               Plaintiffs’ coverage when Plaintiffs were unable to pay the
               increased premiums.

        The complaint also alleges an action pursuant to the Employee Retirement

Income Security Act (ERISA) and the Tennessee Consumer Protection Act. However,
in response to defendant’s motion for summary judgment, the Scotts conceded that

these actions were not viable, and they have made no argument on appeal concerning

them.
        Defendant’s answer avers that the Scotts had the opportunity to purchase the

optional life insurance coverage and admits that they mailed the premium for the

optional life insurance coverage to defendant. The answer denies the allegations that
there was a contract between the Scotts and defendant and joins issue on the

remaining allegations.

        The undisputed facts of this case are as follows: Carl Scott was employed by

Rogers Group, Inc., in Humboldt, Tennessee, from September 1979 to August 1989.
While he was employed by Rogers Group, Mr. Scott purchased optional life insurance

for himself and his wife from CIGNA. The CIGNA group policy was administered by

Rogers Group. Rogers Group sent all participating employees a certificate evidencing
the optional CIGNA policy, each participant was given a presentation explaining the

policy, and each participant was provided a booklet. Monthly premiums were paid by


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a check to Rogers Group by each employee opting for coverage. Upon receiving the

employees’ payments, Rogers Group remitted one payment to CIGNA to cover the

premiums of all participants. Rogers Group made no payment of any part of the
premium, nor did Rogers Group receive any compensation from CIGNA or anyone else

for administering the plan.

       Mr. Scott retired from Rogers Group in August 1989. At that time, Mr. Scott was
offered and accepted the option to continue the optional life insurance for both himself

and Mrs. Scott.    On December 23, 1994, Rogers Group sent a letter to Mr. Scott

informing him that CIGNA had elected to cancel the optional life insurance policy, but
that he could continue coverage through Security Life of Denver. However, under the

new coverage the current premium of $53.00 per month would be increased to $120.00

per month. The letter further informed Mr. Scott that the monthly premium would
increase as his age increased. Mr. Scott chose not to participate in the Security Life

of Denver life insurance policy.

       Rogers Group filed a motion for summary judgment supported by affidavits and
a statement of material facts. The Scotts’ response to Rogers Group’s motion is

supported by an affidavit of both plaintiffs stating that defendant promised them that

they could continue coverage for the same premium for as long as they wished. The

trial court granted the defendant’s motion for summary judgment, and plaintiffs have

appealed. The only issue for review, as stated in the Scotts’ brief, is:
              [w]hether the trial court erred in granting Defendant
              Summary Judgment in determining whether or not a
              contract for the provision of insurance existed between the
              Plaintiff and Defendant.

       A motion for summary judgment should be granted when the movant

demonstrates that there are no genuine issues of material fact and that the moving
party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party

moving for summary judgment bears the burden of demonstrating that no genuine

issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On
a motion for summary judgment, the court must take the strongest legitimate view of

the evidence in favor of the nonmoving party, allow all reasonable inferences in favor

of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:
              Once it is shown by the moving party that there is no
              genuine issue of material fact, the nonmoving party must
              then demonstrate, by affidavits or discovery materials, that
              there is a genuine, material fact dispute to warrant a trial.
              In this regard, Rule 56.05 provides that the nonmoving
              party cannot simply rely upon his pleadings but must set
              forth specific facts showing that there is a genuine issue of

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              material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

     Summary judgment is only appropriate when the facts and the legal conclusions
drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn. 1995). If the facts are uncontroverted, summary judgment is

inappropriate if reasonable minds could differ as to the inferences to be drawn
therefrom. Keene v. Cracker Barrel Old County Store, Inc., 853 S.W2d 501 (Tenn.

Ct. App. 1992); Prescott v. Adams, 627 S.W.2d 134 (Tenn. Ct. App. 1981). Since

only questions of law are involved, there is no presumption of correctness regarding a
trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before

this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
       The Scotts contend that Rogers Group breached a contract with them to provide

the optional life insurance policy for as long as the Scotts wished with no increase in

premiums. Attached to the Scotts’ complaint are letters dated November 11, 1989,
December 2, 1992, January 5, 1994, March 8, 1994, and September 9, 1994 from

Rogers Group to Carl Scott, which read in pertinent part:

              As you know, you may continue coverage under your
              optional life insurance policy for as long as you wish. The
              premiums will not increase and all you need to do is send
              a check in payment of the appropriate premiums to Rogers
              Group, Inc.
       The Scotts’ affidavits state that they “refrained from their legal right to procure

life insurance from some source other than Defendant because they relied upon the

promise of Defendant that they could continue their life insurance for as long as they
wished with no increase in premiums.” They further state that because of their age,

they cannot obtain comparable insurance for the same cost.

       Rogers Group contends that no contractual relationship existed for providing life
insurance and that Rogers Group acted at all times as a volunteer in managing the

optional life insurance.

       “A contract has been defined over the years as an agreement, upon sufficient

consideration, to do or not to do a particular thing.” Smith v. Pickwick Electric
Cooperative, 212 Tenn. 62, 71-72, 367 S.W.2d 775, 780 (1963) (citing Furman,

Green & Co. v. Nichol, 43 Tenn. 443, 445 (1866). An enforceable agreement requires

consideration flowing to both parties. Frank Rudy Heirs Associtaes v.Moore &
Associates, Inc., 919 S.W.2d 609, 613 (Tenn. Ct. App. 1995). A party attempting to

prove the existence of a contract “is required to show that the agreement on which he


                                            4
relies was supported by adequate consideration”. Price v. Mercury Supply Company,

Inc. 682 S.W. 2d 924, 933 (Tenn. Ct. App. 1984). “[I]n all simple contracts...whether

written or verbal, the consideration must be averred and proved.” Clark v. Small, 14
Tenn. (6 Yer.) 417, 421 (1834). See also 17 Am. Jur.2d Contracts § 125 (1965) and

17 CGS Contracts § 116 (1963).

       The question of what constitutes consideration adequate or sufficient to support
a contract has been addressed by a number of Tennessee courts. In Palmer v. Dehn,

29 Tenn. App. 597, 198 S.W.2d 827 (1946), the Court said:

              For there to be consideration in a contract between parties
              to the contract it is not necessary that something concrete
              and tangible move from one to the other. Any benefit to
              one and detriment to the other may be a sufficient
              consideration. The jury may draw any reasonable and
              natural inference from the proof and if by inference from
              the proof a benefit to the promisor and detriment to the
              promisee might be inferred this will constitute a valid
              consideration.

29 Tenn. App. 599, 198 S.W.2d 828;              see also Trailer Conditioners, Inc. v.

Huddleston, 879 S.W.2d 728, 731 (Tenn. Ct. App. 1995); Robinson v. Kenney, 526
S.W.2d 115, 118-19 (Tenn. Ct. App. 1973).

       In Nidiffer v. Clinchfield Railroad Co., 600 S.W.2d 242 (Tenn. Ct. App. 1980),

this Court considered an employer’s role in connection with procuring and administering

an employee’s group life insurance policy. In Nidiffer, former employees who were

notified of a substantial increase in premium payments under a group insurance policy
sued their former employer alleging that the employer was the employee’s agent for the

purpose of obtaining and maintaining group life insurance coverage and had breached

the fiduciary duties to the plaintiffs in transferring the group life insurance coverage
from Prudential Insurance Company to Employee’s Mutual Benefit Association. The

trial court found that there was an implied and express agency relationship between the

plaintiffs and their former employer in the matter of “the procurement, handling, and
perpetuating the insurance in a sound and solvent insurance company.” In Nidiffer,

as in the instant case, the employer wrote a letter to the plaintiffs concerning the

change in the insurance company and stated in pertinent part: “There will be no change

in the amount of your insurance as a result of this transfer, nor will there be any change
in your monthly premium.” The trial court found that by virtue of this letter, there was

an express contractual obligation between the employer and the employees and that

the employer had breached the contract due to the increase in premiums. On appeal,
this Court noted that there was no agency relationship between the employer,

Clinchfield, and its employees or former employees because they had no control or


                                            5
right of control over Clinchfield’s action in connection with the group insurance policy.

The Court also noted that unless there is some provision in the group policy contract

or the certificates issued thereunder, the individual members have no vested right to
continuation of the group policy. Id. at 246. This Court concluded that there was no

contract between Clinchfield and its employees to provide insurance for the employees,

but Clinchfield voluntarily secured the policy for them. Therefore, Clinchfield was
charged with the duty of a volunteer, which is a duty of reasonable care if the volunteer

chooses to act. Id. at 246.

       The undisputed facts in the instant case establish that the Rogers Group merely
procured and administered the insurance on behalf of the employees. There is nothing

in the record to indicate that Rogers Group made any binding commitment to furnish

insurance to the employee. The facts are undisputed that no consideration flowed to
Rogers Group.

       Rogers Group acted only as a volunteer and, thus, had the duty to act with

reasonable care. Niddifer at 246. There is nothing in this record to indicate that there
was a lack of reasonable care on the part of Rogers Group, nor is there any attempt by

the Scotts to proceed on that basis. In the instant case, CIGNA’s decision to terminate

the group policy was undoubtedly authorized by the provisions of the group policy, but,

if there is any question about whether CIGNA had the right to do so, that question

should have been resolved in an action against CIGNA.
       From the record before us, it is undisputed that there was no contract between

Rogers Group and the Scotts. Accordingly, the judgment of the trial court is affirmed,

and the case is remanded to the trial court for such further proceedings as may be
necessary. Costs of the appeal are assessed against the appellants, Carl Scott and

Alma Scott.

                                                 ______________________________
                                                 W. FRANK CRAWFORD, P.J., W.S.


CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE


_________________________________
DAVID R. FARMER, JUDGE




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