Mark A. Shempert v. Kim Wright Cox, Personal Representative ad litem for the Estate of Robert Davis
2016 Tenn. App. LEXIS 611
| Tenn. Ct. App. | 2016Background
- In Sept. 2007 Mark Shempert was injured when his employer‑owned 2004 Sterling "Bobtail" collided with an uninsured motorist who died at the scene.
- The Shemperts had an automobile policy issued by Farmers that included uninsured motorist (UM) coverage plus an endorsement excluding UM coverage for vehicles "owned by or furnished or available for the regular use by you or a family member."
- Farmers contested coverage and filed a declaratory‑judgment action; earlier proceedings (Shempert II) were reversed on prior‑suit grounds and remanded.
- On remand, Farmers moved for summary judgment in the original tort case (Shemptert I), arguing the vehicle Shempert drove was employer‑furnished and available for his regular use, thus excluded from UM coverage.
- The trial court granted summary judgment for Farmers, finding the policy’s "regular use" exclusion unambiguous and not contrary to Tennessee public policy; the Shemperts appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "regular use" exclusion creates ambiguity in the policy | Shempert: endorsement alters the meaning of the repeated phrase "arising out of the ownership, maintenance or use," creating ambiguity to be construed for insured | Farmers: endorsement is clear in context and limits UM to insured car; no ambiguity exists | Court: No ambiguity; provision read in context is clear and exclusion applies |
| Whether the "regular use" exclusion violates Tennessee public policy / the purpose of UM statutes | Shempert: exclusion defeats the remedial purpose of Tenn. Code Ann. §56‑7‑1201 and thus is contrary to public policy | Farmers: exclusion is permissible; Tennessee precedent upholds regular‑use exclusions and limits UM coverage | Court: Exclusion does not violate public policy; affirmed summary judgment for insurer |
Key Cases Cited
- Terry v. Aetna Cas. & Sur. Co., 510 S.W.2d 509 (Tenn.) (establishes narrow purpose of Tennessee UM statutes)
- Hill v. Nationwide Mut. Ins. Co., 535 S.W.2d 327 (Tenn.) (vehicle‑based nature of liability/UM coverage; omnibus clauses extend protection)
- Shepherd v. Fregozo, 175 S.W.3d 209 (Tenn. Ct. App.) (upholding regular‑use exclusion against public‑policy challenge)
- Gillard v. Taylor, 342 S.W.3d 492 (Tenn. Ct. App.) (regular‑use exclusion does not violate public policy; daily department vehicle constituted regular use)
- Garrison v. Bickford, 377 S.W.3d 659 (Tenn.) (principles on insurance contract interpretation and UM statutory scope)