delivered the opinion of the court,
Owners of an insured vehicle that was damaged by fire filed suit against their insurance company for breach of contract, failure to pay insurance claim in good faith, and violations of the Tennessee Consumer Protection Act. Insurer filed a counter-complaint alleging that one of the insureds had no right of recovery under the policy because she had no insurable interest in the vehicle and that the other insured was barred from seeking recovery under the policy because the insured failed to answer questions under oath when asked by the insurer. The trial court granted summary judgment to the insurer. Finding no error, we affirm.
I. Background
The Appellants, Mr. and Mrs. Spears, owned and insured a 2004 Chevrolet C15 Tahoe. 1 The policy, which was effective in July 2005, was issued by the Appellee, Tennessee Farmers Mutual Insurance Company (“TFMI”). Some time during July, the Spears decided to purchase a Ford Expedition and sell the Tahoe. 2 Mr. Spears inquired about the trade-in and retail values of the Tahoe, but thought he could sell it for more selling it himself. On July 30, Mr. Spears parked the vehicle near the road on their property and advertised the vehicle for sale. The Spears contend that they had the financial ability to buy the Expedition while paying for the Tahoe until it sold; however, they admit that they were behind in payments on the Tahoe at the time. 3
On July 31, the Spears had friends over for a cook-out and one of them, Ms. Eliza Boley, expressed an interest in buying the Tahoe. Mr. Spears told her he was asking $38,000 for the Tahoe; Ms. Boley offered to pay $32,000. She drove the vehicle during the party and asked Mr. Spears if he would consider selling it for $35,000 or $36,000. Mr. Spears said he would think about it and Ms. Boley took paperwork regarding financing the vehicle home with her and said that she would discuss the matter with her husband. At the conclusion of the party, Mr. Spears moved the Tahoe back to the front of the residence; he was the last person to drive the vehicle and, upon exiting the vehicle, locked it and set the alarm. 4
The next morning, August 1, Mr. Spears walked outside of the house and noticed that the vehicle’s lights were blinking. As he approached the vehicle, he noticed that the paint looked like something had been
On August 4, Mr. Spears gave a statement to TFMI claims adjustor, Lee Amo-nette, at TFMI’s Lafayette office. The statement was recorded, but Mr. Spears was not under oath and did not sign a transcript of his answers. Mr. Amonette referred the Spears’ claim to TFMI’s Special Investigations Unit because he suspected that it was “potentially fraudulent.” On August 10, several TFMI agents including TFMI’s investigator, Lee Brooks, a forensic chemist, Dennis Akin, and a fire cause and origin expert, Raymond Glenn Aslinger, went to the Spears’ residence to investigate the fire cause and origin for TFMI. Detective David Winnett from the Trousdale Sheriffs Department met them at the Spears’ residence as they took photographs and gathered evidence. Mr. Akin and Mr. Aslinger provided a written report of their findings and conclusions to TFMI on August 16 and 22, respectively. Their reports concluded that the fire was intentionally set using an accelerant, gasoline, and that there was no evidence of forced entry to the Tahoe. On August 26, Mr. Spears provided a recorded statement to Mr. Brooks at TFMI’s Lebanon office. Mr. Brooks asked Mr. Spears questions for approximately two and a half hours, but Mr. Spears was not placed under oath nor did he sign a transcript of his answers.
On September 14, Mr. Spears filed a Sworn Statement in Proof of Loss with TFMI seeking to recover money damages under the policy in the amount of $38,900.00. Based on the recommendation of Mr. Brooks, who felt there were unresolved inconsistencies in his investigation of the Tahoe fire, TFMI’s attorney, Arthur McClellan, sent Mr. and Mrs. Spears a letter on October 6, notifying them that TFMI was requesting that they answer questions under oath as provided for in their policy and that TFMI had appointed him to conduct the examination under oath (“EUO”). The EUO was scheduled for October 18 at Mr. McClellan’s offices in Gallatin, Tennessee. The letter asked the Spears to bring several documents with them and informed them that “the examination would cover all of the circumstances concerning the claim you have made as to the fire loss to your vehicle on July 31, 2005.” The letter also informed the Spears that they could have an attorney present, but that the attorney would not be allowed to participate.
On October 18, Mr. and Mrs. Spears went to Mr. McClellan’s office and brought most of the requested documents, but only Mrs. Spears answered questions under oath and the examination was cut short because the Spears had another appointment to go to. During the examination of Mrs. Spears, she became upset,
5
but re
On October 20, the Spears retained attorney Michael Clemons. Mr. Clemons wrote Mr. McClellan a letter on October 24 requesting “documentation and/or other proof substantiating your reasons for denial” of the Spears’ claim. Mr. McClellan responded by letter on November 2, informing Mr. Clemons that TFMI had not denied the Spears’ claim, but simply requested to question the Spears under oath as provided for in the policy. On November 4, Mr. Clemons responded to Mr. McClellan’s letter apologizing for “any assumptions on my part that [TFMI] had denied my clients’ claim.” He expressed that the Spears, despite some reluctance, intended to cooperate in TFMI’s investigation and provide the late-filed exhibits that Mr. McClellan had requested following the October 18 EUO of Mrs. Spears. On November 30, Mr. Clemons sent three of the four late-filed exhibits requested by TFMI and informed Mr. McClellan that the Spears “are ready to set up a time to for [sic] you to continue, and hopefully conclude, your investigation of their insurance claim.” Mr. Clemons and Mr. McClellan attempted to find a mutually convenient date to complete Mrs. Spears’ EUO and conduct Mr. Spears’ EUO in December 2005, but ultimately scheduled the EUO for January 31, 2006. On January 14, Mr. Clemons confirmed by letter to Mr. McClellan that the Spears were available and intended to complete the EUOs on January 31.
On January 25, Mr. Clemons informed Mr. McClellan by letter that the Spears had retained another attorney, Tim Bow-den, to represent them and, consequently, he was withdrawing from further representation of the Spears. On January 26, Mr. Bowden sent Mr. McClellan a letter informing him that the Spears would not participate in the previously schedule EUO on January 31 and that the Spears intended to bring legal action against TFMI for bad faith. The Spears did not attend the EUO on January 31.
On March 20, Mr. McClellan sent the Spears a letter requesting their presence at the law offices of Donoho, Taylor & Taylor in Hartsville, Tennessee on March 27, 2006, in order to complete Mrs. Spears’ examination under oath and to take Mr. Spears’ examination under oath pursuant to the terms of the policy. The Spears did not attend the EUO on March 27. On April 7, Mr. Brooks updated his TFMI case file with the note that since the Spears failed to attend the March 27 EUO, TFMI should seek a declaratory judgment and implead the amount of the repair estimate for the vehicle.
On April 7, 2006, the Spears filed a Complaint in the Circuit Court for Trous-dale County seeking compensatory and punitive damages and attorney’s fees based on allegations that TFMI had breached the contract of insurance, violated the Tennessee Consumer Protection Act, and acted in bad faith in not paying their claim under the insurance policy in violation of Tenn.Code Ann. § 56-7-105.
On June 12, TFMI filed an Answer and Counter-Complaint seeking a declaratory
On the same day, TFMI filed a motion to tender a check that had been issued on April 19, to the Clerk of the Circuit Court in the amount of $20,642.16, the estimated amount required to repair the vehicle, to be placed in an interest bearing account pending resolution of TFMI’s Counter-Complaint for Declaratory Judgment. The trial court granted the motion to tender on August 21, 2006.
Following extensive discovery, TFMI filed a motion for summary judgment on June 4, 2007. On September 19, 2007, the trial court entered an order partially granting TFMI’s motion for summary judgment by dismissing the Spears’ claims of statutory “bad faith” and violations of the Tennessee Consumer Protection Act; the court reserved the other matters. On October 13, the Spears filed a Motion for Reconsideration or Interlocutory Appeal. On November 16, the trial court entered an order denying the Spears’ motion for reconsideration, which it treated as a motion to alter or amend the September 19 order, and partially granting TFMI’s motion for summary judgment by dismissing the claims of Mrs. Spears based on the conclusion that she had no right to recover monies under the policy; 6 the remaining matters were reserved pending future orders of the court or resolution of the interlocutory appeal.
On November 26, the Spears filed a notice of appeal to the Court of Appeals regarding the partial summary judgment dismissing the Spears’ extra-contractual claims brought by Mr. Spears and all claims brought by Mrs. Spears. This Court denied Mr. Spears’ Tenn. R.App. P. 9 application for permission to appeal on January 9, 2008. Mrs. Spears’ appeal was dismissed by this Court on January 24, without prejudice to her right to appeal once a final judgment was entered following TFMI’s motion to dismiss for lack of a final judgment. On January 11, TFMI filed a motion for summary judgment seeking an order of dismissal as to Mr. Spears’ breach of contract claim.
On April 3, 2008, the trial court entered a final order granting TFMI’s summary judgment motion on the outstanding issue of breach of contract. TFMI subsequently voluntarily dismissed its counter-complaints against Mr. and Mrs. Spears without prejudice.
II. Standard of Review
The issues were resolved in the trial court upon summary judgment. Summary judgments do not enjoy a presumption of correctness on appeal.
BellSouth Adver. & Publ’g Co. v. Johnson,
If the moving party makes a properly supported motion, then the non-moving party is required to produce evidence of specific facts establishing that genuine issues of material fact exist.
MeCarley,
III. Analysis
Even though the trial court dismissed the bad faith and consumer protection claims of Mr. Spears and all the claims of Mrs. Spears first, we will address the breach of contract claim first as its resolution pretermits the other issues. TFMI
In response to TFMI’s motion, the Spears asserted that the use of the term “examination under oath” was not defined by the policy and was, thus, ambiguous and must be construed against TFMI. They also asserted that there were genuine issues of material fact as to whether the Spears cooperated with TFMI in its investigation of their claim because “[b]oth Tom and Dana Spears gave numerous statements, as they understood it, under oath to Tennessee Farmers representatives,” and “both gave depositions, under oath, to Tennessee Farmers’ attorney.”
A. Interpretation of the Policy
Questions relating to the interpretation of written contracts involve legal rather than factual issues.
Merrimack v. Batts,
The respective rights of an insured and an insurance company are governed by their contract of insurance.
Merrimack,
The insurance policy provided in pertinent part as follows:
Legal Action Against Us
No legal action may be brought against us until there has been full compliance with all the terms of this policy. In addition, under the Liability Coverage, no legal action may be brought against us until we agree in writing that the covered person has an obligation to pay, or until the amount of that obligation has been finally determined by judgment after trial. No person or entity has any right under this policy to bring us into any action to determine the liability of a covered person.
Duty to Cooperate with Us
All persons and entities seeking any coverage under this policy must:
1. cooperate with us and anyone we name in the investigation, settlement, or defense of any claim or suit; and
2. answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign transcript of the answers; and
3. promptly provide us all records, receipts and invoices or certified copies of them and/or allow us to copy them; and
4. submit all proof of loss as we may require; and
5. submit to medical examinations by physicians we select at our expense and as often as we reasonably request; and
6. authorize us to obtain medical and other relevant records.
We do not find the language of the policy to be ambiguous. The Spears contend that “as there is no definition of an examination under oath in the policy, only a vague statement by Mr. Brooks, the policy is, at best, ambiguous with no clear meaning.” The policy, however, does not use the term “examination under oath” or any other specialized term of art, rather it uses the common words “answer questions under oath.” Given that the terms of the policy were clear and unambiguous, the Spears were bound by them.
B. The Spears’ compliance with the policy requirements
Having found as a matter of law that the language of the policy is unambiguous, we must determine whether there is a genuine issue of material fact as to the Spears’ compliance with the terms of the policy in order to determine whether TFMI is entitled to summary judgment. In support of its motion, TFMI pointed to the fact that Mr. Spears never answered questions under oath as requested by TFMI and Mrs. Spears never completed her examination under oath. In response, the Spears contend that there are genuine issues of mate
Tennessee courts have upheld similar duty to cooperate clauses as a pre-condition to exercising an insured’s rights under the contract.
See Shelter Ins. Co. v. Spence,
The right of the insurer to take and the obligation of the insureds to give sworn statements in accordance with the terms of the policy is not questioned. Fire policies such as the one in question almost universally require that the insured cooperate with the insurer in the investigation of the fire as a condition precedent to performance by the company to indemnify the insured for his loss.
Shelter,
Courts in other jurisdictions have similarly interpreted the examination-under-oath requirement of an insurance policy and have consistently held that failure to submit to questions under oath is a material breach of the policy terms and a condition precedent to an insured’s recovery under the policy.
See Watson v. Nat’l Surety Corp. of Chicago, Ill.,
We note that the
Watson
case,
The Iowa Supreme Court held that submission to questions under oath was a condition precedent to an insured’s recovery under an insurance policy that contained such a provision, but that an insured need only substantially comply in order to preserve his or her rights under the policy.
Watson,
We are also not convinced by the Spears’ argument that because they gave depositions during discovery in the present action they have now complied with the terms of the policy. This Court has noted that there is a difference between an examination under oath for purposes of an insurance investigation and a deposition during discovery.
See Shelter,
Finally, the Spears contend that there is a genuine issue of material fact as to whether TFMI’s request to question Mr. and Mrs. Spears under oath was reasonable. The Spears contend that it was unreasonable for TFMI to request that the Spears submit to an examination under oath because they had substantially cooperated with TFMI in its investigation. The Spears also contend that under the terms of the policy “examinations under oath may only be taken in a reasonable manner.”
The policy provides that an insured is required to “answer questions under oath when asked by anyone we name, as often as we reasonably ask....” The reasonableness referred to in the policy relates to the number of times TFMI seeks to question the insured under oath.
7
The plain
Having found that the Spears are barred from seeking recovery under the policy as they materially breached the terms of the policy by failing to answer questions while under oath when requested by TFMI, we find the remaining questions — whether TFMI breached the contract of insurance by failing to pay the Spears’ claim, whether TFMI failed to pay the Spears’ claim in good faith, whether TFMI violated the Tennessee Consumer Protection Act, and whether Mrs. Spears had an insurable interest and right to recover under the policy — are pretermitted.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s grant of summary judgment dismissing this action.
Costs of the appeal are assessed to Tom and Dana Spears for which execution may issue if necessary.
Notes
. Only Mr. Spears’ name was on the vehicle’s title, but both Mr. and Mrs. Spears were named insureds under the policy. Mrs. Spears was the primary driver of the vehicle.
. The Spears had recently purchased a Ford Expedition because they found that it fit their needs better than the Tahoe.
. Mr. Spears, who was a construction contractor, explained that his income was cyclical and that he would go several months without income and then receive a lump sum payment for a project. Mr. Spears explained that this often resulted in him not making loan payments for several months, but then making several months’ worth of payments in a lump sum. Mr. Spears testified that his creditors were aware of his circumstances.
.Mr. Spears contends on appeal that he is unsure whether he locked the vehicle and activated the alarm system when he exited the vehicle on the night of July 31, 2005; however, Mr. Spears admitted in response to TFMI’s request for admissions that he did lock the vehicle and activate the alarm system. Mr. Spears also testified that he always locked the vehicle and activated the alarm system when he exited the vehicle and that he most likely did so on the night of July 31.
. There is a dispute as to why Mrs. Spears became upset. Mrs. Spears contends that in the middle of questioning Mr. McClellan stopped the questioning and asked the court reporter to go off the record; he then told Mrs. Spears in an accusatory tone, "Don't you understand that 90% of people do this to their own vehicle?” Mr. Brooks, who was present during the EUO of Mrs. Spears, testified that Mrs. Spears became upset while discussing the recent tragedies suffered by the Spears' family, including the death of both Mr. Spears' mother and sister. Mr. Brooks testified that Mr. McClellan stopped the questioning and allowed Mrs. Spears to regain her composure and to explain why such questioning was necessary.
. The trial court found that, because Mrs. Spears’ name was not on the vehicle title or on the financing instruments, she did not have an insurable interest in the vehicle and, thus, could not seek recovery for damages to it under the policy.
. Tennessee case law has established safeguards to ensure that such examinations are requested and conducted in a reasonable manner so as not to infringe on the rights of the insured.
See Shelter,