United States District Court,

S.D. Indiana, Indianapolis Division.

EMPIRE FIRE AND MARINE INSURANCE COMPANY, Plaintiff,

v.

James F. SARGENT; Randy McVey, as personal representative of the Estate of

Rachel S. McVey; Karen Ritchie; B.M., a minor, by Her Parent and Next Friend,

Randy McVey; and M.M., a minor, by her Parent and Next Friend, Karen Ritchie,

Defendants.

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 37, 46) [FN1]

 

FN1. This Entry is a matter of public record and will be made available on the court’s web site. However, the discussion contained herein is not sufficiently novel to justify commercial publication.

TINDER, J.

This case involves a dispute over car insurance coverage provided by a policy purchased by Defendant James F. Sargent from Plaintiff Empire Fire and Marine Insurance Company when Mr. Sargent rented a car from Enterprise Rent-a-Car. The parties have filed cross-motions for summary judgment seeking a declaratory judgment determining the rights of Mr. Sargent and Defendants Karen Ritchie and M.M. under the policy and Indiana law.

I. FACTS

This case arises from a motor vehicle accident that occurred on August 29, 2003. Many of the facts of the accident are not in dispute. Defendant Karen Ritchie was driving her car accompanied by her daughters, Defendants M.M. and Rachel McVey (who was nine months pregnant at the time and scheduled to give birth the next day), and her granddaughter B.M. Ms. Ritchie’s car was struck head-on when a car driven by Mr. Sargent that he had rented from Enterprise Rent-A-Car Company of Kentucky (“Enterprise”) crossed the center line of a highway. Tragically, Ms. McVey was killed, and Ms. Ritchie, M.M. and B.M. were seriously and traumatically injured. It appears undisputed defendants suffered damages in excess of $1,000,000, although the exact amount has not been established.

Crystal Hall was the Enterprise agent who rented the car to Mr. Sargent from its location in Madison, Indiana, on August 29, 2003. The rental was memorialized through Enterprise Rental Agreement Number 036711 (the “Rental Agreement” or “Agreement”). Enterprise’s self-insurance affords renters with limited personal liability coverage in the amount of $25,000 per person/$50,000 per accident. In addition to this standard coverage, Mr. Sargent purchased Supplemental Liability Protection Policy Number SI226451 (“SLP Policy” or “Policy”) with a liability limit of $1,000,000. In selling the Policy, Ms. Hall represented that the insurance would generally cover Mr. Sargent for any accident in which he was involved. However, she admittedly did not specifically explain the details of the SLP Policy or the Rental Agreement. The terms of the Policy and the Rental Agreement are not disputed and copies of them are attached as Attachments 2 and 7 to Plaintiff’s Designation of Evidence Regarding Brief/Memorandum in Support of Motion filed by Empire (Docket No. 39), respectively.

In the approximately twenty-four hours prior to renting the car, Mr. Sargent had consumed a large amount of alcohol, including twenty-six to twenty-eight beers and four to six ounces of Jim Beam. He had eaten only once during that period. Mr. Sargent’s blood alcohol level at the time of the accident was .193, well beyond the legal limit for a auto driver in the state of Indiana. He pled guilty to operating a vehicle while intoxicated in addition to other crimes, and was sentenced to more than eleven years in prison.

II. PROCEDURAL BACKGROUND

As a result of what it contends to be Mr. Sargent’s violation of the SLP Policy and the Rental Agreement, Empire refused to defend and indemnify him for the claims that have arisen as a result of the accident. On January 7, 2004, Empire brought this action seeking a declaratory judgment defining Defendants’ rights under the Policy. On April 4, 2005, Empire filed its Motion for Summary Judgment, asserting that it is entitled to a declaratory judgment that Defendants are not entitled to any liability coverage under the SLP Policy. The essence of Empire’s argument is that coverage is unavailable here because Mr. Sargent’s drinking and driving triggered an exclusionary clause in the Policy.

On June 8, 2005, Defendants James Sargent, Karen Ritchie and M.M. filed their Cross-Motion for Summary Judgment. In it, they assert that they are entitled to coverage under the SLP Policy because its exclusions render its coverage illusory and unconscionable, and therefore the Policy must be interpreted in their favor, allowing for coverage. The motions are now fully briefed. While the parties request that the court hear oral argument on the issues at hand, after careful review, the court concludes that oral argument would not assist in its determination, and rules as follows.

III. DISCUSSION

A. Standard of Review

Construction of a written contract is a question of law for which summary judgment is particularly appropriate. Ramirez v. Am. Family Mut. Ins. Co., 652 N.E.2d 511, 514 (Ind.Ct.App.1995). The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits and other materials demonstrate that there exists “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir.1999). On cross-motions for summary judgment, each movant must individually satisfy the requirements of Rule 56, ITT Indus. Credit Co. v. D.S. Am., Inc., 674 F.Supp. 1330, 1331 (N.D.Ill.1987), and the traditional rules for summary judgment will apply even though both parties have moved for summary judgment. Blum v. Fisher & Fisher, 961 F.Supp. 1218, 1222 (N.D.Ill.1997).

B. Supplemental Liability Protection Policy

An Enterprise brochure describes SLP Policy coverage as follows:

Optional Supplemental Liability Protection (SLP) provides Renter with minimum financial responsibility limits as outlined in the applicable motor vehicle financial responsibility laws of the state where Vehicle is operated AND excess insurance provided by Empire Fire and Marine Insurance Company, which supplies Renter … with third-party liability protection with a combined single limit per accident equal to the difference between the minimum financial responsibility limits set forth above and $1,000,000 Combined Single Limit per accident.

(Enterprise Rent-A-Car Summ. of Coverage Brochure, Pl.’s App. Attach. 5.) The Policy itself allows for excess car liability insurance for a “loss” involving “bodily injury” and “property damage” caused by an “accident” and resulting from the use of a covered “rental vehicle.” Empire agreed to indemnify any “insured” for such “loss” in excess of the “underlying insurance” for which this coverage applied during the “coverage period,” provided its liability applied only to the “ultimate net loss” in excess of such “underlying insurance.”

Insurance policies are contracts that are subject to the same rules of construction as other contracts. Ramirez v. Am. Family Mut. Ins. Co., 652 N.E.2d 511, 514 (Ind.Ct.App.1995). An insurance contract will be deemed ambiguous only if reasonable people would honestly differ as to the meaning of its terms. Id. An insurance contract is not regarded as ambiguous simply because controversy exists and the parties have asserted contrary interpretations of the language of the contract. Puryear v. Progressive N. Ins. Co., 790 N.E.2d 138, 139-40 (Ind.Ct.App.2003).

No party contends that the terms of coverage of the SLP Policy are ambiguous. Nor is it disputed that Mr. Sargent is the “insured” within the definition of the Policy and Rental Agreement, or that he suffered a “loss” involving “bodily injury” and “property damage” caused by an “accident” resulting from the use of a covered “rental vehicle” during the “coverage period.” The principle question then is whether one of the exclusionary clauses contained in the SLP Policy or the Rental Agreement exclude the coverage at issue. Particularly relevant here is the Policy’s drinking and driving exclusion.

C. Drinking and Driving Exclusion

The SLP Policy contains an exclusion of coverage for any loss arising out of an “accident” that occurs while the “insured” is under the influence of alcohol or drugs, or other substances unless prescribed by a physician. It also excludes coverage for any loss arising out of the use of a “rental vehicle” when such use is in violation of the terms and conditions of the “rental agreement.” The Rental Agreement describes one violation of the insurance contract as “… if there is reasonable evidence [the Renter was] under the influence of narcotics, intoxicants, or drugs.” (Hall Dep. Ex. 1.)

While insurers have the right to limit their coverage of risks and, therefore, their liability by imposing exceptions, conditions, and exclusions, American Family Mutual Insurance Co. v. Federated Mutual Insurance Co., 775 N.E.2d 1198, 1206 (Ind.Ct.App.2002), to be enforced these limitations must be clearly expressed. West Bend Mut. v. Keaton, 755 N.E.2d 652, 654 (Ind.Ct.App.2001). Looking at the terms of the drinking and driving exclusion contained within the SLP Policy, the court concludes that they are clearly expressed and unambiguous. Solely from applying the Policy’s plain and ordinary meaning, it would appear that the drinking and driving exclusionary clause unambiguously precludes coverage here. “[A]n unambiguous exclusionary clause is generally entitled to enforcement.” Lexington Ins. Co. v. Am. Healthcare Providers, 621 N.E.2d 332, 337 (Ind.App.1993) (citing City of Muncie v. United Nat’l Ins. Co., 564 N.E.2d 979 (Ind.App.1991)). But the court’s inquiry cannot end there. An insurance company may indeed limit its liability in such a manner, but only when done consistent with public policy. Id.

D. Do the Policy Exclusions Render the Policy’s Coverage Illusory?

Defendants contend that while the drinking and driving exclusionary clause may unambiguously preclude coverage here, it is unenforceable because other exclusionary clauses in the SLP Policy render its coverage illusory. They state that “[u]nfortunately, there are no circumstances under the SLP that would give rise to coverage due to the provisions in the SLP and Rental Agreement that excluded negligence and negligence per se in all circumstance [s], the very coverage that was reasonably expected by Sargent when he purchased the coverage.” (Br.Supp.Cross-Mtn.Summ. J. 10.) In so arguing, defendants point to two particular exclusions that they contend render the SLP Policy coverage illusory: the “any illegal purpose” exclusion and the “imprudent manner” exclusion.

The SLP Policy specifically limits coverage for any violation of the Rental Agreement. As for the illegal purpose exclusion, ¶ 13(b) of the Agreement defines one such violation as when the rental car is used or driven “for any illegal purpose, in a race, speed contest, to tow a vehicle or trailer.” (Pl.’s Designation of Evidence Regarding Br./Mem. Supp. Mot. Attach. 7.) As for the imprudent manner exclusion, ¶ 13(j) of the Rental Agreement defines that violation as when the rental car is used or driven “in a reckless or imprudent manner or if the car is deliberately damaged.” (Id.)

Empire is not refusing coverage under the SLP Policy under either of these exclusions. It expressly states that “Empire Fire, in fact, does not rely upon Paragraphs 13(b) or 13(j) of the rental agreement at all.” (Reply Br. Supp. Pl.’s Mot. Summ. J. 9.) Instead, it argues that coverage under the SLP Policy is excluded under ¶ 13(c), the drinking and driving exclusion previously discussed.

An insurance contract must be construed as a whole. Pennington v. Am. Family Ins. Group, 626 N.E.2d 461, 464 (Ind.Ct.App.1993). Construction of a contract as a whole requires reading beyond isolated phrases, and unclear terms can be clarified by reading the entire contract. Id. Selected clauses of an insurance contract, even if they themselves are invalid, do not necessarily render the entire policy illusory. Id. In this case, to rule that the two selected exclusionary clauses Defendants question render the entire SLP Policy invalid would be to allow select provisions of the Policy to overshadow its effect in total, or its application to the facts here. To be sure, Defendants do not question the validity of the exclusionary clause at the center of this case–the drinking and driving exclusion. Because this exclusion is valid, the court is not required to address whether the two specific exclusions Defendants contest are in fact illusory. [FN2]

FN2. If this question had been reached, it is most likely that these provisions would not have caused the Policy to be illusory. An insurance policy is considered illusory in Indiana only if “a premium was paid for coverage which would not pay benefits under any reasonably expected set of circumstances.” Meridian Mut. Ins. Co. v. Richie, 540 N.E.2d 27, 30 (Ind.1989). “Where an otherwise unambiguous insurance clause provides only illusory coverage when construed within the insurance contract in its entirety, the courts of this state will enforce the provision so as to give effect to the reasonable expectation of the insured.” Landis v. Am. Interinsurance Exch., 542 N.E.2d 1351, 1354 (Ind.Ct.App.1989).

The exclusions at issue in this case do not appear, under any interpretation including that most favorable to defendants, to leave Mr. Sargent with only illusory coverage. The exclusions do not render the possibility of coverage hypothetical or even remote; instead, the coverage could have been in force under any number of reasonably expected set of circumstances. This includes a scenario in which Mr. Sargent was not intoxicated while he was driving and if he had driven within the parameters of the law. Indeed, while the SLP Policy excludes any illegal or imprudent acts, these are not the equivalent to negligent acts, nor are they defined specifically as such in the Policy. Had the Policy so stated, a different result may have been dictated. See, e.g., Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 553 N.E.2d 909, 912 (Mass.1990) (in finding that an exclusion of “negligent” acts is illusory, the court stated: “[a] provision in an insurance policy that negates the very coverage that the policy purports to provide in the circumstances where the person is liable is void as against public policy.”). But that was not the case here.

Additionally, if the exclusionary clauses at issue are not illusory, the court would not need to address Defendants’ reasonable expectations argument. However, if it were to take up the issue, the court would likely find that any expectation Mr. Sargent had that the SLP Policy would cover any accident caused by his driving while intoxicated to be unreasonable.

E. Are the Policy Exclusions Unconscionable?

As an alternative argument for allowing coverage here, Defendants suggest that the court’s enforcement of the SLP Policy would be unconscionable. In support, they argue that Empire’s superior bargaining power, coupled with Mr. Sargent’s failure to read the terms of the Policy (and indeed, his contended inability to do so) suggest that it would be unconscionable for the court to enforce the Policy against Defendants.

“An ‘unconscionable contract’ has been defined to be such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept.” Stiefler v. McCullough, 97 Ind.App. 123, 174 N.E. 823 (Ind.App.1933). “The basic test of unconscionability is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-side[d] as to be unconscionable under the circumstances existing at the time of the making of the contract.” Weaver v. Am. Oil Co., 257 Ind. 458, 276 N.E.2d 144, 146 (Ind.1971). A contract is not unenforceable as unconscionable merely because one party enjoys advantages over another. Dan Purvis Drugs, Inc. v. Aetna Life Ins. Co., 412 N.E.2d 129, 131 (Ind.App.1980).

The terms of the SLP Policy are not so one-sided as to be unconscionable under the circumstances existing at the time of the making of the insurance contract. The Policy terms clearly and unambiguously exclude coverage for drinking and driving. If Mr. Sargent had read the Rental Agreement, the Enterprise brochure detailing the coverage or the summary of the SLP Policy itself, he would have been adequately informed that he did not have “coverage for negligently causing injury in the operation of the rental vehicle while under the influence of alcohol,” as Defendants contend. An insured who takes the time to check on his or her rights should understand that driving a rental car while under the influence of alcohol is typically a prohibited use that voids an insurance contract, and indeed was such a prohibited use in this particular instance. Furthermore, even if Mr. Sargent is not the “best reader the world” and could not comprehend the terms of the Rental Agreement or the SLP Policy itself, he could have asked to have his rights under the Policy described to him.

Which was in fact done in this case. When Mr. Sargent rented the car, Ms. Hall informed him that he would not have coverage if he used the car for an illegal purpose. She testified that she told Mr. Sargent that he “would not be covered … if [he] decide[d] to perform illegal acts.” (Hall Dep. 24:1-5.) Moreover, it is undisputed that Ms. Hall told Mr. Sargent not to drink and drive, and Mr. Sargent understood this admonishment. (Sargent Dep. 82, 102.) Whether Ms. Hall knew or should have known that Mr. Sargent was intoxicated is immaterial.

While Mr. Sargent contends that there is some issue of fact as to the tone Ms. Hall took when she informed him not to drink and drive, this factual issue is also immaterial to the analysis here. Assuming for purposes of summary judgment that Ms. Hall told Mr. Sargent that the SLP Policy would cover drinking and driving, or implied such by “laughing” or otherwise, this clearly contradicts the exclusions contained in the Policy itself. There was obvious documentation in the Policy, the Rental Agreement and other Enterprise brochures that should have clearly put Mr. Sargent on notice, prior to obtaining the car, that the Policy purchased to cover liability for negligent driving did not cover all types of negligent driving, including driving while intoxicated. The contract terms here could be easily understood by the average customer checking coverage, and thus it was not reasonable for Mr. Sargent to expect liability coverage for an accident that he caused because he was driving under the influence. Moreover, Mr. Sargent was not compelled in any way to purchase coverage in spite of the inclusion of a drinking and driving exclusion in the SLP Policy.

This finding comports with similar cases from other jurisdictions holding that drinking and driving exclusions are not necessarily unconscionable. See, e.g., Phila. Indem. Ins. Co. v. Carco Rentals, Inc., 923 F.Supp. 1143 (W.D.Ark.1996) (holding that a drinking and driving exclusion in an excess liability coverage policy did not violate Arkansas’ public policy); Hertz Corp. v. Home Ins. Co., 14 Cal.App.4th 1071, 18 Cal.Rptr.2d 267 (Cal.App.1993) (holding that because excess liability coverage is entitled to broader exemptions and exclusions than primary coverage, a conspicuous and unambiguous drinking and driving exclusion is enforceable therein); Pub. Employees Mut. Ins. Co. v. Hertz Corp., 59 Wash.App. 641, 800 P.2d 831 (Wash.App.1990) (holding that the drinking and driving exclusion in the rental car company’s liability policy did not violate Washington’s public policy because the prohibitive exclusion was directly related to an increased risk incurred by the rental company as a self-insurer). Therefore, the court concludes that the terms of the SLP Policy are not unconscionable and may be enforced.

IV. CONCLUSION

In reaching these conclusions, the court regrets that the outcome is not more favorable to Ms. Ritchie and M.M., both of whom presumably tragically suffered a great deal because of Mr. Sargent’s reckless and deplorable actions. However, this court is duty-bound to follow the terms of the law, including Indiana’s binding precedent, as well as the clear terms of the Policy, which compel this result. Therefore, for the reasons set forth above, Plaintiff’s Motion for Summary Judgment (Docket No. 37) is GRANTED and Defendants’ Cross-Motion for Summary Judgment (Docket No. 46) is DENIED.

Slip Copy, 2005 WL 2476203 (S.D.Ind.)

Court of Appeals of Tennessee.

Robin E.O.S. CRASTER

v.

THRIFTY RENT-A-CAR SYSTEM, INC., et al.

July 13, 2005 Session.

Sept. 29, 2005.

Direct Appeal from the Chancery Court for Knox County, No. 152025-2; Daryl Fansler, Chancellor.

OPINION

HERSCHEL PICKENS FRANKS, P.J.

The parties filed Motions for Summary Judgments. The Trial Court granted defendants’ Motion which stated defendant was not a proper party and insurance policy issued to plaintiff did not cover plaintiff’s damages. On appeal, we affirm.

In this action, plaintiff, a citizen of England, filed a Complaint against Thrifty Rent-A-Car System, Inc., and others, alleging that she entered into a rental car agreement and insurance agreement with defendants while on vacation in the United States (in Georgia), and that after being involved in an accident in the rental car while in Tennessee, defendants failed to provide any insurance coverage. She further alleged that her companion, Alison Ball, also entered into the same contractual relationship with and through Thrifty, and that Ball was driving the rental car when she negligently caused an accident which resulted in severe injuries to plaintiff. Plaintiff alleged that through Thrifty, she chose to purchase liability insurance through Empire Fire & Marine Insurance Company, and supplemental liability insurance through Reliance Insurance Company, and Thrifty acted not only as a car rental agent, but also as an insurance agent.

She further alleged breach of contract, bad faith, and violations of the Georgia Fair Business Practices Act, and the Tennessee Consumer Protection Act. Further, that Thrifty was guilty of negligent and/or fraudulent misrepresentation and inducement to enter into the contract due to its misrepresentations regarding the insurance coverage. She attached the rental agreement and a purported copy of the supplemental liability insurance agreement as exhibits to the Complaint.

Thrifty answered, admitting that plaintiff entered into a rental car agreement, but that the agreement was with Thrifty’s licensee, Courtesy Rentals, Inc, rather than Thrifty. Defendant denied or claimed no knowledge of the other allegations in the Complaint, and asserted the defenses of lack of jurisdiction, improper venue, failure to state a claim, and statute of limitations.

Plaintiff dismissed the other defendants pursuant to Tenn. R. Civ. P. 41.01.

Plaintiff then filed a Motion for Declaratory Judgment, asking the Court to construe the terms of the contract in question, and determine who were the proper parties to the Contract, along with a Motion for Partial Summary Judgment, asking the Court to rule that defendant was a party to the contract in question, that the Court had jurisdiction, and that the contract required defendant to indemnify Ball and/or provide benefits to plaintiff for her injuries.

Thrifty filed a response to plaintiff’s Motion for Partial Summary Judgment, as well as its own Motion for Summary Judgment, and attached an Affidavit of James Nelson, who stated that he was president of Courtesy Rentals, Inc., which is a Georgia corporation, and that the transactions between plaintiff and Courtesy occurred in Georgia. He stated that Courtesy is a licensee of Thrifty, that Thrifty has no ownership in the licensee. He stated that Thrifty allowed Courtesy to use its name and reservation system in exchange for payment of a license fee.

He further stated that on July 10, 2000, Courtesy entered into a rental agreement with plaintiff, Alison Ball, Peter Holling, John Felstead, and Ruth Erlemann, but that Thrifty was not a party to the agreement. The rental agreement was attached as Exhibits, which consisted of the rental statement and the separate rental jacket. Nelson stated the renters were given a copy of both documents at the time the rental statement was signed, and that plaintiff initialed the portions of the contract indicating that she accepted PDW (physical damage waiver) and SLI (supplemental liability insurance) but declined PAI (personal accident insurance).

He pointed out that the first paragraph of the rental jacket states that the agreement is between the renter and an independent licensee of Thrifty, which is Courtesy, and he stated that Paragraph 10 of the rental jacket states that “SLI is subject to the other specific exclusions which are summarized on the separate SLI brochure which is available at the rental counter” Nelson stated that a true copy of the brochure was attached (noting that the terms “SLI” and “SLP” are used interchangeably), and was available at the time the rental agreement was signed.

Nelson further stated that Paragraph 10(A)(1) of the rental jacket excludes coverage for claims made for bodily injury if the claim is made by an authorized renter. Nelson stated that the brochure states that bodily injury to the renter is not covered, as does the business auto liability policy issued by Reliance, which is referenced therein (and the endorsement page was attached to his statement). The rental jacket, states in paragraph 10 that “if I have initialed that I accept the optional SLI at the beginning of the rental, I am entitled to the following: A. Thrifty will protect Me against third-party liability claims arising out of the use or operation of the Car for (I) bodily injury or death of another (excluding any of My or Additional Renter’s family members related by blood, marriage or adoption residing with Me or them) and; (ii) Property damage other than to the car.” Paragraph 10(B) does state that the SLI is “subject to the other specific exclusions which are summarized on the separate SLI brochure which is available at the rental counter.” The attached brochure states that all limitations/exclusions are contained in “the Business Auto Policy, the Basic Rental Contract and the Addendum.” The brochure states that “SLP” does not provide coverage for “bodily injury” or “property damage” to the “Renter”. The endorsement page of the business auto policy which was attached, states that bodily injury does not apply to any authorized driver.

Plaintiff filed a Response in Opposition to the Summary Judgment and attached her own affidavit, which stated that she and Ball entered into a rental agreement and insurance agreement with Thrifty, and purchased supplemental liability insurance as part of that agreement. She stated that at no time during the transaction did any employee there tell them that they were conducting business with Courtesy, and no document placed or displayed at the counter let them know that they were dealing with any entity other than Thrifty. Plaintiff stated that she was not provided any additional information other than the rental statement, and nothing else was presented or explained to them by the employees.

Plaintiff then filed a Motion for Default, stating that defendants had failed to respond to plaintiff’s Request for Admissions within the requisite 30 days, and that subsequently, it should be deemed admitted that plaintiff and Ball entered into a supplemental liability insurance policy with defendant, that plaintiff was entitled to recover from defendant on the policy, and that defendant had knowingly withheld benefits, had acted in bad faith, and had made misrepresentations regarding the policy. Thrifty then filed a Counter-Complaint alleging that paragraphs 9 and 10 of the rental jacket state that plaintiffs as authorized renters agree to hold Thrifty harmless for all third party claims for bodily injury and any other losses. Plaintiff then filed a Motion for Summary Judgment, adopting the previously filed Motion for Partial Summary Judgment and a Motion for Declaratory Judgment, and all the attachments. Plaintiff also attached the deposition of Sayed Mansoor Fakhraie, who testified that he worked for a rental car company in Norcross, Georgia named All Rental, Incorporated, which his brother owned. He testified that he was the rental agent who waited on the “group of four from England” who came in to rent a mini-van, and that he explained to them that with international customers, usually their insurance policies would not cover them in the U.S., so they might want to consider taking out additional coverage, and they agreed. He testified that he had been doing rentals for 8-10 years, and was experienced in handling rental transactions.

Fakhraie testified that he offered three different types of insurance to them, one which covered the vehicle, one which was for injury to passengers in the car, and one which was for liability, and they chose the insurance for the car and third party liability, and were “comfortable with what they had for their own personal injury and health. They declined that.” He testified that he explained the liability insurance as “You’re covered up to a million dollars in case there is liability in a lawsuit against you and we will cover that for you up to $1 million.” He testified that they had to initial that they were accepting that, but there was just one premium, even though there were multiple drivers. He testified that he did not offer to show them the insurance policy, because the brochure was available on the counter. Further, that both he and All Rental got a commission for selling the SLI coverage.

Fakhraie further testified there was a problem with the credit card the renters were using, so once the transaction became a cash rental, they had to take the SLI, there was no option. Fakhraie testified that other insurance called PAI/PEP was also available, which would cover personal injury for the passengers, and he explained that to them, and they declined it. He testified that he gave them a rental jacket, as he did with every rental, and that no one ever asked to see the SLI brochure. Plaintiff also attached the deposition of James Michael Nelson, who testified that he was the sole shareholder of Courtesy Rentals, Inc. d/b/a Thrifty Car Rental in College Park, Georgia, a Georgia corporation. Nelson testified that he had owned the franchise for approximately 10 years.

Regarding the types of coverage available, Nelson explained that there was SLI, which covered liability to third parties, so that “if you run into somebody else’s car, it would cover the car and the people in the car–in the other car.” He explained that PAC covered the driver and passengers in the renter’s car, but SLI did not. Further that PAC covered the medical expenses of people in the car, and he thought it would cover the liability of a driver to a passenger, but was not sure. However, the SLI would not cover the driver’s liability to a passenger in the car.

Defendant then filed a Supplemental Motion for Summary Judgment, and attached the depositions of Nelson and Fakhraie, as well as Craster’s deposition, interrogatory answers and Ball’s request to admit answers. In plaintiff’s deposition, she testified she was 57 years old, lived in Cambridge, England, and had been employed until December 2002. She identified the rental agreement she signed, and said she remembered reading part of it, but not all of it. She testified that she did not remember seeing a rental jacket, and did not remember the rental agreement being folded and placed in a rental jacket. She testified that even though the agreement referenced a rental jacket, she did not ask to see one, and that “jacket” was not an English word, and she was not familiar with a jacket in relation to paperwork. She testified at the time of the rental she was tired and hot and had to sit down, and her companions asked questions about Thrifty, but she did not remember the questions or answers. Plaintiff testified that she believed she had comprehensive coverage that would cover “anything that may happen to either you in your vehicle or to somebody else in their vehicle”. She believed that she asked if the insurance was comprehensive, and was told that it was. She testified she could not remember for certain because of the accident, but she would usually ask that question as a matter of course.

She testified she did not ask questions regarding who owned that particular Thrifty franchise, because she thought “Thrifty was Thrifty, a big name and I thought that would be okay.” She testified the rental agents were helpful, and could not remember whether they refused to provide any requested information. She said she initialed the agreement as accepting PDW and SLI, but declined PAI/PEP, and she remembered that the agent explaining those to her, but she could not now remember what they were. She testified that if it had something to do with health insurance she would not have taken it, because she had taken out insurance for travel. She testified that her travel insurance had paid most of her medical expenses, and she thought she purchased comprehensive insurance, which meant that if she was injured as a passenger in the rental vehicle, it would be covered.

She could not remember whether there was an SLI brochure on the counter, and she could not remember any other documents or brochures concerning insurance on the night they rented the vehicle. She thought the insurance was being provided by Thrifty, and that she had never seen the rental jacket before her deposition. She further testified that Empire Insurance Company had paid $25,000.00 to settle their lawsuit.

Following arguments on the Motion for Summary Judgment, the Trial Court issued an Order on August 9, 2004, granting summary judgment to defendant, and further certified the Order as a final judgment pursuant to Tenn. R. Civ. P. 54.02, since defendant had a counter-claim pending.

The issue plaintiff presents on appeal is:

Did the Trial Court err in granting summary judgment for defendant rather than for the plaintiff?

An appeal from summary judgment is classified as a question of law and no presumption of correctness applies. Tenn. R.App. P. 13(d).

In this case, viewing the facts in the light most favorable to plaintiff, we still must confront the unavoidable fact that plaintiff admitted that she signed the rental agreement attached to the Complaint as Exhibit A, and relies on the same as her agreement with defendant. Plaintiff testified that she did not fully read the agreement before signing it, but this does not relieve her of the legal effect of the contract, as she acknowledges she signed the contract voluntarily, and was under no pressure or duress to accept. See Dixon v. Manier, 545 S.W.2d 948 (Tenn.Ct.App.1976). The contract which plaintiff signed explicitly states that “By signature below, I acknowledge that I have read and agree to the terms and conditions, both printed and written, including Physical Damage Waiver, that appear on this rental statement and on the separate rental jacket.” Plaintiff testified that she did not remember getting or reading the rental jacket, but also testified that others in her group dealt with this transaction in addition to her, and that at one point she had to sit down, leaving her companions to complete the transaction. She could not unequivocally state that the rental jacket was not provided, and testified that even though the rental jacket was specifically referenced in the agreement she signed, she did not ask about it.

Fakhraie, the rental agent who helped plaintiff and her companions, testified that he gave them a rental jacket, as he did with every rental.

The rental agreement demonstrates that plaintiff accepted the PDW and SLI by her initials, but declined PAI/PEP, which she admits. The rental jacket explains the PDW and SLI provisions, which are undisputedly the only provisions which plaintiff accepted.

Paragraph 10 of the rental jacket explains the SLI, or supplemental liability insurance coverage as: “Thrifty will protect Me against third-party liability claims arising out of the use or operation of the Car for (I) bodily injury or death of another (excluding any of My or Additional Renter’s family members related by blood, marriage or adoption residing with Me or them) and; (ii) Property damage other than to the car.” Paragraph 10(B) goes on to state that the SLI is “subject to the other specific exclusions which are summarized on the separate SLI brochure which is available at the rental counter.” The brochure expressly excludes coverage for bodily injury to a renter.

While the plaintiff claimed she had not seen the rental jacket, she attached paragraph 10 to her original Complaint as an exhibit, apparently relying on its terms..

While plaintiff testified she did not see the brochure, it is specifically referenced in the rental jacket, which is undisputedly a part of the plaintiff’s contract. It is well-settled in the jurisdiction that “when the language of a contract is plain, simple and unambiguous”, “it is the function of a court to interpret and enforce contracts as they are written, notwithstanding they may contain terms which may be thought harsh and unjust. A court is not at liberty to make a new contract for parties who have spoken for themselves.” Wilkerson v. Williams, 667 S.W.2d 72 (Tenn.Ct.App.1983); see also General Const. Contractors Ass’n., Inc., v. Greater St. Thomas Baptist Church, 107 S.W.3d 513 (Tenn.Ct.App.2002).

Incidentally, this rule applies in Georgia. See GeorgiaMagnetic Imaging, Inc. v. Greene Co. Hospital Authority, 466 S.E.2d 41 (Ga.Ct.App.1995).

We are constrained to enforce the unambiguous contract which plaintiff acknowledges she voluntarily signed, which as written, produces the result that plaintiff had no coverage for bodily injury because she was a renter. As the Trial Court stated in ruling from the bench, it is “an extremely strained argument that you can pluck one paragraph out of some document and claim that that is your contract without relying upon the other portions of it”

Finally, defendant argued in the Trial Court and this Court that Thrifty is not a proper party to this lawsuit because Thrifty was not a party to the contract. This point is moot since plaintiff did not establish a breach of contract claim in any event.

As to plaintiff’s fraud claim, we conclude that she could not demonstrate that any untrue statements were made by a Thrifty representative (which is required to prove fraud/misrepresentation.) See Shahrdar v. Global Housing, Inc., 983 S.W.2d 230 (Tenn.Ct.App.1998)). Plaintiff testified that she could not remember the exact conversation or any representations that were made. Taking the facts in the light most favorable to plaintiff, she did testify that she thought she was getting “comprehensive” coverage, although she could not remember how the coverage was explained to her or the exact discussion, she simply thought she would have asked for that because she usually did. On the other hand, plaintiff also testified she did remember declining one kind of coverage because she thought it would be duplicative of her travel insurance. We conclude the plaintiff did not offer material evidence of any intentional misrepresentation that was made knowingly or recklessly that was false. See Shahrdar. The Trial Court properly granted summary judgment on the this claim as well.

Plaintiff also raised a claim in her Complaint that defendant violated the Tennessee Consumer Protection Act, but failed to argue this issue in her brief. A review of the statute demonstrates that the only act which plaintiff could be complaining of would be in the nature of a misrepresentation (see Tenn.Code Ann. § 47-18-104), and for the reasons stated, this claim would be without merit.

The Judgment of the Trial Court is affirmed and the cause remanded, with the cost of the appeal assessed to plaintiff, Robin Craster.