TALAT PARVEEN, ET AL.
ACG SOUTH INSURANCE AGENCY, LLC, ET AL.
August 21, 2019
from the Circuit Court for Washington County No. 36261 J.
Eddie Lauderback, Judge
appeal arises from an action commenced by two insured parties
against their insurance agent and the insurance agency where
he was employed after the insureds' insurance carrier
refused to provide excess uninsured motorist coverage because
it was not included in the insureds' policy. The insureds
alleged that their insurance agent failed to procure the
requested insurance on their behalf and that they
consequently had suffered monetary losses. The Trial Court
applied a statutory rebuttable presumption that the insureds
had accepted the provided coverage by paying their insurance
premiums, pursuant to Tennessee Code Annotated §
56-7-135(b). Upon its finding that the insureds had not
rebutted that presumption, the Trial Court dismissed the
insureds' action. The insureds have appealed. Upon our
determination that Tennessee Code Annotated §
56-7-135(b) does not apply to actions against an insurance
agent for failure to procure insurance coverage as directed,
we reverse the Trial Court's grant of summary judgment
and remand for the action to proceed.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded
Braxton Terry, Morristown, Tennessee, and W. Lewis Jenkins,
Jr., Dyersburg, Tennessee, for the appellants, Khurshid
Shaukat and Talat Parveen.
Charles W. Cook, III, and Rocklan W. King, III, Nashville,
Tennessee, for the appellees, Jeffrey Norris and ACG South
Insurance Agency, LLC.
Michael Swiney, C.J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
relocation from Georgia to Tennessee, Talat Parveen and
Khurshid Shaukat (collectively, "Plaintiffs")
contacted Jeffrey Norris, an agent of ACG South Insurance
Agency, LLC ("ACG"), to obtain a personal umbrella
insurance policy. Mr. Norris was authorized to write
insurance policies for several insurance carriers. Mr.
Shaukat attended a meeting with Mr. Norris in 2013. According
to Mr. Shaukat, he provided Mr. Norris with a copy of the
couple's existing umbrella insurance policy with State
Farm ("State Farm Policy") and requested the same
coverage in a new policy in Tennessee. Although Mr. Norris
denied ever seeing the State Farm Policy, he could not recall
the exact conversation he had with Mr. Shaukat. The State
Farm Policy, in effect from 2009 to 2013, had $2, 000, 000
excess uninsured motorist coverage. The State Farm Policy
included a separate "line item premium" for the
excess uninsured motorist coverage.
Norris assisted Plaintiffs with obtaining a new umbrella
insurance policy in Tennessee through Safeco Insurance
Company of America ("Safeco"). The new umbrella
insurance policy through Safeco ("Safeco Policy")
had a cheaper premium than the State Farm Policy. The Safeco
Policy was in effect from March 2013 through March 2014 and
included no excess uninsured motorist coverage. Plaintiffs
received a copy of the policy and were not charged for excess
uninsured motorist coverage. The policy was renewed from
March 2014 through March 2015, and again from March 2015
through March 2016. In February 2015, Plaintiffs received a
letter from Safeco informing them that the renewed policy
would be in effect from March 2015 through March 2016.
Neither renewed policy included excess uninsured motorist
coverage. Plaintiffs received a copy of their policy and
declarations pages. The parties do not dispute that the
Safeco Policy as written did not include excess uninsured
motorist coverage. Plaintiffs paid their premiums for each
policy period and had not inquired why the Safeco Policy was
cheaper than the State Farm Policy.
automobile accident occurred on November 10, 2015, in which
Dr. Parveen was injured and her vehicle was a total loss. The
vehicle that struck Plaintiff's vehicle belonged to a
wrecker service company. Mr. Shaukat subsequently learned
from Mr. Norris that their Safeco Policy did not have excess
uninsured motorist coverage. Thereafter, Plaintiffs filed a
lawsuit against the towing company who owned the wrecker
vehicle, seeking damages from the towing
company. Plaintiffs further served a copy of the
complaint on "Safeco Insurance Company" pursuant to
Tennessee Code Annotated § 56-7-1201. Safeco
subsequently filed an answer and a motion for summary
judgment stating that the Safeco Policy did not include
excess uninsured motorist coverage. The Trial Court in that
action granted summary judgment in favor of Safeco, ruling
that the Safeco Policy did not include coverage for excess
uninsured motorist coverage until January 4, 2016, nearly two
months after the accident.
December 2016, Plaintiffs filed this action against Mr.
Norris and ACG (collectively, "Defendants"),
seeking damages for Mr. Norris's failure to procure
excess uninsured motorist coverage on behalf of and as
directed by Plaintiffs when assisting them to obtain the
Safeco Policy. The parties conducted discovery.
Subsequently, Defendants filed a motion seeking summary
judgment in May 2018. In their motion, Defendants argue that
the action should be dismissed because Plaintiffs could not
overcome the statutory presumption created by Tennessee Code
Annotated § 56-7-135(b) that the Plaintiffs accepted the
coverage provided in the contract upon payment of the
insurance premiums. In addition to their motion, Defendants
filed a memorandum of law in support of their motion and a
statement of undisputed facts. They also included
documentation from the previous action involving Plaintiffs,
the wrecker company, and Safeco.
support of their motion for summary judgment, Defendants also
provided a declaration by Bill Burke, a representative of
Safeco, and the relevant Safeco Policy documents and letters.
According to Mr. Burke, it was the business practice of
Safeco to mail copies of declaration pages, correspondence,
and policy documents to policyholders. Mr. Burke declared
that Plaintiffs timely paid their premiums at all times while
the policy was in effect through the accident in November
2015. Per Safeco's standard policy, Mr. Burke stated that
a letter regarding renewal of the policy would ...