                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 9, 2001 Session

   SHIRLEY IRENE BREEDING v. ROBERT LEWIS EDWARDS,                                       ET AL.

                        Appeal from the Circuit Court for Knox County
                        No. 2-920-97 Wheeler A. Rosenbalm, Judge

                                     FILED JUNE 22, 2001

                                 No. E2000-01900-COA-R3-CV


We are asked to decide whether the Supreme Court’s decision in the case of Brown v. Wal-Mart
Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to
recover under the uninsured motorist provisions of its policy based upon the alleged negligence of
an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant
case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the
defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group,
Inc. (“Johnston”). She filed a complaint against these defendants within the period of the statute of
limitations and secured the service of process upon her uninsured motorist (“UM”) carrier, the
appellee Farmers Insurance Exchange (“Farmers”). Outside the period of the statute of limitations,
the defendants amended their answer to allege that an unknown motorist caused or contributed to
the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown
driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a
slip and fall case. The trial court agreed with Farmers and dismissed Breeding’s claim. Breeding
appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Todd J. Moody, Knoxville, Tennessee, for the appellant, Shirley Irene Breeding.

J. William Coley and B. Adam Newsome, Knoxville, Tennessee, for the appellee, Farmers Insurance
Exchange.

                                            OPINION
                                                          I.

       The accident in this case occurred on December 4, 1996. The plaintiff had brought her
vehicle to a stop and was waiting to make a left turn into a business. A car driven by Edwards and
owned by Johnston struck Breeding’s vehicle from behind. Breeding filed suit against Edwards and
Johnston on December 1, 1997. As a part of her original filing, she secured the service of process
on Farmers, her UM carrier.

        The named defendants, subsequent to the running of the personal injury statute of limitations,
filed an amended answer, alleging, inter alia, that an unknown driver caused or contributed to the
accident.1 On July 12, 1999, Breeding filed an amended complaint alleging negligence on the part
of the unknown driver, whom she identified as “John Doe.” Upon the motion of Farmers, the trial
court dismissed Breeding’s claim against Farmers and certified its order as a final judgment pursuant
to Tenn. R. Civ. P. 54.02. Breeding now appeals.

                                                         II.

        The trial court dismissed Breeding’s claim against Farmers “having considered the motion,
upon hearing argument of counsel and after consideration of the record as a whole.” The record
contains no written material filed by the parties other than their pleadings. We therefore treat the
trial court’s dismissal of the claim as one pursuant to Tenn. R. Civ. P. 12.02. In considering an
appeal of such a dismissal, we are “required to take the allegations of the complaint as true, and to
construe the allegations liberally in favor of the plaintiff.” Pemberton v. American Distilled Spirits
Co., 664 S.W.2d 690, 691 (Tenn. 1984). The question before us is purely a question of law, and
thus, our scope of review is de novo with no presumption of correctness as to the trial court’s
conclusions. Montgomery v. Mayor of Covington, 778 S.W.2d 444, 445 (Tenn. Ct. App. 1988).

                                                         III.

                                                         A.

        This appeal focuses on the precedential value of Brown v. Wal-Mart Discount Cities, 12
S.W.3d 785 (Tenn. 2000) to cases, such as this one, involving the negligence of an unknown
motorist, whose existence is first asserted by an already-sued defendant, in a situation where a
plaintiff invokes the uninsured motorist coverage of its policy. In Brown, the plaintiff was injured
when he slipped on ice and water on the floor of the defendant’s store. See id. at 785. The
defendant, by way of its answer, alleged that an unknown individual was responsible for the slippery
material on the floor. It argued that the jury should be permitted to consider the fault of the unknown
tortfeasor. See id. The trial court initially agreed, after which the jury returned a verdict assigning
30% of the fault to the defendant and 70% of the fault to the unknown tortfeasor. See id. Upon


         1
            While it is not clear from the record exactly when the amended answer was filed, it is undisputed that the
plaintiff’s amend ed comp laint was filed within 9 0 days of the filing of the amend ed answer .

                                                         -2-
motion for a new trial, however, the trial court held that it should not have allowed the jury to
consider the fault of the unknown tortfeasor. Consequently, it assigned the 100% of fault found by
the jury to the defendant. See id. The defendant appealed, first to this Court and then to the Supreme
Court, which granted permission to appeal “to decide the issue of whether the defendant can attribute
fault to an unidentified, or ‘phantom,’ tortfeasor.” See id.

        The Supreme Court began its analysis by discussing Tenn. R. Civ. P. 8.03, which provides,
in pertinent part, as follows:

                In pleading to a preceding pleading, a party shall set forth
                affirmatively facts in short and plain terms relied upon to
                constitute…comparative fault (including the identity or description
                of any other alleged tortfeasors)....

The Court explained that Rule 8.03 “allows a defendant to allege that a nonparty contributed to the
plaintiff’s damages, ultimately allowing the plaintiff to plead and serve, and the trier of fact to assign
fault to, the comparative tortfeasor alleged in defendant’s answer.” Brown, 12 S.W.3d at 787. The
Court held, however, that the pleading claiming the fault of another must identify or describe the
other alleged tortfeasor with sufficient specificity to initiate discovery. Id.

        The Supreme Court then turned its attention to McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.
1992), the landmark case in which the Supreme Court adopted modified comparative fault. In
McIntyre, the Court noted that there would be future cases involving nonparties that would require
resolution by the High Court. See Brown, 12 S.W.3d at 787. In Brown, the Court stated the
following:

                In adopting comparative fault, we attempted to reconcile the
                plaintiff’s interest in being made whole with the defendant’s interest
                in paying only that percentage of damages for which that particular
                defendant is responsible. We anticipated, however, that situations
                would arise in which one of these interests must yield to the other and
                that many issues regarding “nonparty” tortfeasors must “await an
                appropriate controversy.”

Id. The Court in Brown then went on to quote the following language from McIntyre:

                [F]airness and efficiency require that defendants called upon to
                answer allegations in negligence be permitted to allege, as an
                affirmative defense, that a nonparty caused or contributed to the
                injury or damage for which recovery is sought….However, in order
                for a plaintiff to recover a judgment against such additional person,
                the plaintiff must have made a timely amendment to his complaint
                and caused process to be served on such additional person.


                                                   -3-
                   Thereafter, the additional party will be required to answer the
                   amended complaint.

See id. at 787-88 (quoting McIntyre, 833 S.W.2d at 58).

        The Brown Court pointed out that the legislature responded to one aspect of McIntyre by
enacting T.C.A. § 20-1-119,2 which “enable[s] a plaintiff to plead and serve nonparties alleged in
a defendant’s answer as potential tortfeasors…[if] a defendant raises comparative fault as an
affirmative defense and the statute of limitations would otherwise bar the plaintiff’s cause of action
against the comparative tortfeasor alleged in defendant’s answer.” Brown, 12 S.W.3d at 788. The
Court, finding that T.C.A. § 20-1-119 “contemplates that the plaintiff will actually know the identity
of the alleged individual or entity,” held that “unless the nonparty is identified sufficiently to allow
the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, the
trial court should not permit the attribution of fault to the nonparty.” Id.

                                                              B.

       In the instant case, Farmers argues that because the driver whose alleged negligence is the
predicate for the plaintiff’s UM claim cannot be identified sufficiently to allow Breeding to plead
and serve process upon that driver, no fault may be attributed to the unknown driver, and hence the
UM carrier has no liability under the holding in Brown.

       We disagree for two basic reasons. First, we find nothing in the language of Brown to
suggest the Supreme Court intended that its holding there would apply to a negligence case involving


       2
           T.C.A. § 20 -1-119 (Supp . 2000), provide s, in pertinent part, as follows:

                   (a) In civil action s where com parative fault is or becomes an issue, if a defendant
                   named in an original complaint initiating a suit filed within the applicable statute of
                   limitations, or named in an amend ed comp laint filed within the ap plicable statute
                   of limitations, alleges in an answer or amended answer to the original or amended
                   complaint that a person not a party to the suit caused or contributed to the injury or
                   damage for which the p laintiff seeks recov ery, and if the plaintiff’s cause or causes
                   of action again st such person would be barred by any applicable statute of
                   limitations but for the operatio n of this section, the plaintiff may, within ninety (90)
                   days of the filing of the first answer or first amended answer alleging such p erson’s
                   fault, either:

                   (1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of
                   the Tennessee Ru les of Civil Procedure and cause process to be issued for that
                   person; or

                   (2) Institute a separate action against that person by filing a summons and
                   complain t. If the plaintiff elects to pr oceed u nder this sectio n by filing a sepa rate
                   action, the compla int so filed shall not be considered an “original complaint
                   initiating the suit” or “an amended complaint” for purposes of this subsection.

                                                              -4-
an unknown motorist where the UM coverage is otherwise implicated, even if the existence of the
unknown motorist and the latter’s fault are first asserted in a response filed by an already-sued
defendant.3 In general terms, Brown prevents a defendant from “putting off” fault on an unknown
tortfeasor, in those situations where it is the defendant who first raises the fault of the unknown
tortfeasor. Brown does not expressly address whether a plaintiff can attempt to assign fault to an
unknown tortfeasor under the facts of the instant case. Brown’s focus is on what a defendant cannot
do; it does not concern itself with what a willing plaintiff can do. Put another way, we do not
construe Brown as holding that fault can never, under any circumstances, be assigned to a phantom
defendant; rather, as we read that case, it simply prevents a defendant from asserting the fault of an
unknown individual or entity for the purpose of avoiding the imposition of fault on itself in a
situation where the unknown tortfeasor’s fault cannot lead to the entry of a judgment.

        Brown should be viewed as a shield that can be used by a plaintiff to ward off a defendant’s
attempt to avoid the imposition of fault upon itself by assigning fault to one who, because of its
phantom status, cannot be cast in judgment. Its holding was clearly designed to benefit a plaintiff.
There is nothing in that holding to support the contention that Brown can be used as a sword against
a plaintiff who attempts to assign fault to an unknown motorist in order to recover under the
plaintiff’s uninsured motorist coverage. There is a fundamental difference between Brown and the
instant case. In Brown, there could be no recovery based upon the unknown tortfeasor’s fault; in the
UM case now before us, because of the presence of the UM carrier, there can be a recovery based
upon the phantom’s fault. Thus, the problem present in Brown, i.e., the inability of the plaintiff to
recover a judgment based upon the unknown tortfeasor’s fault, does not come into play in the instant
case.

        It is an important “maxim not to be disregarded that general expressions, in every opinion
are to be taken in connection with the case in which those expressions are used.” National Life &
Accident Ins. Co. v. Eddings, 188 Tenn. 512, 523, 221 S.W.2d 695, 699 (1949) (quoting Cohens
v. Virginia, 6 Wheat. 264, 19 U.S. 264, 398, 5 L. Ed. 257, 290 (1821)). Brown does not expressly
address a factual scenario involving uninsured motorist coverage. It is a slip and fall case without
UM ramifications. The holding in Brown, when evaluated in context, is not a precedential bar to
the plaintiff’s claim against Farmers in this UM case.

         The United States District Court for the Eastern District of Tennessee recently held that
Brown does not preclude the imposition of fault upon a phantom driver in a case involving the
liability of a UM carrier who is present in the litigation to respond for the unknown driver. Resor
v. Graves, 108 F. Supp. 2d 929 (E.D. Tenn. 2000). We agree with United States Magistrate Judge
Robert P. Murrian, who stated that

                  although the actual alleged nonparty tortfeasor in this case…cannot
                  be identified, named in the complaint, and served with process, there


         3
        W e do not need to decide in this case if the holding in Brown is applicable to a factual scenario involving an
unknown motor vehicle driver where the uninsured motorist statutory scheme is not involved.

                                                         -5-
                 is an entity which stands in the shoes of the alleged nonparty
                 tortfeasor, which entity can be identified, served with process, and
                 represented in court, and can, if the jury so finds, be responsible for
                 the portion of the unidentified phantom tortfeasor’s percentage of
                 fault…. In this way, both of the interests recognized in McIntyre –
                 the plaintiff’s interest in being made whole and the defendant’s
                 interest in paying only that percentage of damages for which that
                 defendant is responsible – are satisfied and neither interest must yield
                 to the other.

Id. at 932-33.

          As a second reason for rejecting Farmers’ basic Brown argument, we note that the Tennessee
uninsured motorist statutes specifically contemplate that a UM carrier may be haled into court and
held liable for the negligent acts of an unknown driver and the statutes do not provide for an
exception to the liability of a UM carrier for those cases where the existence of an unknown motorist
is first asserted by an already-sued defendant. Uninsured motorist coverage exists “for the protection
of persons insured thereunder who are legally entitled to recover compensatory damages from
owners or operators of uninsured motor vehicles….” T.C.A. § 56-7-1201(a) (2000). By statute, the
concept of an uninsured motorist includes an unknown motor vehicle driver under certain
circumstances. T.C.A. § 56-7-1206(b) (2000). That statute specifically addresses the situation
where an insured is injured by an unknown motorist:

                 If the owner or operator of any motor vehicle which causes bodily
                 injury or property damage to a person insured under this part is
                 unknown and if such insured satisfies all of the requirements of § 56-
                 7-1201(e), should suit be instituted the insured shall issue a John Doe
                 warrant against the unknown owner or operator in order to come
                 within the coverage of the owner’s uninsured motorist policy. If the
                 uninsured motorist’s identity and whereabouts are discovered during
                 the pendency of the proceeding, the provisions of subsection (e) shall
                 govern the proper course of action following such discovery.

Id. T.C.A. § 56-7-1201(e) provides as follows:

                 If the owner or operator of any motor vehicle which causes bodily
                 injury or property damage to the insured is unknown, the insured shall
                 have no right to recover under the uninsured motorist provision
                 unless:

                 (1)(A) Actual physical contact shall have occurred between the motor
                 vehicle owned or operated by such unknown person and the person
                 or property of the insured; or


                                                   -6-
               (B) The existence of such unknown motorist is established by clear
               and convincing evidence, other than any evidence provided by
               occupants in the insured vehicle;

               (2) The insured or someone in the insured’s behalf shall have reported
               the accident to the appropriate law enforcement agency within a
               reasonable time after its occurrence; and

               (3) The insured was not negligent in failing to determine the identity
               of the other vehicle and the owner or operator of the other vehicle at
               the time of the accident.

        In light of these statutory provisions, we again agree with Judge Murrian, who opined that
“the legislature, through the uninsured motorist statute, specifically contemplates that an uninsured
motorist carrier may be held responsible for the negligent acts of an unknown tortfeasor.” Resor,
108 F. Supp. 2d at 933.

                                                  C.

        Quoting some of the predicate language of T.C.A. § 56-7-1201(a), Farmers argues that
Breeding is not “legally entitled” to recover damages from the unidentified nonparty because “fault
may not be attributed to that person where that person is not identified sufficiently to allow
[Breeding] to plead and serve process on that person.” Thus, so Farmers’ argument goes, the UM
statutes do not apply.

         We are not persuaded by this reasoning. Farmers is, in effect, saying that Brown applies to
all situations involving phantom parties-at-fault first identified by already-sued defendants, including
UM cases, and that, therefore, the uninsured motorist statutes do not apply because Breeding is not
“legally entitled” to recover. The argument assumes that which it sets out to prove, i.e., that Brown,
rather than the uninsured motorist statutes, applies to cases involving the negligence of an unknown
driver identified by an already-sued defendant where a plaintiff seeks to recover under the uninsured
motorist coverage. As previously stated, we are of the opinion that Brown does not apply in the
context of UM cases. To hold otherwise would be to view Brown as carving out an exception to the
UM statutory scheme. Courts have no such power. Shelby County Election Comm’n v. Turner,
755 S.W.2d 774, 777-78 (Tenn. 1988). Because we find that the holding in Brown does not apply
to UM cases, that case cannot serve as a basis for finding that Breeding is not “legally entitled” to
recover against Farmers under the facts of this case.

                                                  D.

       Farmers next argues that Breeding cannot prove the existence of the phantom driver. Hence,
so the argument goes, she cannot prove her case and her claim is subject to dismissal on the


                                                  -7-
pleadings. To address this question, we again refer to T.C.A. § 56-7-1201(e), which provides, in
pertinent part, as follows:

                    If the owner or operator of any motor vehicle which causes bodily
                    injury or property damage to the insured is unknown, the insured shall
                    have no right to recover under the uninsured motorist provision
                    unless:

                    (1)(A) Actual physical contact shall have occurred between the motor
                    vehicle owned or operated by such unknown person and the person
                    or property of the insured; or

                    (B) The existence of such unknown motorist is established by clear
                    and convincing evidence, other than any evidence provided by
                    occupants in the insured vehicle.

        In this case, it is alleged that there was no contact between the unknown vehicle and
Breeding’s person or property. Thus, Breeding must satisfy the requirement of T.C.A. § 56-7-
1201(e)(1)(B). Farmers argues that Breeding has no right to recover against Farmers because she
cannot, as a matter of law, satisfy the requirement of subsection (e)(1)(B). More specifically,
Farmers asserts that (1) Breeding is prohibited by the statute from establishing the existence of the
phantom driver by relying upon evidence provided by the occupants of her vehicle; and (2) the
defendant Edwards, under Brown, is prohibited from establishing the existence of the phantom
driver.4 Thus, so the argument goes, the existence of the phantom driver cannot be established,




         4
             Farmers relies upon the following language in Brown:

                    After our review of the record, the parties’ arguments, and applicable authority, we
                    conclude that a defendant may no t attribute fau lt to a nonp arty who is not identified
                    sufficiently to allow the plaintiff to plead and serve process on such person pursuant
                    to Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty’s
                    existence by clear and convincing evidence.

12 S.W.3d at 789 (emphasis added). Farmers argues that “may not attribute fault” includes the concept of “may not
testify as to the unidentified party’s fault.” Since we find that Brown does not apply to the facts of this case, we do not
find it necessary to comment on Farmers’ interpretation of this language from Brown.

                                                              -8-
either by the plaintiff or the defendant, and, consequently, Breeding has no right to recover against
Farmers.5

       This argument again assumes that Brown is applicable to cases involving unknown motorists
under the facts of this UM case. As we have already stated, we do not agree with this contention.
Thus, while it is true that Breeding is statutorily prohibited from establishing the existence of the
phantom driver by way of evidence provided by the occupants of her vehicle, the existence of such
driver may be established by clear and convincing evidence provided by the defendant Edwards, or
by some third party other than an occupant of the plaintiff’s vehicle.

                                                           E.

        Finally, Farmers argues that Breeding’s claim against it must fail because the statute of
limitations expired before she amended her complaint to allege the negligence of the phantom driver.

        The applicable statute of limitations for personal injuries is one year. See T.C.A. § 28-3-
104(a)(1) (2000). However, if a defendant named in a complaint that was filed within the limitations
period alleges that a nonparty caused or contributed to the injury or damage, and if the plaintiff’s
cause of action against that nonparty would otherwise be barred by the statute of limitations, the
plaintiff has 90 days from the first pleading alleging the fault of the nonparty to add the nonparty as
a defendant by amending his or her complaint. See T.C.A. § 20-1-119(a)(1).

        Breeding’s initial complaint was filed within the period of the statute of limitations. After
the limitations period had expired, the defendant alleged the fault of an unknown nonparty. Breeding
amended her complaint within 90 days of this allegation. Farmers argues that Breeding’s complaint
against the unknown driver is untimely. More specifically, it asserts (1) that under Brown, the
defendants are prohibited from attributing fault to an unidentified nonparty; (2) that, therefore,
Breeding cannot rely upon the defendant’s allegation of the existence of an unknown nonparty; (3)
that T.C.A. § 20-1-119, therefore, does not apply; and (4) that Breeding’s complaint against the
unknown driver was not timely filed.

        Once again, Farmers’ argument is contingent upon a finding that Brown applies to a case
where an already-sued defendant asserts the existence of an unknown driver whose alleged
negligence is the predicate for the liability of a UM carrier. Because we hold that it does not, we find
that the defendants’ allegation of the existence of a negligent unknown motorist was proper; that


         5
           Of course, this particular argument assume s that there is no individua l, other than Edwards or maybe an
“occupant[] in the insured vehicle,” who can testify to the “existence of such unkno wn motor ist.” We do not know, at
this preliminary stage of the proceedings, whether this assumption is correct or not. Th is being the cas e, we arguab ly
could have rejected this particular argument on the basis tha t even if Brown applies to the claim against an uninsured
motorist in this case, the record before us does not show that the plaintiff cannot establish her UM claim without the
assistance of the testimony of Edwards or an individual in the plaintiff’s vehicle. Ho wever, since b oth parties see m to
proceed on the assumption that Edwards is the sole witness to the existence of the unknown motorist, we have elected
to address this second argu ment of Farmers.

                                                           -9-
Breeding’s reliance upon this allegation was proper; and that Breeding’s amendment of her
complaint was timely under T.C.A. § 20-1-119.

                                                 IV.

         In summary, we hold that a plaintiff has a statutory right to pursue an uninsured motorist
claim against its carrier based upon the alleged negligence of an unknown motorist under the
circumstances outlined in T.C.A. § 56-7-1201(e), whether the existence of that motorist is first
asserted by an already-sued defendant or is initially alleged by the plaintiff. Brown does not affect
that statutory right. We further hold that the plaintiff’s claim against “John Doe” in the instant case
was timely filed and that the plaintiff is “legally entitled” to recover against that unknown motorist
should the trier of fact assign actionable fault to that driver. Finally, the issue as to whether a
plaintiff can make out its case under the provisions of T.C.A. § 56-7-1201(e) is an evidentiary one
and depends upon the proof at trial; that issue is also unaffected by Brown.

        As the instant case presents a situation where the unknown motorist’s fault can lead to the
entry of a judgment, Brown does not prevent the defendants in this litigation from attempting to have
fault allocated to the phantom driver. Any other approach would be unworkable in light of our
decision that the plaintiff has a statutory right to pursue a UM claim against its carrier based upon
the alleged negligence of the phantom driver. If the plaintiff can seek the allocation of fault to the
phantom driver because there is UM coverage, so may the defendants have fault allocated to the
same driver. Of course, there will be only one allocation of fault to this phantom driver.

                                                  V.

       The judgment of the trial court is reversed. The case is remanded for further proceedings
consistent with this opinion. Costs on appeal are taxed to the appellee.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                 -10-
