The Tennessee uninsured motorist statute, commonly referred to as the “UM statute,” gives a plaintiff’s insurer (the uninsured or underinsured motorist carrier) the option to defend the case either in the name of the at-fault party or in its own name. The statute provides:
“The 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.”
Tenn. Code Ann. § 56-7-1206(a).
This right is triggered only after the plaintiff properly serves the insurer. At some point, if the case proceeds to trial, the insurer must decide whether to defend in its own name or in the name of the tortfeasor. That decision is strategic.
A recurring issue is timing. On occasion, plaintiffs attempt to force an early election, sometimes at party depositions or in notices of deposition for medical proof. In my experience, it is not uncommon for opposing counsel to include language in the notice stating that counsel for the UM carrier must make the election prior to or at the time of the deposition in order to ask questions.
But the statute does not require that. It imposes no deadline tied to depositions, discovery, or other pretrial matters. The only requirement is that the election be made prior to trial.
This interpretation was confirmed by the Tennessee Court of Appeals in Fyke v. Clark, 1989 Tenn. App. LEXIS 794. In Fyke, the UM carrier (State Farm) initially defended in its own name while the tortfeasor (Clark) had separate counsel. Shortly before trial, State Farm and Clark agreed that State Farm would switch and defend in Clark’s name. The plaintiff objected, arguing that State Farm had already made its election and could not change course.
“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 interpret the statute to impose a deadline. The court applied the statute as written: the insurer was required to make its election before trial and the insurer retained the right to defend in the name of the uninsured motorist. This is critical when opposing counsel insists on an early election. The statute does not require the insurer to commit before it is ready as long as it is prior to trial.
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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