Cassandra Lynn LIPSCOMB v. John DOE.
Supreme Court of Tennessee, at Jackson.
Nov. 30, 2000.
32 S.W.3d 840
I am authorized to state that Chief Justice Anderson joins in this dissenting opinion.
Cassandra Lynn LIPSCOMB v. John DOE.
Supreme Court of Tennessee, at Jackson.
Nov. 30, 2000.
Fred P. Wilson, Memphis, TN, and Stuart A. Wilson, Memphis, TN, for appellee, Amerisure Companies.
John A. Day, Nashville, TN, and John D. Wood, Nashville, TN, for amicus curiae, Tennessee Trial Lawyers Association.
OPINION
BARKER, J., delivered the opinion of the court, in which, ANDERSON, C.J., and BIRCH, J., joined.
The primary issue in this case is whether a plaintiff properly initiates suit pursuant to the “John Doe” provisions of the uninsured motorist statutes when (1) the plaintiff is aware that the driver of the other vehicle is one of several persons, but (2) the plaintiff does not actually know which of the other possible drivers was responsible for the accident. The trial court dismissed the original “John Doe” complaint, finding that because the plaintiff was aware the other driver was one of three people, the other driver was not “unknown” within the meaning of the “John Doe” provisions. The trial court also denied the plaintiff‘s motion to amend her complaint pursuant to
On the early morning of September 24, 1995, the plaintiff, Cassandra Lynn Lipscomb, completed her night-shift at work and ate an early breakfast with several of her friends. At about 5:00 a.m., the plaintiff started her trip home to Memphis, and at some point during this journey, her car was struck from behind by another car. This other car struck the plaintiff several more times before finally forcing her off of the road. The other car had three occupants, one of whom went to the plaintiff‘s
After her attackers left, the plaintiff, who apparently did not realize that she had been shot, ran to a nearby phone to call the police. While dialing the phone, she saw blood coming from her chest, causing her to collapse into unconsciousness. Arriving shortly thereafter, the police rushed the plaintiff to the hospital, where doctors discovered that the bullet was lodged between her heart and lungs. The plaintiff remained hospitalized for a week and was released.
Within days of the plaintiff‘s shooting, officers of the Memphis Police Department arrested three individuals believed to be the persons involved in the plaintiff‘s accident and shooting. These three individuals, Antonio Chaney, James Logan, and Cory Dyson, were charged with attempted murder and aggravated robbery. In a later criminal proceeding arising out of this episode, Cory Dyson apparently admitted to being the driver of the car causing the plaintiff‘s accident.1
On October 7, 1995, the Memphis Commercial Appeal ran an article containing an interview with the plaintiff following her release from the hospital. The newspaper article also listed the names and addresses of three individuals arrested and charged with the plaintiff‘s robbery and attempted murder. About a month after the printing of the article, the plaintiff contacted her uninsured motorist carrier, Amerisure Companies, and informed an agent of Amerisure of the names of the suspects arrested and charged with her attack. In addition, the plaintiff told the Amerisure agent that the names and addresses of her alleged assailants were contained in the October 7 Commercial Appeal article, and she faxed a copy of the article to Amerisure.
On September 24, 1996, the plaintiff filed suit under the uninsured motorist statutes claiming damages sustained in her attack, which occurred exactly one year earlier. Pursuant to
Amerisure filed an answer in its own behalf as the plaintiff‘s uninsured motorist insurer, and alleged that the “name of the driver of the [other] vehicle was known or should have been known to the plaintiff prior to the filing of the lawsuit....” Pursuant to
In her response to the requests for admission, the plaintiff admitted the existence of the Commercial Appeal article and that the Memphis police arrested and charged the persons mentioned in the article. The plaintiff specifically denied, however, that she knew who actually drove the car the morning of her attack. In response to the last request for admission, the plaintiff stated: “Denied. I still do not know for sure who was driving the car. I
On December 5, 1995, Amerisure filed a motion to dismiss the complaint, alleging among other things, that “the plaintiff has failed to comply with the requirements of [Tennessee Code Annotated section] 56-7-1201 et seq.” More specifically, Amerisure argued that because the plaintiff was aware that the driver of the other car was one of three people, the “John Doe” provisions of
On February 13, 1997, Amerisure filed motion to dismiss any claims asserted by the plaintiff against Dyson, Logan, and Chaney, and by consent of the parties, the trial court consolidated all motions pending before it. After holding hearings on the issues presented by the motions, the trial court granted Amerisure‘s motion to dismiss the plaintiff‘s original complaint on October 31, 1997 for improper use of the “John Doe” procedures. The trial court also denied the plaintiff‘s motion to amend the complaint pursuant to
The Court of Appeals affirmed the judgment of the trial court in all respects. Addressing the amendment issue first, the court held that
The plaintiff then requested, and we granted, permission to appeal on the following issues: (1) whether the plaintiff‘s “John Doe” suit was properly dismissed; and (2) whether the trial court properly denied the plaintiff‘s motion to amend her original complaint to add additional defendants pursuant to
STANDARD OF APPELLATE REVIEW
In this case, we are asked to decide questions involving the proper scope of the uninsured motorist statutory scheme, as well as issues concerning the scope of
ANALYSIS
(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.
Amerisure essentially argues that because the plaintiff was aware that the driver or operator of the other vehicle was among a known universe of drivers, then the other driver was not “unknown” within the meaning of the uninsured motorist statute. Conversely, the plaintiff argues that because she does not actually know of the identity of the other driver and because the driver‘s identity is still at issue in this case, the suit was properly initiated under the “John Doe” procedures. According to the plaintiff‘s interpretation, the fact that the potential universe of drivers has been narrowed does not mean that the other driver is “known” within the meaning of the uninsured motorist statutes. We agree.
Our primary purpose in construing statutes is “to ascertain and give effect to the intention and purpose of the legislature.” See, e.g., Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000). “Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997). When the language of the statute is clear and unambiguous, then this Court usually applies the plain language of the statute to resolve the issue. See, e.g., State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000). Where the plain language of the statute does not directly address the issue or leads to an absurd result, however, this Court will look beyond the language of the statute and adopt a reasonable construction that provides for harmonious operation of the laws. See State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997).
The plain language of the statute is not determinative of the issue in this case.
Where the language of the statute does not speak to the precise issue, courts should “give consideration to the purpose, objective and spirit behind the legislation.” See Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). This Court has previously recognized that the purpose of each of the three requirements of
With this purpose in mind, we conclude that no intent to defraud can be inferred where an insured diligently discovers information on possible operators of the other vehicle, and where the insured communicates this information directly to the insurer within a reasonable time before filing suit. Consequently, the failure of the plaintiff to rename the possible drivers in the complaint is not materially prejudicial in any way. Because the plaintiff in this case informed Amerisure of the possible—though not certain—identity of the other driver who caused her accident, the insurer had an adequate basis from which to begin investigation and preparation for litigation. The plaintiff‘s failure to rename these individuals in her complaint, especially when such naming would amount to some degree of speculation, did not deprive Amerisure of any notice or opportunity to present a defense beyond that normally present in a “John Doe” action. If, and when, the identity of the other driver actually becomes known through the course of litigation, then the parties are free to proceed under the procedures outlined by the General Assembly in
We are reluctant to adopt the position advocated by Amerisure, which would have us hold that the plaintiff must name all persons within the possible universe of drivers before an action is proper under
We are also reluctant to adopt the approach advocated by the dissent in this case, which concludes that because the plaintiff “honestly believed” that a specific individual, such as Chaney, was the driver of the other car, she was not entitled to “abandon[ ] the traditional rules of pleading” in favor of invoking the “John Doe” procedures. The dissent apparently ignores that the jury is not bound to accept as true the plaintiff‘s “honest belief” as to the identity of the other driver, and in ignoring this potentially critical fact, the dissent turns a blind eye to the plaintiff‘s plight if the jury were to determine that her suspected driver was not the actual driver.
This very concern was expressed by the Georgia Court of Appeals in Smith v. Doe, 189 Ga.App. 264, 375 S.E.2d 477 (1988). In Smith, the plaintiff was the victim of a hit-and-run accident, and although the plaintiff did not actually know the identity of the other driver, several witnesses identified the other driver from photographs. In the subsequent suit for damages under his uninsured motorist policy, the plaintiff named “John Doe” as the nominal defendant, and in an alternative count, he alleged the suspected driver as the person responsible for the accident. The insurer then successfully moved to dismiss the “John Doe” complaint, arguing that the other driver was not “unknown” as evidenced by the plaintiff‘s alternative count. In reversing the dismissal, the Georgia Court of Appeals stated the plaintiff‘s quandary as follows:
If a jury should find against the appellant, that would establish that [the named party] was not the tortfeasor. That being so, the identity of the tortfeasor would be unknown, but the earlier grant of summary judgment to John Doe would foreclose a judgment against an unknown tortfeasor. [The appellant] would then be unable to obtain the judgment against the tortfeasor which is a condition precedent to recovery against the uninsured motorist carrier.
Smith, 375 S.E.2d at 479. As such, even though the identity of the other driver was reasonably suspected, the court permitted the plaintiff to allege alternative counts of liability against both “John Doe” and the suspected, though not certain, driver.
We agree with the rationale of the Georgia Court of Appeals in Smith, and we choose to follow a similar course. As such, where the plaintiff has no actual knowledge of the identity of the other driver, but the universe of suspected drivers has been narrowed through the plaintiff‘s reasonable investigation, the prudent plaintiff should allege alternative theories of liability against “John Doe” and the suspected driver(s). A trial court should then dismiss a “John Doe” complaint only when the identity of the other driver is no longer at issue. In this way, plaintiffs are able to
Although the plaintiff in this case did not allege alternative theories of liability in her original complaint, we disagree with the dissent that complete dismissal is the appropriate remedy for this shortcoming. The fact still remains (1) that the identity of the other driver is the subject of some dispute, notwithstanding the plaintiff‘s suspicions, and (2) that the insurer in this case has not been prejudiced in any material way by the plaintiff‘s failure to allege an alternative count of liability against Chaney. Dismissal the plaintiff‘s “John Doe” complaint under these circumstances is unreasonably harsh as it would unduly restrict the scope of the uninsured motorist statutes and would reach a result not contemplated by the General Assembly.
This Court has previously recognized that the uninsured motorist statutes reflect the “intention of the General Assembly to permit the insured to pursue, insofar as possible, [his or her] ordinary tort remedy against the uninsured motorist.” Cavalier Ins. Corp. v. Osment, 538 S.W.2d 399, 403 (Tenn. 1976).
The Court of Appeals in this case reasoned that because the plaintiff could not assert a cause of action against the driver of the other car,5 then she was also without a remedy against her insurer. Respectfully, however, this analysis is incomplete for all practical purposes, because it fails to take into account the effect of
[i]n the event the uninsured motorist‘s whereabouts is discovered during the pendency of the proceedings, an alias process may issue against the uninsured motorist. In such a case, the uninsured motorist shall be allowed a reasonable time within which to plead to the original process, and then the case may proceed against the uninsured motorist as if the motorist was served with process in the first instance.
Significantly, the General Assembly has provided that when “the uninsured mo-
AMENDMENT OF THE COMPLAINT
Because we hold that the “John Doe” procedures were not improperly used by the plaintiff in this case, we need not reach the issues of whether the trial court improperly denied the plaintiff‘s motion to amend her complaint pursuant to
CONCLUSION
Although the facts of this case are rather unique, we hold that a plaintiff may properly commence an action under the “John Doe” provisions of the uninsured motorist statutes,
Although both parties in this case have apparently narrowed the universe of possible drivers of the other vehicle, the identity of the other driver is still at issue, and he remains the subject of some dispute.
Costs of this appeal are assessed to the appellee, Amerisure Companies.
HOLDER, J., filed a dissenting opinion.
DROWOTA, J., not participating.
JANICE M. HOLDER, J., concurring and dissenting.
Lipscomb has failed to show, as required by
The “Unknown” Requirement
The majority correctly states that “[b]efore a plaintiff may recover in a ‘John Doe’ action ... the owner or operator of the other vehicle must be ‘unknown,’ and the plaintiff must satisfy the three requirements listed in
Nevertheless, the majority effectively dispenses with the threshold “unknown” requirement on grounds that there is no question under these facts that the other statutory requirements are satisfied:
[B]ecause the plaintiff took reasonable steps to discover the identity and addresses of the possible drivers, and because the plaintiff communicated this information to her insurer a full nine months before she filed suit, we conclude that the plaintiff properly commenced suit under the “John Doe” procedures of the uninsured motorist statutes.
Accordingly, the majority treats the “unknown” and due diligence requirements of the John Doe statute as a unitary concept. The statute, however, makes no provision for due diligence to act as a substitute for the requirement that the driver be “unknown.” The statute plainly requires that the driver first be found to be “unknown” before due diligence becomes an inquiry. The majority‘s view converts what is clearly a multi-prong statute into a balancing test.
This case implicates construction of the word “unknown” and no more. In its brief discussion of the meaning of the word “unknown,” the majority states, “Although both parties in this case have apparently narrowed the universe of possible drivers of the other vehicle, the driver still has not been positively identified and he remains the subject of some dispute.” I find “not positively identified” and “subject to some dispute” to be exceedingly generous definitions for “unknown” under the uninsured motorist statutes. Under these definitions, any degree of ambiguity as to the other driver‘s identity would necessarily convert a garden-variety automobile accident into a John Doe case.
Lipscomb stated in her response to Amerisure‘s request for admissions, “I honestly belie[ve] that Antonio Chaney was driving but I believe in Court Cory Dyson said he was driving.” The majority apparently finds Dyson‘s claim legally sufficient to undermine Lipscomb‘s honest belief as to the driver‘s identity. I cannot agree.
I would hold that a plaintiff cannot claim a driver is unknown when that plaintiff can narrow the universe of potential defendants to a reasonable number. In such cases, the course most closely aligned with the spirit, if not the letter, of our rules of procedure would be for a plaintiff to name in the complaint all reasonably suspected wrongdoers.2
The filing of a John Doe complaint is essentially an assertion to the court that the identity of the defendant or defendants could not be reasonably ascertained. See
I find no justification for abandoning the traditional rules of pleading in this case. I cannot agree that a choice between two persons is a sufficient basis upon which to invoke the “John Doe” statute. A choice between two known persons does not make the driver “unknown.” One of those persons was undoubtedly the driver. Lipscomb admitted that she honestly believed that she knew which of those persons met that description. Lipscomb should simply have named both Dyson and Chaney as defendants.
For the above stated reasons, I would hold that the John Doe statute was unavailable to Lipscomb because the driver was not “unknown.”
Amendment Under Tennessee Code Annotated § 20-1-119
As I would hold that the driver of the other vehicle was not unknown to Lipscomb, there remains the issue of whether Lipscomb could properly amend her complaint pursuant to
(a) In civil actions where comparative fault is or becomes an issue, if a defen-
dant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff‘s cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person‘s fault, either: (1) Amend the complaint to add such person as a defendant pursuant to
Rule 15 of the Tennessee Rules of Civil Procedure ....(2) Institute a separate action against that person by filing a summons and complaint....
The Court of Appeals ruled that
Even without legislative history to guide us, we may assume that one of the concerns was to prevent a defendant from naming and attributing fault to a previously unknown responsible party in its answer when the time for the plaintiff to bring the newly named party into the suit was insufficient or had passed. This concern, of course, arises only where the plaintiff has been unaware, until the defendant‘s answer, of the fault of another individual. Indeed, a review of Tennessee case law suggests that § 20-1-119 is implicated only where the defendant‘s answer apprises the plaintiff, for the first time of a responsible party. It is, thus, plain that § 20-1-119 was not intended to apply to a plaintiff like Whittlesey who, long before the defendant‘s answer to the complaint, had knowledge that a third party may be at fault for the complained of injuries.
Whittlesey, 142 F.3d at 345 (emphasis added) (citing Owens v. Truckstops of Am., 915 S.W.2d 420, 427 (Tenn. 1996); Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D. Tenn. 1996)). Relying upon Whittlesey and the cases it cited, the Court of Appeals held that § 20-1-119 is applicable only when the plaintiff is unaware of the fault of the third party when the complaint is filed. In this case, Lipscomb clearly knew that Logan, Chaney, and Dyson were potentially responsible parties.
The Court of Appeals’ reliance upon Whittlesey is misplaced. If a statute‘s language is expressed in a manner devoid of ambiguity, courts are not at liberty to depart from the statute‘s words. See Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). Accordingly, courts are restricted to the “natural and ordinary” meaning of a statute unless an ambiguity necessitates resorting elsewhere to ascertain legislative intent. Austin v. Memphis Publ‘g Co., 655 S.W.2d 146, 149 (Tenn. 1983).
Nothing in the statute requires that the party sought to be added be unknown at the time of the filing of the complaint. The language simply requires that the person “not [be] a party to the suit.” A plaintiff may know the identity of a suspected tortfeasor but may, for any number of reasons, justifiably refrain from naming that person as a defendant. See, e.g.,
Our decision in Owens does not compel a contrary result. In Owens, we stated that the plaintiff could not avail himself of
The Court of Appeals also cites with approval Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D. Tenn. 1996). In matters of interpretation of Tennessee law, the decisions of federal courts are not binding upon the courts of this state. See, e.g., Driver v. Tennessee Farmers Mut. Ins. Co., 505 S.W.2d 476, 478 (Tenn. 1974). Further, Soper did not require that the third party be unknown at the time of the filing of the complaint. The issue in that case concerned the adequacy of the defendant‘s pleading and the timing of the plaintiff‘s amendment pursuant to
I would conclude that, despite Lipscomb‘s improper use of the John Doe statute, Lipscomb is not barred from amending her complaint pursuant to