Day on Torts
In a car accident case, where the plaintiff’s summons to the other driver was returned with a note from the process server stating that the defendant was “avoiding service/said he would not cooperate,” the plaintiff was not entitled to proceed directly against her uninsured motorist insurance carrier.
In Urquia v. Seal, No. W2024-01842-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2026), the plaintiff filed a personal injury suit against the defendant following a car accident. The summons to the defendant was returned, stamped “NOT TO BE FOUND AFTER DILIGENT SEARCH AND INQUIRY.” In addition to this stamp, the process server hand wrote on the summons that the defendant was “avoiding service/ said he would not cooperate.”
The plaintiff did not make any further attempt to serve the defendant. When the one-year statute of limitations on the plaintiff’s claim against the defendant ran, the plaintiff’s uninsured motorist insurance carrier filed a motion for summary judgment, asserting that the plaintiff was “unable to proceed against it directly as the uninsured motorist insurance carrier because the action had not been properly commenced against the uninsured motorist.” After a hearing, the trial court granted summary judgment to the insurance company, and the Court of Appeals affirmed.
This case hinged on the interpretation and application of Tenn. Code Ann. § 56-7-1206(d). This subsection provides a way for a plaintiff to pursue a claim directly against their uninsured motorist insurance carrier when “the tortfeasor himself cannot be reached by process.” (internal citation omitted). Subsection (d) can be used when process is returned and marked “’Not to be found in my county,’ or words to that effect,” and it allows a plaintiff to proceed against the insurance company without complying with Tennessee Rule of Civil Procedure 3’s requirement that service be “reissued intermittently if not served within 90 days of issuance.” The plaintiff in this case argued that the “not to be found after diligent search and inquiry” stamped on the summons to the defendant was enough to trigger the protections of subsection (d), but the trial court and Court of Appeals disagreed.
Here, the notation on the summons indicated that the process server found and spoke with the defendant. That notation, then, “explicitly contradict[ed] the definition of a ‘not to be found in my county’ situation.” The Court wrote that it could not “hold that this return has triggered the terms of the statute where the statements of the process server so blatantly contradict the conditions required for the proper use of the ‘not to be found in my county’ stamp.” (internal citation omitted).
Further, the Court noted that Tenn. Code Ann. § 56-7-1206(e) provided the procedure to be followed “when the whereabouts of an uninsured motorist are discovered and permits an alias process to be issued against the motorist.” The Court reasoned that “the existence of [subsection (e)] demonstrates the present circumstances do not trigger the terms of Tennessee Code Annotated section 56-7-1206(d).” The Court held:
Rather, we hold only that, in this case, the written statements of the process server constituted sufficient evidence that the return at issue was not a “not to be found in my county return” despite being stamped as one. In effect, we hold that the statute did not create a “rubber stamp” requirement but requires one to pay attention to “the man behind the curtain” where such a blatant contradiction between the return at issue and the defined term of a “not to be found in my county” return exists. THE WIZARD OF OZ (Metro-Goldwyn-Meyer 1939).
Because subsection (d) was not triggered, and because the plaintiff failed to take any additional steps to serve the defendant, summary judgment for the insurance company was affirmed.
Judge Smith wrote a dissent in this case, stating that she believed that “section (d) of the UM statute was automatically triggered by the stamp on the summons, which unequivocally and without dispute state[d] ‘NOT TO BE FOUND AFTER DILIGENT SEARCH AND INQUIRY.’”
This opinion was released three months after oral arguments in this case.