                                               I N   T H E     C O U R T O F A P P E A L S
                                                             A T K N O X V I L L E                                                  FILED
                                                                                                                               March 10, 1999

                                                                                                                              Cecil Crowson, Jr.
                                                                                                                              Appellate C ourt
                                                                                                                                  Clerk

S U Z A N N E     S H E R E R ,     e t     a l .                           )         K N O X C O U N T Y
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            P l a i n t i f f s - A p p e l l e e s                         )
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            v .                                                             )         H O N . H A R O L D       J .   W I M B E R L Y ,
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            D e f e n d a n t s - A p p e l l a n t s                       )         A F F I R M E D   A N D     R E M A N D E D




A R T H U R G . S E Y M O U R , J R . , O F K N O X V I L L E                             F O R   A P P E L L A N T     U N I T E D
S E R V I C E S A U T O M O B I L E A S S O C I A T I O N

J E S S     D .   C A M P B E L L     O F     K N O X V I L L E       F O R         A P P E L L E E S




                                                        O    P    I     N       I     O   N




                                                                                                                Goddard, P.J.



                      This is an appeal from the judgment of the Trial Court

sustaining a motion for summary judgment in favor of Suzanne

Sherer and Charles Sherer, who appear as the natural guardians of

Teal Sherer.                  The Trial Court’s action denied United Services

Automobile Association (USAA), the Sherers’ underinsured motorist

carrier, subrogation rights against any recovery by the Sherers

in a suit against General Motors.                                                     We affirm the judgment of the

Trial Court.
            The facts pertinent to the determination of this appeal

are undisputed.    Therefore, our duty is to ascertain the state of

the law and apply it to the facts of this case.




                         STANDARD OF REVIEW



            The standards governing an appellate court's review of

a trial court's action on a motion for summary judgment are well

settled.    Since our inquiry involves purely a question of law, no

presumption of correctness attaches to the trial court's

judgment.    Our task is confined to reviewing the record to

determine whether the requirements of Rule 56 of the Tennessee

Rules of Civil Procedure have been met.    Cowden v. Sovran

Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn.1991).    Rule 56.03 of

the Tennessee Rules of Civil Procedure provides that summary

judgment is only appropriate where:   (1) there is no genuine

issue with regard to the material facts relevant to the claim or

defense contained in the motion, Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn.1993);   and (2) the moving party is entitled to a

judgment as matter of law on the undisputed facts.    Anderson v.

Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993).     The

moving party has the burden of proving that its motion satisfies

these requirements.    Downen v. Allstate Ins. Co., 811 S.W.2d 523,

524 (Tenn.1991).



            The standards governing the assessment of evidence in

the summary judgment context are also well established.    Courts

must view the evidence in the light most favorable to the

nonmoving party and must also draw all reasonable inferences in

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the nonmoving party's favor.    Byrd, 847 S.W.2d at 210-11.

Courts should grant a summary judgment only when both the facts

and the conclusions to be drawn from the facts permit a

reasonable person to reach only one conclusion.     Byrd, 847 S.W.2d

at 210-11.



                                FACTS



          On September 4, 1995, Teal Sherer, daughter of Charles

and Suzanne Sherer, sustained injuries in a one car accident

while riding as a passenger in a 1987 Chevrolet automobile driven

by Ray Linginfelter.    As a result of the accident, Teal sustained

serious injuries which included a loss of sensation below the

waist.   On March 27, 1996, the Sherers’ entered into a settlement

agreement with Mr. Linginfelter and his insurance carrier.     In

this settlement agreement, Teal received $300,000 in a compromise

settlement, of which $175,000 was paid directly to the Sherers

and $125,000 contributed towards a structured settlement.     All

$300,000 was to be paid by Mr. Linginfelter’s insurance carrier.



          At the time of this accident, Mr. Sherer had a primary

insurance policy and an umbrella insurance policy with USAA, both

of which provided uninsured motorist coverage for Teal.     Mr.

Sherer’s primary policy included uninsured motorist coverage of

$300,000 per person and the umbrella policy increased coverage to

$1,000,000.   In the settlement of Teal’s claim, USAA paid the

Sherers’ $650,000, $300,000 under the primary policy, and

$350,000 under the umbrella policy.     USAA had previously paid

medical benefits of $50,000 under the medical payment coverage of

the primary policy.    In sum, the Sherer’s received $1,000,000

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from the settlement, either in lump sum or in payments from a

structured settlement.



          After settling the claim against Mr. Linginfelter, the

Sherers brought a product liability action against General

Motors, the manufacturer of the vehicle in which Teal was riding

at the time of the accident.    This complaint, filed August 29,

1996, alleged that the use of a lap restraint, instead of a lap

and shoulder belt combination, by General Motors in the 1987

Chevrolet Caprice resulted in additional injuries to Teal.    On

November 17, 1997, the Sherers filed a Complaint for Declaratory

Judgment wherein they alleged that USAA had no subrogation rights

against any recovery as to General Motors, because General Motors

was liable for additional injuries to Teal above and beyond the

negligence of Mr. Linginfelter.



          The Sherers filed a Motion for Summary Judgment which

was heard by the Trial Court on January 29 and February 6, 1998.

The Trial Court agreed that USAA had no subrogation rights

arising from the policy against any recovery by the Sherers

against General Motors Corporation and granted the Sherers’

Motion for Summary Judgment.    Accordingly, judgment was entered

on February 25, 1998.    USAA filed Notice of Appeal on March 12,

1998.



                             DISCUSSION



          As already noted, USAA claims subrogation rights to any

recovery arising from the Sherers’ product liability claim



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against General Motors because of additional injuries to Teal as

a result of General Motors’ negligence.



          Tennessee Code Annotated § 56-7-1202(a) defines an

“uninsured motor vehicle” as:

     For the purpose of this coverage, "uninsured motor
     vehicle" means a motor vehicle whose ownership,
     maintenance, or use has resulted in the bodily injury,
     death, or damage to property of an insured, and for
     which the sum of the limits of liability available to
     the insured under all valid and collectible insurance
     policies, bonds, and securities applicable to the
     bodily injury, death, or damage to property is less
     than the applicable limits of uninsured motorist
     coverage provided to the insured under the policy
     against which the claim is made.


          The provisions of the primary policy in question

provide in pertinent part as follows:

                  OUR RIGHT TO RECOVER PAYMENT

     A.   If we make a payment under this policy and the
     person to or for whom payment was made has a right to
     recover damages from another, we shall be subrogated to
     that right. That person shall do whatever is necessary
     to enable us to exercise our rights and do nothing
     after loss to prejudice them. . . .

     B. If we make payments under this policy and the
     person to or for whom payment is made recovers damages
     from another, that person shall hold in trust for us
     the proceeds of the recovery and reimburse us to the
     extent of our payment.


Furthermore, the umbrella policy included the following provision

under “Uninsured Motorist Coverage”:

     The coverage provided by this endorsement is subject to
     all provisions of the Uninsured Motorist Coverage
     provided by the the primary Automobile Liability
     Insurance Policy, except as modified by this
     endorsement. . . .
          With respect to damages caused by an uninsured
     motor vehicle to which a bodily injury liability bond
     or policy applies at the time of the accident, the
     limit of liability under this endorsement shall be
     reduced by all sums paid or payable:
               -by or on behalf of persons or organizations
     who may be legally responsible;

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               -under Part A of the primary policy; or
               -under the liability coverage of this policy.
          However, in no case will the limit of liability be
     reduced if such would duplicate a reduction under the
     Uninsured Motorist Coverage or the primary policy.

          In no event shall a person be entitled to receive
     duplicate payments for the same damages.


           USAA relies heavily on Erwin v. Rose, an unpublished

opinion of this Court, filed in Nashville on April 15, 1998.       In

Erwin, the plaintiff was killed by a Maury County Deputy who lost

control of his car while in pursuit of another driver.      The

plaintiff’s parents filed suit against both the fleeing driver

and the deputy.   The Trial Court bifurcated the two actions,

trying the case against the deputy first.      The Trial Court found

the plaintiff’s damages surpassed one million dollars, but

limited the county’s liability to $130,000 under Tennessee Code

Annotated 29-20-403(2)(A).



           The Trial Court and a jury then heard the case against

Mr. Lovell, the fleeing driver.       The jury returned a verdict for

$1,000,000 finding Mr. Lovell 84% at fault and Deputy Rose 16% at

fault.   Mr. Lovell had a $25,000 liability policy, while the

plaintiff’s had a $100,000 uninsured motorist coverage.      The

Trial Court dismissed the claim against the uninsured motorist

carrier upon its motion for summary judgment based upon the

uninsured motorist policy.   In affirming the decision of the

Trial Court, Judge Cantrell held that the adoption of comparative

fault “did not affect the right of the insurance company to

reduce its coverage by the benefits the insured receives from

whatever source.”   In arriving at this conclusion, Judge Cantrell

relied upon cases decided before the adoption of our comparative

fault system.

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            We must respectfully disagree with Judge Cantrell and

the holding of Erwin v. Rose.    The Tennessee Supreme Court

clearly announced the demise of joint and several liability in

Tennessee in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992):

     today’s holding renders the doctrine of joint and
     several liability obsolete. . . . Having thus adopted .
     . . [comparative] fault, it would be inconsistent to
     simultaneously retain a rule, joint and several
     liability, which may fortuitously impose a degree of
     liability that is out of all proportion to fault.
          Further, because a particular defendant will
     henceforth be liable only for the percentage of a
     plaintiff’s damages occasioned by that defendant’s
     negligence, situations where a defendant has paid more
     than his “share” of a judgment will no longer arise . .
     . .

McIntyre, 833 S.W.2d at 58.



            In Cox v. Neway-Love Distributors, Inc., an unreported

opinion of this Court, filed in Knoxville on January 11, 1996, we

applied the principles set forth in McIntyre to uninsured

motorist coverage with multiple tortfeasors.    In Cox, the

uninsured motorist provider sought credit arising from

subrogation rights for all sums received for the injuries of the

insured.    In Cox, we held that, if the uninsured motorist carrier

is required to make any payments to the plaintiff, subrogation

will be limited to the plaintiff’s rights against the uninsured

motorist.



            This holding is supported by the provisions of T.C.A. §

56-7-1204(a) which provides:

      56-7-1204. Payment by insurer--Subrogation
     (a) In the event of payment to any person under the
     coverage required by this part, and subject to the
     terms and conditions of such coverage, the insurer
     making such payment shall, to the extent thereof, be
     subrogated to all of the rights of the person to whom
     such payment has been made, and shall be entitled to
     the proceeds of any settlement or judgment resulting

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     from the exercise of any rights of recovery of such
     person against any person or organization legally
     responsible for the bodily injury or property damage
     for which such payment is made, including the proceeds
     recoverable from the assets of an insolvent insurer.
     (emphasis added).



            The subrogation rights of the insurer are limited to

the injuries for which the insurer had made payment.    After the

death of joint and several liability, each defendant is

responsible only for liability arising from that defendant’s own

negligent acts.    For this reason, payments made by a defendant to

a plaintiff compensates the plaintiff for the injuries incurred

as a result of that, and only that, defendant’s negligence.



            Accordingly, in the case at hand, after negotiating and

arriving at a settlement, USAA made payments to compensate the

Sherer’s for the injuries sustained to Teal arising from the

negligence of the underinsured motorist, Mr. Linginfelter.    In no

way were these payments compensation for the enhancement of

Teal’s injuries arising from General Motors design of the

passenger restraint system.    We agree with the Trial Judge who

stated:

     It is this Court’s opinion that the settlement by
     General Motors is, while for the same injury, not for
     the same portion of that injury for which payment was
     made or settlement was made by USAA on behalf of the
     driver of the vehicle; that these are separate, even
     though resulting in one injury, and that the
     subrogation would not be for this portion of the injury
     attributable to General Motors.



            For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below.    Costs of appeal are adjudged against USAA.




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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
H o u s t o n M . G o d d a r d , P . J .




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C O N C U R :



     ( N o t P a r t i c i p a t i n g )
D o n T . M c M u r r a y , J .



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W i l l i a m H . I n m a n , S r . J .




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