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§15.9 Allocation of Fault to an Unknown Party in a Motor Vehicle Case

The Case: Breeding v. Edwards , 62 S.W.3d 170 (Tenn. Ct. App. 2001).

The Basic Facts: Defendant in automobile accident case blamed a "John Doe." Plaintiff sued "John Doe" and served Plaintiff's uninsured motorist carrier. The uninsured motorist carrier sought dismissal of the complaint, relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).

The Bottom Line:

  • "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." 62 S.W.3d at 173-74.
  • "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 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.FN3 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.
    FN3 We 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."
    Id. at 174.
  • "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." Id. at 175.
  • "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.
  • "[Tenn. Code Ann. § 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

    (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."
    Id . at 175.
  • "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." Id. at 175-76.
  • "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." Id. at 176.
  • "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." Id.
  • "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 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."
    Id.
  • "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 [Tenn. Code Ann.] § 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.FN4 Thus, so the argument goes, the existence of the phantom driver cannot be established, either by the plaintiff or the defendant, and, consequently, Breeding has no right to recover against Farmers.FN5
    FN4 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 not attribute fault to a nonparty 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.

    FN5 Of course, this particular argument assumes that there is no individual, other than Edwards or maybe an 'occupant[] in the insured vehicle,' who can testify to the 'existence of such unknown motorist.' We do not know, at this preliminary stage of the proceedings, whether this assumption is correct or not. This being the case, we arguably could have rejected this particular argument on the basis that 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. However, since both parties seem 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 argument of Farmers."
    Id. at 176-77.
  • "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." Id. at 177.
  • "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 [Tenn. Code Ann.] § 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 [Tenn. Code Ann.] § 56-7-1201(e) is an evidentiary one and depends upon the proof at trial; that issue is also unaffected by Brown." Id. at 178.
  • "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." Id.

Other Sources of Note: Marler v. Scoggins , 105 S.W.3d 196 (Tenn. Ct. App. 2002) (the determinative factor is not whether the plaintiff brings an uninsured motorist claim but rather if plaintiff has the right to bring such a claim, and if plaintiff can bring one then fault can be assigned against a John Doe defendant).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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