The Tennessee uninsured motorist statute, oftentimes referred to as the “UM statute,” gives the plaintiff’s insurer (the uninsured or underinsured motorist carrier) the option to defend in the name of the tortfeasor/at fault party or in the name of the insurer. Specifically, the statute, as it concerns this issue, states:
“[t]he company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, that nothing in this subsection (a) shall prevent the owner or operator from employing counsel of the owner's own choice; and provided, further, that the evidence of service upon the insurance carrier shall not be made a part of the record.”
Of course, the ability of a plaintiff to proceed against the insurer is first conditioned upon the plaintiff obtaining service on the insurer.
The decision to defend in the name of the uninsured motorist or in the name of the insurer is strategic. Any number of factors can impact this decision.
An issue that seems to be coming up more and more is the timing of the election of the insurer to defend in the name of the insurer or the uninsured motorist. I see this issue coming up as early as party depositions. I see it raised in depositions for medical proof. I even see it raised in notices of depositions where opposing counsel will state in the notice that counsel for the uninsured motorist must make an election prior to or at the medical proof deposition if counsel wants to ask questions.
Again, timing of the election seems to be a recurring issue. However, there is nothing in the statute that indicates an election to defend in the name of the insurer or the uninsured motorist must be made prior to any deposition. My interpretation of the statute is that the election just needs to be made prior to trial. In the UM statute, there is no specific day, date, or activity, prior to trial, by which the insurer must make the election. And, if the insurer defends in the name of the insurer until immediately prior to the trial, the insurer still has the right to defend in the name of the uninsured motorist. This was confirmed in Fyke v. Clark, 1989 Tenn. App. LEXIS 794 (Tenn. Ct. App.).
In Fyke, Clark had defense counsel and the uninsured motorist, State Farm, had separate defense counsel. Prior to trial, State Farm defended in the name of the insurer rather than in the name of Clark. Prior to trial, counsel for Clark and State Farm agreed that State Farm would defend in the name of Clark. Plaintiff objected. “Plaintiff argues that State Farm should be prohibited from participating in the defense of the lawsuit because State Farm elected to represent itself, and not Ms. Clark, in all of the pretrial proceedings. It is plaintiff's insistence that State Farm, pursuant to Tenn. Code Ann. § 56-7-1206(a) had an election to make, i.e., to defend the lawsuit in the name of Ms. Clark, the "owner and operator," or "in its own name." Id. at *5. Without getting into all of the discussion, the appellate court stated “State Farm has a definite interest to protect and, under the facts here, the protection of that interest is not in conflict with but, to the contrary, is in harmony with Ms. Clark's interest. In the context of the facts of this case, we have examined Tenn. Code Ann. § 56-7-1201, et seq., and find nothing to prohibit State Farm's participation in the defense of this suit.” Id. at *8.
Fyke did not set a deadline for the insurer to make the election. Rather, the appellate court in Fyke read the statute as it was written. The insurer elected prior to trial and had the right to defend in the name of the uninsured motorist. I think this is critical information to remember when opposing counsel is insistent on the insurer making a premature strategic decision as to whose name to defend under.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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