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Travelers Indemnity Co. v. Freeman2/28/2002
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded
Houston M. Goddard, P.J., delivered the opinion of the court, in which Herschel P. Franks and D. Michael Swiney, JJ. , joined.
OPINION
This litigation began as a complaint for a declaratory judgment. The plaintiff [Travelers] alleged that on May 12, 1999, it issued a policy of liability insurance to Kenton Freeman in Davidson County, which provided UM coverage of $500,000.00 to him and any family member, who is described as a blood relative residing in Freeman's household.
Travelers further alleged that on August 4, 1999, in Alabama, Alice Freeman, the former wife of Kenton Freeman, was killed when another vehicle struck her automobile, and that Will Freeman, age 11, the son of Kenton and Alice Freeman, was severely injured in the accident.
Travelers further alleged that the vehicle owned and driven by Alice Freeman was insured by Progressive Insurance Company [Progressive] which provided UM coverage of $500,000.00. The vehicle which struck the Freeman automobile was insured by Nationwide Insurance Company, with limits of $100,000.00 per claimant, which was paid.
Travelers further alleged that the Estate of Alice Freeman has demanded the entire amount of UM coverage from Progressive, and that a claim has been made on behalf of Will Freeman under Kenton Freeman's policy with Travelers. It is alleged that the Progressive policy is primary to that of Travelers as to any claim of Will or Kenton Freeman, and that Travelers has no liability to them under its policy, or alternatively, that Travelers is entitled to offset any payments made by Progressive.
Travelers sought a judgment that it did not provide coverage to Will Freeman, or in the alternative, that the Progressive policy is primary to the policy of Travelers, and that Progressive be directed to make no payments to the Estate of Alice Freeman until the right of the parties has been determined.
Kenton Freeman filed a response for himself and as next friend of Will Freeman. He alleged that Will Freeman, his son, resided with him in Franklin, Tennessee, and at the time of the accident, Will resided with both of his parents. The allegations respecting liability insurance were admitted.
By way of counter-claim against Travelers, Freeman alleged that Alice Freeman was driving her automobile northbound on I-65 in Chilton County, Alabama, when she was struck head on by an automobile driven by John Watson who was traveling southbound on I
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