                   IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON
              ----------------------------------------------------------------------------


ROBERT HAROLD PILGRIM and                        )
wife, FRANCES PILGRIM,                           )
                                                 )        Dyer Chancery
      Plaintiffs/Appellants                      )        Case No. 91-244
v.                                               )
                                                 )                                      FILED
EDWARD H. FRAZIER,                               )        Appeal No. 02A01-9611-CV-00294
                                                 )                             June 27, 1997
      Defendant/Appellee                         )
                                                                                       Cecil Crowson, Jr.
                                                                                        Appellate C ourt Clerk




          APPEAL FROM THE CHANCERY COURT OF DYER COUNTY
                     AT DYERSBURG, TENNESSEE
              THE HONORABLE JOE G. RILEY, CHANCELLOR




JOHN W. PALMER                                            MARK D. JOHNSTON
The Palmer Law Firm                                       217 W. Market St.
116 W. Court St.                                          Dyersburg, TN 38025-1326
P.O. Box 746                                              Attorney for Appellee
Dyersburg, TN 38025
Attorney for Appellants




AFFIRMED



                                                 WILLIAM H. INMAN, SENIOR JUDGE



CONCUR:


DAVID R. FARMER, JUDGE


ALAN E. HIGHERS, JUDGE
                                      OPINION

       The plaintiffs filed suit on October 15, 1991 against the defendant for

damages resulting from a traffic accident. An answer to the complaint was filed

December 16, 1991.

       The case apparently lay dormant until April 17, 1994 when the plaintiffs filed

a motion seeking the issuance of a summons upon Tennessee Farmers Mutual

Insurance Company, their underinsured carrier, alleging that they were informed on

March 25, 1994, by the defendant’s attorney, that the defendant’s liability coverage

was $25,000.00 and thus markedly inadequate to compensate the plaintiffs.

       The motion was granted by order entered May 2, 1994 and a copy of the

summons and complaint was served on Tennessee Farmers Mutual Insurance

Company on May 3, 1994, which filed its answer that the plaintiffs policy provided

uninsured/underinsured coverage for them in a limited amount. The policy required

the plaintiffs to:

       “1. Notify us as soon as possible of their intention to seek such coverage.”

       Tennessee Farmers Mutual filed a motion for summary judgment on October

2, 1995, based on the delay of 42 months after the accident and 31 months after the

commencement of the case, alleging that the notification to seek underinsured

coverage under the policy was not “as soon as possible.” The motion was

supported by the affidavit of John Washburn, a claims representative, who deposed

that his company had no notice of the insured’s intention to seek underinsured

coverage until May 3, 1994 when such papers were served.

       The plaintiffs filed only the affidavit of their attorney in contravention of the

motion. In his affidavit, counsel for the plaintiffs deposed that the defendant’s

attorney advised them of the policy limits on March 25, 1994 and, until that date,

“they had no way of knowing” that the defendant was underinsured, and “had no

reason to believe” that the defendant had minimum liability insurance.




                                             2
       The motion for summary judgment was granted, and the plaintiffs appeal,

presenting for appellate review the issue of the propriety of the dismissal of the

insurance company.

       The standards governing our 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, and our

task is confined to reviewing the record to determine whether the requirements of

TENN. R. CIV. P. 56 have been met. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991);

Foley v. St. Thomas Hosp., 906 S.W.2d 446, 452 (Tenn. Ct. App. 1995); Brenner v.

Textron Aerostructures, 874 S.W.2d 579, 582 (Tenn. Ct. App. 1993). TENN. R. CIV.

P. 56.03 provides that summary judgment is appropriate only where (1) there is no

genuine issue of material fact relevant to the claim or defense contained in the

motion, and (2) the moving party is entitled to a judgment as a matter of law on the

undisputed facts. Carvell, 900 S.W.2d at 26; Byrd v. Hall, 847 S.W.2d 208, 210

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

1993). The moving party has the burden of proving that the motion satisfies these

requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991).

       While the summary judgment procedure is not a substitute for trial, it goes to

the merits of the complaint and should not be taken lightly. Byrd, 847 S.W.2d at

210; Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983); Fowler v.

Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Foley, 906 S.W.2d at

452. It has been repeatedly stated by the appellate courts of this state that the

purpose of a summary judgment proceeding is not the finding of facts, the resolution

of disputed factual issues, or the determination of conflicting inferences reasonably

to be drawn from the facts. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33

(Tenn. 1988). Rather, the purpose of summary judgment is to resolve controlling

issues of law. Id.




                                           3
      In evaluating the propriety of a motion for summary judgment, we view the

evidence in the light most favorable to the nonmoving party and draw all reasonable

inferences in the nonmoving party’s favor. Byrd, 847 S.W.2d at 210-11. A motion

for summary judgment should only be granted when both the facts and the

conclusions drawn from the facts permit a reasonable person to reach only one

conclusion. Id.

      With the foregoing principles in mind, we think this case is controlled by a

recent decision of this Court, Whaley v. Underwood, 922 S.W.2d 110 (Tenn. Ct.

App. 1995).

      In Whaley, the policy provided underinsured motorist coverage, and the

insureds were contractually required to personally send copies of the legal papers in

their suit against Underwood. Suit was filed January 17, 1989 and, two years later,

they ascertained that the Underwoods’ liability was inadequate to cover the claim.

Whaley’s attorney sent a letter to the insurance company on April 2, 1991, informing

it that he might issue a summons and complaint “within the next few days” and

enclosing a copy of the complaint he had filed against Underwood. But no

summons or complaint was served until December 30, 1992, nearly four years after

the action was filed, and 20 months after the company was notified of a possible

underinsured motorist claim.

      The issue was whether the transmittal of the complaint on April 2, 1991

satisfied the policy requirement that the insured seeking underinsured motorist

coverage must also “promptly send us copies of the legal papers if a suit is brought.”

      Quoting from Allstate Ins. Co. v. Wilson, 856 S.W.2D 706 (Tenn. Ct. App.

1992), we held that


      [a] requirement in a policy for “prompt” or “immediate notice,” or that notice
      must be given “immediately,” “at once,” “forthwith,” “as soon as practicable,”
      or “as soon as possible” generally means that the notice must be given within
      a reasonable time under the circumstances of the case.


quoting Am. Jur.2d. Insurance § 1330.



                                          4
      We held that Whaley did not act within a reasonable time, because a 27-

month delay was too long and significantly that


      [t]he fact that [the Whaleys] did not learn until mid-February, 1991, that the
      Underwoods were underinsured is not sufficient, standing alone, to condone
      a failure to notify the UM carrier. . . . The Whaleys failed to show why it took
      so long before they determined that the Underwoods were underinsured.
      They offered no facts reflecting that they took reasonable steps to satisfy
      themselves that the Underwoods had adequate coverage. To defeat the
      insurance company’s motion, “it must be shown that the claimant exercised
      due diligence and reasonable care in ascertaining that there was coverage
      under the policy.”


Whaley, 922 S.W.2D at 114-15 (quoting Lee v. Lee, 732 S.W.2d 275, 276 (Tenn.

1987)).

      As we have shown, the plaintiffs offered only the affidavit of their attorney that

they “had no way of knowing” the defendant’s coverage and “no reason to believe”

he was underinsured. They simply relied upon the attorney for the defendant to tell

them about the amount of coverage; they “offered no facts reflecting that they took

reasonable steps to satisfy themselves that the defendant had adequate coverage.”

Whaley, supra, and they offered no evidence that they exercised due diligence and

reasonable care to ascertain the amount of the coverage. The affidavit of counsel

manifestly does not satisfy these requirements. A delay of 31 months is simply

unreasonable and violative of the contractual requirement of notice “as soon as

possible.”

      The judgment is affirmed at the costs of the appellant.



                                         ________________________________
                                         William H. Inman, Senior Judge

CONCUR:



______________________________
Alan E. Highers, Judge



______________________________
David R. Farmer, Judge

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