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Poper v. Rollins8/15/2001
ed." Farmers notes that this statute has not been modified since Tennessee's adoption of comparative fault and asserts that application of the statute is unaffected by the doctrine of comparative fault.
In support of its argument, Farmers cites Erwin v. Rose, 980 S.W.2d 203, 207-208 (Tenn. Ct. App. 1998). In Erwin, the jury found the defendant to be 84% responsible for the plaintiffs' loss, which totaled $1,000,000. See Erwin, 980 S.W.2d at 205. The plaintiffs had an uninsured motorist policy for $100,000, and they sued their uninsured motorist carrier for the excess loss not covered by the defendant's $25,000 liability policy. See id. This Court held that the insurer was entitled to offset the $100,000 policy maximum by amounts received from other defendants, under the language of the uninsured motorist policy. See id. at 208-09. In so holding, the Court commented:
While McIntyre v. Balentine did abolish joint liability, we do not think it changed the statutes that govern uninsured- underinsured motorist insurance or the private contract policy provisions that have been consistently construed to give the insurance company the credit it seeks in this case. Id. at 207.
Poper rightly notes that Erwin is distinguishable from the facts of the case at bar, because the policy in Erwin included broader language that permitted the deduction of sums recovered from other defendants. See id. at 208. However, Tennessee Code Annotated § 56-7-1201(d) clearly provides that the limit of liability for uninsured motorist coverage is offset by "the sum of the limits collectible under all liability . . . insurance policies, . . . applicable to the bodily injury or death of the insured." Tenn. Code Ann. § 56-7-1201(d) (2000). (Emphasis added.)
As noted in Erwin, the doctrine of comparative fault adopted in McIntyre v. Balentine did not change this statute. Erwin, 980 S.W.2d at 207. It is well-established that the statutes governing an insurance policy become part of the policy, overriding any policy provisions to the contrary. See Sherer, 29 S.W.3d at 453-54. Therefore, the broad language of Section 56-7-1201(d) cuts across the language of Poper's policy, and limits the uninsured motorist insurer's liability to the policy amount offset by the sum of all policy limits collectible and applicable to the death of the insured. Consequently, under Section 56-7-1201(d), Farmers is allowed to offset its policy coverage by the amounts collected from other defendants. Under these circumstances, the trial court did not err in granting summary judgment to Farmers.
The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellant, Thomas C. Poper, and his surety, for which execution may issue if necessary.
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