Summary
recognizing an insurer's right to take an insured's statement under oath
Summary of this case from Farmers Mut. Tennessee v. AtkinsOpinion
C.A. No. 03A01-9506-CV-00203.
September 29, 1995.
Appeal from Blount Circuit Court, Hon. W. Dale Young, Judge
GERALD C. RUSSELL, Maryville, for Appellants.
MARTHA MEARS, Mears and Marsh, Maryville, for Appellee.
REVERSED AND REMANDED
OPINION
This is an appeal from the action of the trial court in sustaining a motion for summary judgment. There are no material facts in dispute. Apparently the motion was sustained for failure of the insureds to cooperate under the provisions of the co operation clause contained in a policy of insurance issued to the appellants by the appellee.
After a loss to the plaintiffs' residence, the defendant gave notice that it wanted to take sworn statements from each of the plaintiffs pursuant to the policy provisions. The pertinent policy provision is as follows:
CONDITIONS APPLYING TO SECTION I
1. What to do in case of loss
If a covered loss occurs, the insured person must:
* * *
(f) submit to examinations under oath by a person named by us and sign the transcript of the examination.
* * *
Prior to the notice that the defendant wished to take the statements of the plaintiffs, the plaintiffs had employed Mr. Ness Judson, an independent insurance adjuster, to help them adjust their claim against the defendant. The plaintiffs presented themselves at the designated times and places to give their sworn statements. They, however, refused to give the statements unless accompanied by Mr. Judson. Mr. Judson advised the attorney for the defendant that he was not there to participate in the proceedings but only to observe. The defendant refused to allow Mr. Judson to accompany either plaintiff during the examination under oath even though the defendant had two representatives, Mr. Bud Smith, Tennessee Farmers Claims Investigations and Special Unit, Mr. Greg Watson, Tennessee Farmers Claims Representative and their attorney present. The plaintiffs refused to give a statement under oath in the absence of Mr. Judson.
Thereafter, the plaintiffs brought this action seeking to recover under the policy in question. The defendant filed a motion for summary judgment asserting that there is no issue as to any material fact upon which the plaintiffs can sustain a cause of action against the defendant. The trial court sustained the motion for summary judgment. No reasons were given for sustaining the motion. We presume, however, that the summary judgment was sustained due to the failure of the plaintiffs to cooperate in the investigation of the claim by the defendant in failing to give their statements under oath as required by the policy.
Insofar as we are able to determine, this is a case of first impression in this jurisdiction. Both parties cite Shelter Insurance Companies v. Spence, 656 S.W.2d 36 (Tenn.App. 1983). In Shelter, each plaintiff sought to be present when the other gave a statement under oath. In that case, the court held that no such right existed but that the parties could have an attorney present so long as he did not take part in the examination.
We are of the opinion that Shelter has no application to the case at hand except, perhaps, as authority that a party has a right to have a witness present when a statement under oath is given. We, therefore, revert to the time-worn but sound principle that if there is any ambiguity or doubt as to the meaning of the provisions of the policy it must be construed against the insurer and in favor of the insured. Palmer v. State Farm Mutual Automobile Insurance Company, 614 S.W.2d 788 (Tenn. 1981). In the policy there is no prohibition against the insured having a witness present during the giving of the statement under oath nor is there any limitation as to whom witnesses, if any, might be. It would have been a simple matter for the insurance company to have written such a limitation or limitations into the policy.
An attorney present at the taking of the statement under oath who is not allowed to participate is nothing more than a witness since he is unable to function in any other capacity.
We are of the opinion that the plaintiffs presented them selves, ready, willing and able to give a statement under oath as required by the policy. The defendant's refusal to take the statements cannot be said to be a failure on the part of the plaintiffs to cooperate.
We reverse the judgment of the trial court in granting summary judgment to the defendants and remand the case to the trial court for such other and further proceedings as may be required. In so doing we do not express any opinion on any issue other than to hold that the defendant is not entitled to judgment as a matter of law.
Costs of this appeal are taxed to the appellee.
__________________________________ Don T. McMurray, J.
CONCUR:
___________________________________ Houston M. Goddard, Presiding Judge
___________________________________ Charles D. Susano, Jr., J.
ORDER
This appeal came on to be heard upon the record from the Circuit Court of Blount County, briefs and argument of counsel. Upon consideration thereof, this Court is of the opinion that there was reversible error in the trial court.
We reverse the judgment of the trial court in granting summary judgment to the defendants and remand the case to the trial court for such other and further proceedings as may be required. In so doing we do not express any opinion on any issue other than to hold that the defendant is not entitled to judgment as a matter of law.
Costs of this appeal are taxed to the appellee.
PER CURIAM