                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 8, 2011 Session

                   BECKY COOPER v. JASON POWERS ET AL.

           Appeal by Permission from the Circuit Court for Bradley County
                     No. V-03-1118     J. Michael Sharp, Judge


            No. E2011-01065-COA-R9-CV-FILED-NOVEMBER 29, 2011


At its core, this case is about the application of an offset provision in an uninsured motorist
(“UM”) policy to an individual’s claim for damages arising out of an automobile accident
in the course and scope of her employment. The plaintiff Becky Cooper’s workers’
compensation claim arising out of the accident, along with another workers’ compensation
claim, this one for injuries sustained by the plaintiff “while getting a briefcase from her car,”
were settled and approved by the Chancery Court for Hamilton County. The “final order”
of that court recites that the court acted upon the “joint petition of the employer, . . . the
insurer, . . . and the employee, . . . for the approval of a proposed settlement under the . . .
Workers’ Compensation [Law].” The order does not expressly state that the plaintiff was
paid any benefits for the injuries sustained in the automobile accident; but it does recite that
she received all of the benefits to which she was due with respect to the two claims. The
plaintiff filed the present action against the driver and owner of the other vehicle involved
in the accident and served a copy of the complaint on Pacific Employers Insurance Company,
the UM carrier of the company whose automobile the plaintiff was driving at the time of the
accident. The UM carrier filed a motion for partial summary judgment asserting that it is
entitled to an offset corresponding to the workers’ compensation benefits to which the
plaintiff was entitled under the Workers’ Compensation Law with respect to the automobile
accident. The trial court granted the UM carrier partial summary judgment in an order that
states simply, without further elaboration, “[t]his is a final order.” For several reasons, we
hold that the court’s order is not a final order under Tenn. R. Civ. P. 54.02. However, in the
interest of the efficient administration of justice, see Tenn. R. App. P. 1, we exercise our
discretion to treat this appeal as if it were before us pursuant to the provisions of Tenn. R.
App. P. 9. With respect to the merits of this case, we affirm the trial court’s order granting
partial summary judgment and remand for further proceedings.
      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                             Affirmed; Case Remanded


C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY, J., joined. H ERSCHEL P. F RANKS, P.J., filed a separate dissenting opinion.

Gary W. Starnes, Chattanooga, Tennessee, for the appellant, Becky Cooper.

John D. Barry, Chattanooga, Tennessee, for the appellee, Pacific Employers Insurance
Company.

                                        OPINION

                                             I.

        On January 16, 2003, the plaintiff was driving a company automobile in the course
and scope of her employment with ACE USA, when she was involved in an accident with
an automobile driven by Jason Powers and owned by Joyce Powers. Pacific Employers
Insurance Company provided insurance coverage with respect to the company automobile.
The policy provides UM coverage with policy limits of $1,000,000. The plaintiff filed the
present action against Jason Powers and Joyce Powers. It is undisputed, for the purpose of
this appeal, that both Jason Powers and Joyce Powers were uninsured. The plaintiff served
notice of this action on Pacific Employers. A default judgment was entered as to Jason
Powers and Joyce Powers. Pacific Employers filed an answer and elected to defend the
plaintiff’s action.

       Pacific Employers was also the workers’ compensation carrier for ACE. The plaintiff
made two workers’ compensation claims against ACE arising out of two separate incidents.
The first involved a January 11, 2000, back injury which occurred when she lifted her
briefcase out of a company automobile. The second involved the injuries from the 2003
automobile accident that is the subject of the present action. On or about January 18, 2011,
Pacific Employers filed a motion for partial summary judgment asserting that, since the
automobile accident occurred in the course and scope of the plaintiff’s employment, the
policy provides no coverage for “lost wage, medical expense, and loss of earning capacity
both temporary and permanent.” The motion relies upon language in the policy that
delineates the “Limit Of Insurance” by stating as follows:




                                            -2-
              We will not pay for any element of “loss” if a person is entitled
              to receive payment for the same element of “loss” under any
              workers’ compensation law, disability benefits or similar law.

The motion also relies on the order of the Chancery Court for Hamilton County entered on
the joint petition of the plaintiff, her employer, and Pacific Employers, for approval of a
proposed settlement of her workers’ compensation claims. The order states, in pertinent part:

              The . . . Court hereby finds that on January 11, 2000 Rebecca G.
              Cooper sustained an injury to her low back, hip, right leg and
              right arm while getting a briefcase from her car . . . in the course
              and scope of her employment with ACE USA. The employee
              also sustained injuries from an automobile accident on January
              16, 2003 . . . in the course and scope of her employment with
              ACE USA. . . .

              The Court finds that Rebecca G. Cooper was temporarily totally
              disabled for the period May 3, 2002 through September 27,
              2002, January 13, 2003 through April 18, 2004 and April 21,
              2004 through June 1, 2004 as a result of her injury, and that she
              has been paid temporary total disability benefits in the total
              amount of Fifty Thousand Three Hundred Thirteen and no/100
              Dollars ($50,313.00) at a weekly rate of $541.00. The parties
              agree that no further temporary disability benefits are owing in
              this cause, and they agree that the employee’s weekly
              compensation rate is $541.00. The Court finds that the insurer
              has paid or caused to be paid to date medical expenses totaling
              $111,342.62 which the parties believe to be the total of
              authorized medical treatment.

              The Court finds that Rebecca G. Cooper has reached her
              maximum medical improvement, and that she has sustained a
              permanent medical impairment of 12% to the body as a whole
              as a result of the work injury as evidenced by the report of Dr.
              James Osborn. The Court finds that the employee’s permanent
              partial disability, as agreed by the parties, is 41.5% to the body
              as a whole, and that the insurer is willing to pay and the
              employee is willing to accept Ninety Thousand and no/100
              Dollars ($90,000.00) for her permanent partial disability, which
              equates to 41.5% permanent partial disability to the body as a

                                              -3-
              whole or 166.35 weeks of benefits at the weekly rate of $541.00.
              ...

              The Court further found that the employer and insurer agree to
              pay any unpaid medical bills for reasonable, necessary and
              authorized medical care incurred by the employee prior to the
              date of entry of this order as a result of the January 11, 2000
              accident. The parties . . . agreed that the medical benefits
              portion of the employee’s claim shall remain open . . . for any
              future or additional medical care or treatment rendered
              necessary by reason of the January 11, 2000 injury . . . .

              The Court finds that the petition and proposed settlement secure
              to the employee substantially all the benefits to which Rebecca
              G. Cooper is entitled under the Tennessee Workers’
              Compensation Act, and that the approval of the petition and
              settlement agreement is in the employee’s best interest. . . .

                                          *   *     *

              In accordance with the Court’s findings in this matter, the
              Workers’ Compensation Statistical Data Form [(“SD1”)] filed
              with the Court in this cause contemporaneously with this Final
              Order complies with the requirements of T.C.A. § 50-6-244, and
              it is hereby approved.

(Emphasis added.) The motion and supporting documents in the present case do not include
the SD1. One exhibit to the motion is the plaintiff’s answers to interrogatories, one of which
states, “I am not claiming lost wages in this matter. . . .”

        The plaintiff’s response admits she received benefits from the January 11, 2000,
injury. She asserts, however, that she “did not receive any benefits, including but not limited
to, temporary total, medical benefits, and permanent partial benefits, from ACE USA arising
out of the January 16, 2003 work-related accident . . .” (Emphasis in original omitted.) She
attached an affidavit which asserts that all the benefits received were “paid solely for my
work-related injuries sustained on January 11, 2000.” She also attached a copy of the
SD1which lists the date of the injury as “01/11/2000" and the “body part” of the injury as
“lower back area.” It is the plaintiff’s position that the SD1 confirms that the benefits
received relate 100% to the January 2000 back injury and not to the neck injury sustained in
the January 2003 automobile accident.

                                              -4-
        The trial court held that, if the plaintiff indeed did not receive any benefits under her
court-approved settlement, it was because she voluntarily waived them. The court noted that
she was clearly aware of her workers’ compensation claim regarding the automobile accident
and aware that compensation benefits were available. In fact, her response to the motion for
partial summary judgment acknowledges that the 2003 neck injury occurred in the course and
scope of her employment and was “subject to the Tennessee Workers’ Compensation laws
in effect” on the date of the injury. Furthermore, she joined with her employer and Pacific
Employers in a petition seeking court approval of a workers’ compensation settlement of
both her claims. She states in her brief on appeal that the settlement resolved both claims.

        The trial court held that the outcome was controlled by Dwight v. Tennessee Farmers
Mut. Ins. Co., 701 S.W.2d 621 (Tenn. Ct. App. 1985), which held that a voluntary waiver
of workers’ compensation benefits did not prevent a UM carrier from reducing the benefits
payable by the amount of compensation benefits that “were available to the plaintiff . . .” 701
S.W.2d at 622. Accordingly, the trial court held that the plaintiff had “waived her right to
collect Worker[s’] Compensation benefits from her employer based upon this accident, by
her own voluntary act.” The court further held “that the setoff provisions [in the Pacific
Employers UM policy] entitle the insurance company to setoff Worker[s’] Compensation
benefits that might have been paid.” Ultimately, the court granted partial summary judgment
“as it relates to the following elements of damages claimed by the plaintiff: 1) Any and all
reasonably necessary medical expense, past and future; 2) Any and all temporary or
permanent loss of earning capacity (impairment); and 3) Any and all permanent impairment.”
The court also granted “summary judgment as to lost wages” based on the plaintiff’s
interrogatory admission that she was not making “any claims for lost wages.” The final
sentence of the order granting partial summary judgment states, “[t]his is a final order.”

                                               II.

       The plaintiff filed a notice of appeal from the order granting partial summary
judgment. Pacific Employers raises a challenge to the jurisdiction of this Court to entertain
the appeal of an order that recites it is a “final order” but does not otherwise comply with
Tenn. R. Civ. P. 54.02 and is not supported by a “Rule 9 TRAP application.” The plaintiff
does not respond to the jurisdictional challenge other than stating in her brief, “[t]his matter
is before the Appellate Court as a matter of right pursuant to Rule 3 of the Tennessee Rules
of Appellate Procedure.” Her one substantive issue on appeal, provided we have jurisdiction
to reach the merits, is whether the trial court erred in granting partial summary judgment.




                                               -5-
                                                III.

                                                A.

        Obviously, Pacific Employer is correct when it says we must have subject matter
jurisdiction over the appeal if we are to determine the merits. In re Estate of Boykin, 295
S.W.3d 632, 635 (Tenn. Ct. App. 2008). Subject matter jurisdiction is a threshold question
that cannot be waived. Id. The presence or absence of subject matter jurisdiction is a
question of law that we determine de novo, and sua sponte if necessary. Northland Ins. Co.
v. State, 33 S.W.3d 727, 729 (Tenn. 2000); Boykin, 295 S.W.3d at 635. In light of the record
before us, it is appropriate to begin with the obvious: not every order entered by a trial court
is appealable as of right. In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003).
Our starting place for testing our jurisdiction is Tenn. R. App. P. 3(a), which states:

               In civil actions every final judgment entered by a trial court from
               which an appeal lies to the Supreme Court or Court of Appeals
               is appealable as of right. Except as otherwise permitted in rule
               9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if
               multiple parties or multiple claims for relief are involved in an
               action, any order that adjudicates fewer than all the claims or the
               rights and liabilities of fewer than all the parties is not
               enforceable or appealable and is subject to revision at any time
               before entry of a final judgment adjudicating all the claims,
               rights, and liabilities of all parties.

Setting aside for the moment the concept of an appeal of an interlocutory, i.e., a non-final,
order pursuant to Tenn. R. App. P. 9 or 10, an order cannot be appealed to this Court unless
it (1) adjudicates all claims against all parties, or (2) is properly certified as final pursuant to
Tenn. R. Civ. P. 54.02. Henderson, 121 S.W.3d at 645; Andrews v. Fifth Third Bank, 228
S.W.3d 102, 108 (Tenn. Ct. App. 2007). As described in Henderson,

               there is a mechanism, found in Rule 54.02 of the Tennessee
               Rules of Civil Procedure, by which a party may appeal an order
               that adjudicates fewer than all of the claims, rights, or liabilities
               of fewer than all the parties. Rule 54.02 provides as follows:

                       When more than one claim for relief is present in
                       an action . . . or when multiple parties are
                       involved, the court . . . may direct the entry of a
                       final judgment as to one or more but fewer than

                                                -6-
                      all of the claims or parties only upon an express
                      determination that there is no just reason for delay
                      and upon an express direction for the entry of
                      judgment. In the absence of such determination
                      and direction, any order or other form of decision,
                      however designated, that adjudicates fewer than
                      all the claims or the rights and liabilities of fewer
                      than all the parties shall not terminate the action
                      as to any of the claims or parties, and the order or
                      other form of decision is subject to revision at any
                      time before the entry of the judgment adjudicating
                      all the claims and the rights and liabilities of all
                      the parties.

Id. at 645-46 (ellipsis in original; emphasis in original omitted). In Fox v. Fox, 657 S.W.2d
747, 749 (Tenn. 1983), the Supreme Court identified the prerequisites to making an order
final pursuant to Tenn. R. Civ. P. 54.02:

               Rule 54.02 requires as an absolute prerequisite to an appeal the
               certification by the trial judge, first, that the court has directed
               the entry of a final judgment as to one or more but fewer than all
               of the claims, and, second, make an express determination that
               there is no just reason for delay. Such certification by the trial
               judge creates a final judgment appealable as of right under Rule
               3 T.R.A.P.

        Pacific Employers is correct that the mere recitation that an order is final, without
more, does not, ispo facto, bestow jurisdiction on us over an otherwise interlocutory order.
The order in the present case does not comply with Rule 54.02 as that “mechanism” was
described in Henderson and Fox. The most obvious missing ingredient is the complete lack
of any “express determination that there is no just reason for delay.” Fox, 657 S.W.2d at
749; Henderson, 121 S.W.3d at 646. The order granting partial summary judgment is
completely silent on the matter.

       The second missing ingredient is the “certification by the trial judge . . . that the court
has directed the entry of a final judgment as to one or more but fewer than all of the claims
. . .” Fox, 657 S.W.2d at 749. Although we are not inclined to hold a trial court to
“incantations” we believe that, at a minimum, there should be something in the order to
inform the reader that the trial court intends to treat what would otherwise be an interlocutory
order as final under the mechanism provided in Tenn. R. Civ. P. 54.02. The order before us

                                               -7-
makes no mention of Rule 54.02, and does nothing to inform the reader that the court has
ruled on one of multiple claims and believes that it is useful to treat what would otherwise
be an interlocutory order as a final order.

        This leads us to the point of considering whether the order before us is even
susceptible to certification as final under Rule 54.02. We hold that it is not. The order
granting partial summary judgment disposes only of certain “elements of damages,” namely,
medical expenses, loss of earning capacity, bodily impairment, and lost wages. Rule 54.02
allows certification as final of an order that disposes of “one or more but fewer than all of
the claims or parties . . .” This order did not dispose of any party. The same parties were in
the case after entry of the order as were there prior to entry of the order. Nothing changed
as far as the number and identity of parties are concerned. The question before us is, then,
did the order dispose of any one claim? The answer to the question must be in the negative.
Notably absent from Rule 54.02 is any mention of allowing the certification as final of an
order which disposes of certain elements of a claim for damages but leaves the claim pending
as to other elements. Our answer to the question is not the first to be rendered by this Court.
In Town of Collierville v. Norfolk Southern Railway, 1 S.W.3d 68 (Tenn. Ct. App. 1998),
we answered the question of whether an order that allowed Collierville to condemn property
without determining the damages to the property owner could be properly certified as final
pursuant to Tenn. R. Civ. P. 54.02. We held that it could not because

              our supreme court has held that “[a]n order made final pursuant
              to [rule] 54.02 must be dispositive of an entire claim or party.”
              Bayberry Assocs. v. Jones, 783 S.W.2d 553, 558 (Tenn. 1990).
              In doing so, the court noted that rule 54.02 certification by trial
              courts is improper unless the order certified could properly be
              viewed as a final judgment as to at least one claim or party in the
              lawsuit. Id. at 557 n. 2.

              As previously indicated, the trial court’s orders determined only
              the issue of the Town’s right to immediate possession of the
              easements over Norfolk Southern’s railroad tracks. The orders
              of possession did not dispose of the Town’s condemnation
              actions because the orders did not purport to determine all of the
              issues before the trial court relating to the condemnation claims,
              most notably the issue of any damages due Norfolk Southern.
              Inasmuch as the trial court’s orders did not dispose of “an entire
              claim or party,” we conclude that the orders are not reviewable
              under rule 54.02. Bayberry Assocs., 783 S.W.2d at 558.



                                              -8-
Id. at 70 (brackets in original). We agree with the rationale of Collierville, and hold that
Tenn. R. Civ. P. 54.02 does not allow a trial court to certify an order, that disposes of only
some, but not all, elements of damages, as final and appealable.

                                                B.

        Our determination that the order granting partial summary judgment was not final and
appealable as of right does not necessarily end our inquiry. In the Collierville opinion, we
elected, in the interests of judicial economy, to address the case pursuant to Tenn. R. App.
P. 9. 1 S.W.3d at 71. We followed the same approach in Roberts v. Bailey, 338 S.W.3d 540,
541 (Tenn. Ct. App. 2010), and in Alcoa Development & Housing Authority v. Monday, No.
196, 1991 WL 12291 at *1 (Tenn. Ct. App. E.S., filed Feb. 7, 1991). As we explained in
Collierville,

                [a]lthough the Alcoa court concluded that the order of
                possession was not reviewable pursuant to rule 54.02, the court
                found the case suitable for rule 9 application and, thus, elected
                to review the case as an interlocutory appeal. Alcoa, 1991 WL
                12291, at *1; T.R.A.P. 9. In doing so, the court waived any
                requirements of rule 9 with which the appellant had not
                complied. Alcoa, 1991 WL 12291, at *1; see T.R.A.P. 2
                (providing that, with certain exceptions, this court may, “[f]or
                good cause, including the interest of expediting decision upon
                any matter, . . . suspend the requirements or provisions of any of
                these rules in a particular case on motion of a party or on [the
                court’s] motion and may order proceedings in accordance with
                its discretion”). In the interest of judicial economy, we similarly
                elect to treat the subject appeal as an interlocutory appeal by
                permission pursuant to rule 9. See also Munke v. Munke, 882
                S.W.2d 803, 805 (Tenn. App. 1994); B.L. Hodge Co. v. Roxco,
                Ltd., No. 03A01–9704–CH–00144, 1997 WL 644960, at *1 n.
                3 (Tenn. App. Oct.16, 1997); T.R.A.P. 9.

Id. at 70-71.

        In the present case, we will not be waiving any requirement of substance in order to
hear the case pursuant to Tenn. R. App. P. 9. The rule is lengthy, but the core requirements
are (1) permission by the trial court for the issue to be heard by the appellate court despite
matters still pending in the trial court; (2) some showing that the issue is worthy to be heard
as an exception to the normal rule of deciding cases only after a final judgment; and (3) the

                                                -9-
agreement by this Court to hear the matter. The trial court’s inclusion of the language
identifying the order as a “final order” indicates that the trial court wanted to have an answer
to the question posed by Pacific Employers’ motion before it heard the full case on the
merits. We can easily see how a trial court would desire some guidance on this issue before
holding a trial on the merits. Finally, we agree, in this case, that the interest of judicial
economy will be served by now answering the questions before us, without waiting on a full
plenary trial. Accordingly, we will treat this as an appeal by permission over which we are
given subject matter jurisdiction by Tenn .R. App. P. 9.

        A word of caution to the bench and bar is in order. It would be a mistake to assume
that we will continue to employ Rule 9 to assume jurisdiction of (1) an appeal claimed by the
appellant to be pursuant to Tenn. R. Civ. P. 54.02 but one that fails to be properly certified
as final in full compliance with the language of the rule, or (2) an appeal, as in the present
case, that is not authorized by Rule 54.02. In either event, Rule 54.02 is part of a system of
rules that concern appellate jurisdiction, all of which are readily available to be read, and all
of which must be followed.

                                              IV.

                                               A.

       We turn now to the merits of the trial court’s grant of partial summary judgment. We
note that the facts are undisputed; we are concerned only with the legal issue of whether
Pacific Employers can reduce its UM obligation by the workers’ compensation benefits
available to the plaintiff from her January 2003 injuries resulting from the automobile
accident. Our review of questions of law is de novo, with no presumption of correctness.
Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006).

                                               B.

        The plaintiff contends that the only legitimate reason UM carriers are allowed to
reduce their obligations by workers’ compensation benefits is to avoid a duplication of
benefits to the insured. She points us to Tenn. Code Ann. § 56-7-1205 (2008) which states
that insurance forms “may include terms, exclusions, limitations, conditions, and offsets that
are designed to avoid duplication of insurance and other benefits.” She also relies upon two
cases that interpret the statutory language to mean that an insured cannot be forced, through
offsets, exclusions or limitations in a UM policy, to take a double reduction of benefits.
Bayless v. Pieper, No. M2008-01073-COA-R3-CV, 2009 WL 2632763 at *2-3 (Tenn. Ct.
App. M.S., filed Aug. 26, 2009)(UM carrier could not take an offset for both the $100,000
payment from tortfeasor’s insurer and workers’ compensation benefits of $84,937.65 because

                                              -10-
the tortfeasor’s liability insurance proceeds were used to reimburse a workers’ compensation
subrogation lien – this would amount to a double reduction); Boyce v. Geary, No. 01-A-01-
9409-CV-00410, 1995 WL 245389 at *3 (Tenn. Ct. App. M.S., filed April 28, 1995)(same
holding).

        The plaintiff’s core argument is that she did not receive a duplication of benefits;
therefore the statute, as interpreted in Bayless and Boyce, controls the outcome. We do not
believe that Bayless or Boyce have any application to the present case. We agree with the
trial court that this case is controlled by our opinion in Dwight v. Tennessee Farmers
Mutual insurance Company, 701 S.W.2d 621 (Tenn. Ct. App. 1985). In that case, Ms.
Dwight had sustained an injury as a passenger in an automobile driven by a co-worker. Id.
at 621. She knew that the injury was sustained in the course and scope of her employment
and that she was entitled to claim workers’ compensation benefits, but she “voluntarily
refused to assert a claim against her employer.” Id. at 622. Ms. Dwight argued that the UM
carrier could not claim a reduction for her workers’ compensation benefits because she made
no claim and collected no benefits. Id. We affirmed the trial court’s partial summary
judgment because Ms. Dwight’s “unilateral waiver of benefits may not operate to increase
the contractual obligations of the insurer. The policy provision operates to reduce the
coverage where ‘the benefits are available.’ ” Id.

       The plaintiff offers two related arguments why Dwight does not control the present
case. She argues “there is a very big difference between the phrase ‘payable’ as in the
Dwight case and the phrase ‘entitled to receive’ under [Pacific] Employer’s Insurance U/M
provision.” She also argues that she is not “ ‘entitled to receive’ any workers’ compensation
benefits” because she has settled her workers’ compensation case in a final judgment. We
see these distinctions as being without a difference. The only reason the workers’
compensation benefits were no longer “payable” in Dwight was that Ms. Dwight declined
to assert her claim. Had the same policy language as in the present case been used in Dwight,
we would have undoubtedly held that Ms. Dwight was no longer “entitled to receive” the
workers’ compensation benefits because she voluntarily declined to prosecute her claim and
that she could not thereby “increase the contractual obligations of the insurer.” Id. at 622.
Therefore, we do not see the slight difference in wording of the policies to be a reason for
departing from Dwight.

        We are also unconvinced that the settlement of the plaintiff’s workers’ compensation
claim for what she argues was zero benefits is a valid distinction. First, we note that the
judgment approving the settlement specifically found “that the petition and proposed
settlement secure to the employee substantially all the benefits to which Rebecca G. Cooper
is entitled under the Tennessee Workers’ Compensation Act . . . .” Among the benefits to
which she was entitled are those elements of damages upon which the trial court granted

                                            -11-
partial summary judgment. See Tenn. Code Ann. §§ 50-6-204 through 210 (2008 and 2011
Supp.). Thus, the plaintiff’s argument that she received nothing in the settlement for her
2003 injury is contrary to the court’s explicit finding. More importantly, even if the plaintiff
received no benefits in the workers’ compensation settlement related to the 2003 injury, there
is nothing in the present record to show that, up through entry of the judgment approving the
workers’ compensation settlement, she was not entitled under the law to receive benefits as
a result of her injury. To the contrary, as we have previously stated, her response to the
motion for partial summary judgment acknowledges that the 2003 injury occurred in the
course and scope of employment and was therefore “subject” to workers’ compensation. We
know of no reason that an employee’s waiver by failing to assert a claim, as in Dwight,
should be treated any differently, for the purpose of a UM policy offset, from a waiver by
judgment that acknowledges a claim but fails to expressly award any benefits.

        There can be no question that Dwight is good law. It was discussed by our Supreme
Court in Hudson v. Hudson Municipal Contractors, 898 S.W.2d 187 (Tenn. 1995), followed
by this statement which affirms our holding in Dwight:

              Under the holdings of Terry v. Aetna Casualty & Sur. Co. [,510
              S.W.2d 509 (Tenn. 1974)] and Dwight v. Tennessee Farmers
              Mut. Ins. Co., it is clear that an insured party’s right to recover
              under an uninsured motorist policy that contains a setoff
              provision . . . may be reduced by the amount that the insured has
              collected, or could collect, under the Workers’ Compensation
              Law.

Id. at 189 (emphasis added). As we have stated numerous times, based on the undisputed
facts in this record, Cooper could have collected medical and other workers’ compensation
benefits as a result of her injury in the automobile accident.

      Accordingly, we stand by our holding that Dwight controls the present case. It
follows that the trial court did not commit an error of law in granting partial summary
judgment based, as the court’s decision was, on the rationale of Dwight.

                                              V.

       The order of the trial court granting partial summary judgment is affirmed. Costs on
appeal are taxed to the appellant, Becky Cooper. This case is remanded, pursuant to
applicable law, for further proceedings.




                                              -12-
       _______________________________
       CHARLES D. SUSANO, JR., JUDGE




-13-
