Date: September 5, 2017
from the Circuit Court for Robertson County No.
74CC1-2015-CV-104 Ross H. Hicks, Judge
Farmers Mutual Insurance Company ("TN Farmers"),
a/s/o Jared Smalley and Cara Gurszecki ("the
Homeowners") sued Southern Damage Appraisals, LLC a/k/a
Willow Works ("SDA") in connection with a
construction project that SDA performed on the
Homeowners' house located in Robertson County, Tennessee.
SDA filed a motion for summary judgment alleging that the
suit was barred by the statute of repose contained in Tenn.
Code Ann. § 28-3-202. After a hearing on the motion for
summary judgment, the Circuit Court for Robertson County
("the Trial Court") entered its order granting
summary judgment to SDA after finding and holding, inter
alia, that TN Farmers' claim was for subrogation,
the claim was subject to the four year statute of repose
contained in Tenn. Code Ann. § 28-3-202, and as the
claim had been filed more than four years after substantial
completion of the work TN Farmers' claim was barrred. We
find and hold that the claim was one for subrogation
asserting a right pursuant to an alleged contract between the
Homeowners and SDA, that TN Farmers failed to show the
existence of any contract between the Homeowners and SDA, and
that even if a contract between the Homeowners and SDA did
exist coverage for such a contract would be excluded under
the insurance policy between TN Farmers and the Homeowners.
We, therefore, find and hold that the Trial Court did not err
in granting summary judgment to SDA.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Jonathan A. Garner, Springfield, Tennessee, for the
appellant, Tennessee Farmers Mutual Insurance Company a/s/o
Jared Smalley and Cara Gurszecki.
Benjamin E. Goldammer, Nashville, Tennessee, for the
appellee, Southern Damage Appraisals, LLC a/k/a Willow Works.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which FRANK G. CLEMENT, JR., P.J., M.S. and RICHARD H.
DINKINS, J., joined.
MICHAEL SWINEY, CHIEF JUDGE
December of 2009, the Homeowners sustained wind and water
damage to their house located in Greenbrier, Tennessee when a
tree fell on the house during a storm. The house was
approximately two years old at that time. The Homeowners made
a claim for the storm damage under their homeowner's
insurance policy with TN Farmers ("Insurance
time, TN Farmers had a contractual agreement with SDA
("the Quality Repair Program") for SDA to be a
preferred contractor for TN Farmers. SDA was hired to replace
the Homeowners' roof and perform some other work related
to the storm damage. Work was completed in April of 2010, and
the homeowner, Jared Smalley, signed a Quality Repair Program
Certificate of Satisfaction & Authorization to Pay
showing a completion date of February 26, 2010. TN Farmers
paid the claim pursuant to the Insurance Policy.
April of 2012, the Homeowners discovered water damage in
their house allegedly due to faulty roof repair. TN Farmers
paid to fix the roof and the areas of the house that had been
damaged, among other things. TN Farmers then sued SDA in
March of 2015 claiming subrogation under the Insurance Policy
to the right of recovery of the Homeowners.
filed a motion for summary judgment alleging that the suit
was barred by the four year statute of repose contained in
Tenn. Code Ann. § 28-3-202. SDA alleged that the work
was completed in February of 2010, the repose period under
the statue ended in February of 2014, and TN Farmers did not
file suit until March of 2015. SDA also alleged that the
claim raised by TN Farmers was barred by the voluntary
payment doctrine because TN Farmers was a mere volunteer as
to its payment related to the damages from the alleged faulty
roof repair and not, therefore, entitled to subrogation.
hearing, the Trial Court entered its order on December 14,
2016 granting summary judgment to SDA after finding and
holding, inter alia, that the instant case was a
subrogation action subject to the four year statute of repose
in Tenn. Code Ann. § 28-3-202, and as the claim had been
filed more than four years after substantial completion of
SDA's work, TN Farmers's claim against SDA was
barred. The December 14, 2016 order also found and held that
TN Farmers' payments to the Homeowners for the 2012 claim
were voluntary payments for losses not covered under the
Insurance Policy, and therefore, TN Farmers was not entitled
to seek subrogation. TN Farmers appealed the December 14,
2016 order to this Court.
dispositive issue in this case is whether the Trial Court
erred in granting summary judgment to SDA. As our Supreme
Court has instructed:
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. We review a trial
court's ruling on a motion for summary judgment de novo,
without a presumption of correctness. Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v.
Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103
(Tenn. 2010). In doing so, we make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of