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Cartwright v. Tennessee Farmers Mut. Ins. Co.

Court of Appeals of Tennessee, Nashville

August 21, 2014

SHIRLEY M. CARTWRIGHT
v.
TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Session June 5, 2014.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, in part; Vacated, in part; Case Remanded. Appeal from the Circuit Court for Maury County. No. 14231. Stella L. Hargrove, Judge.

Judgment of the Circuit Court Reversed, in part; Vacated, in part; Case Remanded.

Robert D. MacPherson, Lebanon, Tennessee, for the appellant, Shirley M. Cartwright.

Arthur E. McClellan and Elizabeth R. McClellan, Gallatin, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

OPINION

D. MICHAEL SWINEY, JUDGE.

Page 911

Shirley M. Cartwright (" Plaintiff" ) sued Tennessee Farmers Mutual Insurance Company (" Defendant" ) alleging breach of a contract of insurance. Defendant filed a motion for summary judgment. After a hearing, the Circuit Court for Maury County (" the Trial Court" ) entered an order finding and holding, inter alia, that Plaintiff's response to Defendant's motion was untimely and would not be considered and that Defendant was entitled to summary judgment. Plaintiff appeals raising issues regarding whether the Trial Court erred in finding her response untimely, whether the Trial Court erred in granting Defendant summary judgment, and whether the Trial Court erred in denying two other motions filed by Plaintiff. We find and hold that Plaintiff's response to Defendant's motion for summary judgment was filed timely. We, therefore, reverse the Trial Court's decision finding Plaintiff's response untimely and refusing to consider it. As it was error to refuse to consider Plaintiff's response to Defendant's motion for summary judgment, we vacate the grant of summary judgment to Defendant and the Trial Court's denial of Plaintiff's motions and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Background

On June 21, 2005, Plaintiff and her sister, Brenda Whitehead[1] purchased real property and a house located in Gainesboro, Tennessee[2]. Plaintiff and Ms. Whitehead applied for a casualty insurance policy through Defendant to cover the house and its contents (" the Property" ). Defendant issued a policy to cover the period from June 21, 2005 through June 21, 2006 (" the Policy" ). The Property was damaged by fire on August 6, 2005. Plaintiff made a claim under the Policy (" the Claim" ), which Defendant refused to pay. Plaintiff filed this suit in March of 2012.

Page 912

When refusing to pay the Claim Defendant asserted, among other things, that Defendant discovered after investigating the Claim that Plaintiff and her sister had provided materially false information when applying for the Policy. Specifically, Defendant alleged that when applying for the Policy, Plaintiff and her sister had denied ever being charged with, convicted of, or pleading guilty to any drug related crimes. Despite this denial in the application, Plaintiff testified during her statement given during Defendant's investigation of the Claim that she had been arrested in Ohio in 1975 for possession of marijuana seeds and apparently had pled guilty[3].

On August 6, 2005, the day the Property was damaged by fire, Plaintiff was residing there but was not at home at the time of the fire. Plaintiff's sister was living elsewhere at that time. Plaintiff testified during her statement that she had stayed at the house on the night before the fire and that Glenn Pigg[4] with whom Plaintiff was having a relationship, also had spent the night there. Plaintiff testified during her statement that it was her understanding that Glenn Pigg had been arrested for arson of the Property.

Defendant filed a motion for summary judgment asserting that the Policy contained a one year statute of limitations within which to file suit and that Plaintiff's suit was, therefore, untimely. After a hearing the Trial Court denied Defendant's motion after finding and holding, inter alia, that the contract at issue was not properly before the court, that the supporting affidavits did not satisfy the requirements of Tenn. R. Civ. P. 56.06, and that there were genuine issues of material fact.

Defendant later filed a second motion for summary judgment. After a hearing the Trial Court denied Defendant's second motion after finding and holding, inter alia, ...


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