§49.16 Uninsured Motorist Cases – Proof Required in a No-Contact John Doe Case

The Case: Fruge v. Doe , 952 S.W.2d 408 (Tenn. 1997).

The Basic Facts: Plaintiffs were a driver and passenger in an automobile that sustained injuries when the driver swerved to miss an uninsured vehicle parked on a highway onramp. Plaintiffs brought suit against their uninsured motorist insurance carrier to recover benefits.

The Bottom Line:

• "This case is controlled by Tenn. Code Ann. § 56-7-1201(e) (1994).^FN1 In order to prevail on a claim for uninsured motorist benefits, the insured must meet the requirements of subsections 1(A) or 1(B) and (2) and (3). State Farm does not deny that Mr. and Mrs. Fruge have complied with subsections (2) and (3). The plaintiffs do not claim that their vehicle experienced actual physical contact with the vehicle parked on the highway. Consequently, the case turns on the provisions of subsection (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.' Since, for the purposes of subsection (B), the plaintiffs cannot rely upon their own testimony, the statements contained in Officer Rutherford's affidavit are determinative.

  FN1 (e) 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."

  952 S.W.2d at 411.
• "Subsection (e)(1)(B), enacted in 1989, allows recovery in cases where, for example, the insured is forced off the road by an unknown motorist without physically striking the insured's vehicle. The high standard of proof required by the amendment, clear and convincing evidence produced by witnesses other than the occupants, obviously was intended by the legislature as a safeguard against bogus claims arising from one-vehicle accidents. Cf. id. at 162." Id. at 411.
• "Causation is not mentioned in subsection (B). The only reference in subsection (B) to another portion of the statute is in the phrase 'such unknown motorist,' which refers to that portion of section (e) which defines unknown motorist as 'the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured.' The clause "which causes bodily injury or property damage" only identifies the owner or operator. Additional language would be necessary to indicate clearly that causation, as well as existence, must be proven by clear and convincing evidence. Since the requirement of subsection (B), clear and convincing evidence other than evidence provided by occupants in the insured vehicle, applies only to the existence of the unknown motorist, the other essential elements of the claim, including causation, may be established by the preponderance of the evidence. Also, evidence produced by the occupants of the vehicle is not inadmissible as to those elements." Id. at 412.

Recent Cases: Hindman v. Doe , 241 S.W.3d 464 (Tenn. 2007) perm. appeal denied (Sept. 17, 2007) (upholding judgment against uninsured motorist carrier finding evidence was sufficient for jury to conclude that presence of rock in roadway was caused by negligence of unknown motorist and finding evidence supported jury finding that driver was not negligent in efforts to identify unknown motorist).