# FILED

July 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk ANGELA S. HOGAN, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9801-CV-00023 v. ) ) Sumner Circu

it SONYA M. REESE, ) No. 15609-C ) Defendant/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS GOODALL, JUDGE

JOE D. HARSH Harsh, Parks & H

arsh 123 Public Square Gallatin, Tenne ssee 37066 ATTORNEY FOR PLAINTIFF/APPELLEE

R. KREIS WHITE Adair, Schuerm

an & White 4701 Trousdale Dri

ve, Suite 211 Nashville, Tennessee 37220 ATTORNEY FOR DEFENDANT/APPELLANT-2- REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE 

# OPINION

In this case defendant

appeals a jury verdict for personal injuries resulting from an automobile accident in which the trial judge directed a verdict for the plaintiff on th e issue of liabilit y. This appeal takes i ssue with two aspects of the t rial co urt's d ecisio n, to wit , damages and lia bility.

I. With reg ard to l iabili ty: Plaintiff alleges in her com

plaint that her automobile was struck from the rear by the automobile driven by defendant. She alleg es specific acts of negligence including statutory violations and seeks r

ecovery for pa

in and suffering togethe r with loss of enjoyment of life.

In answer defendant

admits certain acts of negligence including failure to keep a proper lookout ahead and failure to see that which was plain to be seen and take proper act

ion with respect the

reto.

Prior to trial the defendant was allowed to amend her answer to allege comparative f

ault.

On October 27, 1995 in t he la t e afternoon plaintiff Angela S. Hogan
was alone in her automobile dri ving from Gallat in toward Henders onville on Highway 31A. Defendants Sony a M. Reese, ac

companied by

passenger Rocky Branham, was proceeding in the s ame direction on Highway 31A

to the rear of Mrs. Hogan. As Mrs. Hogan approached a stop light she

slowed or stopped her
car and was struck from the rear by Mrs. Reese. Verylittle prope rty damage occurred and Mrs. Hogan did not seek medical attention until tw o days following the accident.-3- Only three witnesses,

plaintiff Angela

S. Hogan , defend ant Son yaM. Reeseand passenger Rocky Branham, te stified as to the facts of the acci

dent. At t he conclus ion of all of the evide nce the trial court

could find no basis for comparative

negligence and d irected a verdict in favor of the plain

tiff on the issue of liability, thus sending the case to the jury on damages only. The j ury returned a verdict for the plaintiff as reflected by

the final judgmen

t as follows: After deliberation, the jury returne d and reported to the C ourt that ba sed on t he proo f submit ted and by a preponderance of the evidence that t he Plaintiff, ANGELA S. HOGAN , sustained total dam ages in the sum of SEVENTEEN THOUSAND SEVENH UNDRED FIFTY ($17,750.00) DOLLARS, as a result of the October 27, 199 5 a ccident. Said total damages were composed of ec onomi c damages in the amount of $ 4 ,395.1 6 and non-economi c da m ages of $13,354.84. Each juror did, upon being polled by the Ju d ge, acknowledge and confirm the verdict as reported by foreperson J erry An derton, was in fa ct the verdictagreed upon by each individual juror, and the jury as a whole. Therefore, based on the ver dic t rendered and the findings made by the jur y, it is therefore ORDERED, ADJUDGED AND DECREED 1. Plaintiff, AN

GELA S. HO

GAN, have

and recover from the Defendant, SON YA M. REESE, t he sum of SEVE NT EEN THOUSAND SEVEN HUNDRED FIFTY ($17,750.00) DOLLARS.

Defendant

filed a timely

motion for a new

trial complain

ing of the directed verdict on liability, the appl icability of the statutory presu

mptions of T.C.A. § 24-5-113(a)(3) an d the alleged erroneous i

nstruction by the c

ourt with respect to med

ical expense presum

ptions.

This motion wa

s overruled and defe

ndant appealed.
Appellant states thr

ee issues on appeal to -wit: 1. Did the circuit court

err in directing verdict

in favor of the p lainti ff as to liabil ity? 2. Did the circuit

court err by pe

rmitting introduc

tion of medical expenses o ther than the charges of chiropractor Ettlingerwith a presump tion of both reasonabl

ene ss and necess ity? 3. Was the circuit

court' s instruction related to a-4- medical expense presumption (T PI Civil 14.12) er

roneous?

The action of the trial court in directing a verdict in favor of the plaintiff as to liability pres ents a diffic ult iss ue on ap peal un der the necess ary, comparative

fault analysis

mandated by McIntyre v. Ballentine , 833 S.W.2d 52 (Tenn. 1 992) an d its pr ogeny.

While Eaton v. McLain , 891 S .W.2d 587 (Tenn. 1994) was actually decided on the "duty" issue, the discussion therein of the McIntyre effect where the negligence of both

plaintiff and defendant is alleged provides a good starti ng point.

Said the court:

[4] The recit

ation of these standards of review does not, however, pr

ovid e a satisfactory

answer to the issue before us because McIntyre has rad ically chan ged the question to be asked by the

trial court on a m

oti on fo r directed verdict/JNOV w hich alleges neglige

nce onthe part of the plaintiff. The

question now is not

whether the plaintiff was guilty of any negligence that p roximately caused the resulting injuries. Instea d, the q uestion is: assuming that both plaintiff and def

endant have been foun

d guilty of negligent conduct that proximately caused the injuries,was the fault attributable to

plaintiff equal to or great er than the fault attributable to the defendant. The trial court's dete

rminati on a s to whether reasonable min

ds could differ on

this new question is made moredifficult by the fac t th at it has not been provi ded with any guidance as to how to apportion fault . The formu lation of workable, m

eaningful standards t

o guide trial courts i

n this area is no

simple mat

ter; this is evidence

d by the marked divergence of opinio n o f courts and com mentators on whether fault should be

apportioned accordi

ng to the nature of the parties' conduc

t, the closeness of th e caus al relationship

between the conduc

t and th e injuries, or combination

of the two. Some commentators have taken an extre me p ositio n on this issue, arguin g that no rational or objective basis fo

r the apportionm

ent of fault exists.
We are unpersuaded by

the contention that the

re is no meaningful

way to provide g

uidance totrial courts and juries in apportioning fault,

or by the alternative conte

ntion that it-5- is unwise to provide

any such guidance. While we agree that itis impossible to formulate an exhaustive set of guidelines for apportioning

fault that will ade

quately cover t

he manifold cir cumstances in which negligence actions may arise, we nevertheless

beli eve that trial cour

ts and juries m

ust have some guidance, however imprecise and

imperfect,

in discharging their respective duties in appo rtioning fault. Eaton v. McLain , 891 S.W.2d 587 , 590-91 (Tenn. 19 94). Footnotes om itted.

This questio n addr essed in Eaton involved the determ ination of the McIntyre "fifty

percent rule" in pa

ssing on a motion

for a directed ver

dict made by the defendant. If, as a matter of law , the trial court or the appellate court may determine in a given case that the percentage o f f ault of the plaintiff

is at least 50% of the total fau

lt, then a directe

d verdict for the de

fendant is manda

ted.

This iss ue w as addressed by t he Eastern Secti

on of the Court of Appeals in the recent case of LaRue v. 1817 Lake Incorporated , 966 S.W.2d 423 (Tenn. Ct. App. 1997) Perm . App. denied (Apr. 13, 1998) wherein the trial courthad directed a ver dict in favor of "dra

m shop" defend

ants and then
a ddre ssed the "fifty per

cent rule" as to the plaintiff passenger and defendant driver. The trial court

heldthat under the proof the passenger LaR ue was at least 50% at fault and thereu

pon d ire cted a verdict in favor of the defendant driver. The Court of Appea

ls reversed, holdin

g: As in Silcox, there is ample evidence here suggesting that La Rue's decision to get on the motorcy

cle was illadvised and negligent. However, view ing all of the evidence in a light most favo

rable to plaintiffs , as we are re quired to do, we cannot say that r

easonable minds could reac

h only the co nclusion that LaRue was equally or more at fault than Brewer. We agree that t he conclu sion reached by the trial courtthat LaRue's fa

ult was equal to

or greater than Brewer's is a reasonable conclusion. We can not s ay, however, that there is not another concl usion t hat could be reache d by reasonable min

ds.
Brewer was the operator o

f the motorcy

cle and admittedly

was traveling too f

ast at the time

the accident occurred. It is not unreasonable to conclude that the accident was caused by exce ssive s peed rather than or in addition to Brewers state of into xica tion. Brewer' s blood alcohol co n tent was roughly twice that of LaRue's. In the final-6- ana lysis, as the Silcox

court noted, com

parative fault

is a question of fact within the jury's province, which should not lightly be invaded by the t

rial court. We

do not mean to imply in any fashion tha

t the tria l court's action gav e light consideration to the evidence or any other facet of the case. We are of the opinion tha t, under all the ci

rcumstances of this case, the question of the degree of fault between LaRue and Bre wer sho uld hav e been s ubmitte d to the jury. LaRue v. 1817 Lake Incorporated , 966 S.W.2d a t 427.

In the case at bar the s ituati on is reversed; here the trial court has directed a verdict for the plaintif f rather than for the defendant. Under a comparative

fault analysis this means that the trial judge has determ ined as a matter of law that the defendant is 100% at fault and plaintiff is zero percent at fa ult. Thus the controlling questio n for our determ

ination is whether or

not, acceptingthe evidence in the light most fa

vorable to the non-movant

defendant, there is material e

vidence from w

hich a trier of fact cou

ld find anypercentage of fault attributable to the p

laintiff. If so,

the compa

r ison becomes a qu

estion of fact for the jur

y and not a question

of law for the cour

t.

As in LaRue there is ample and indee d overwhelming

evidence of the fault of the defendant Re

ese. A verdict for

the plaintiff, how

ever, cannot be directed so as to cast 100% of t he fault upon

the defendant if re

asonable minds
can differ as to whet

her or not the plaintiff was in any

way at fault.

At trial the defendant Reese testified: A. I was in traffic and I was going towar d s Hendersonville

from Gallat

in. The light

had changed. I was goin g down and I saw this oth er car slowing down . Ms

. Hogan slammed on her brakes. I tried to stop but I didn't. I barely hit her and the car behind me did ha ve to t ake the shoulder of the road from hitting me.
Rocky Branham

, the passenger in t

he Reese car, testified: Q. Tell these folks w

hat happened. A. Sonya was going down the ro ad. M s. Hogan overhere put on her brakes and w e bu mped into her.

. . . Q. Do yo u rem ember s eeing Sonya' s car ( sic) a nytime-7- prior to right befor

e you ran into it? A. All the time. Q. Do you remember what any of the other ca rs looked like around the scene or the accident scene? A. I looked at the cars if that's what y

ou're asking. Q. I'm asking do you remember what any of them looked like at the scene of

the accident? A. Yes, sir. Q. Aside from Ms. Hogan's car and the car that

you were driving, do y ou reme mber any of the other vehicles or anything? A. No, sir. Q. And did you say

the light turn red? A. It turned red afte

r she stopped. Q. The light turned re d after she stopped? A. She stopped and then the light turned. Q. You're sayi n g Ms. Hogan stopped f irst and then the light turned red? A. Yes, sir, as far as I can remem ber. Q. Do you think yo

u could be wrong on that? A. I believe that's c

orrect. Q. You believe or are you absolutely sure? A. No, I'm not absolutely sure.

. . . Q. Well, if you're not a bsolutely certa

in, how would

you know? A. There were no cars in front of Ms. Hogan stopped. Q. There were no cars in front of her? A. No, sir. Q. Were there other

cars stopped in front

of the light, or do you know? A. No, sir. I couldn't be certain . I can't remember it's been so long ago.

In her discovery deposition testim ony Ms. Hogan testified that she had stopped about fif ty feet behind the car in fro nt of her.

In analyzing a similar

situation under pre-McIntyre law Judg e McAi ms for the Court of Ap

peals observed: [1,2] It is apparent

that the evidence is

in conflict on points materialto a finding of neglige nce inthe operation of the bus. Caldwell

says the bus did not c

ome to a sudden stop and th at t here was no need to bring it to a sudden stop because the vehicle immediately in front of him w as 150 feet away. The proof for plaintiffs, on the contrary, is cl earl y sufficient to support a jury

finding that the bu s did come to-8- asudden stop with out warning. Considering the entire evidence in the light most f avorable t o the plaintiffs as we are required to do, we thus have a state of facts from which th e jury could find that although Caldwell had 150 feet within which to stop the bus

and was therefore not faced with an emergency , as defendant insis ts, he brought it to an abru pt stop knowing tha t he was being followed by other traffic. Sellers, et al. v. American I ndustrial Transit , Inc., 35 Tenn. App. 46, 49-50, 242 S.W.2d 335, 336 (1951).

In Sellers as in Anderso n v. Carter , 22 Tenn. App. 118, S.W.2d 892 (1937) reasonable

minds could diffe

r as to whether or not plaintiff was gui lty of
some degree of proximatenegligence. If such precluded a directed verdict preMcIntyreit is today sufficient to force a comparison which is always a que stion of fact and not a quest ion of law.

"Although circumstances could arise under which a directed verd ic t would be appropriate i n a co mparative negl igence case, they

are rare." 57B Am.Jur. 2d

Negligence § 1282 (1989).
As has been said by

this court: In a jury case,

the issues of

negligence and proxim

ate cause are generally for the jury. Such issues may be pre-emped

by the T rial Judge only where the evidence and reasonab l e inferences therefrom are

so free of conflic

t that all reasonabl

e minds would agree with the decision of the tri al judge. Williams v. Brown , Tenn. 1993, 860 S .W.2d 854, 857. Husted v. Echols , 919 S.W.2d 43, 45 (Tenn. Ct. App. 1995). See also Prince v. St. Thomas Hospital, 945 S.W.2d 731, 735 (Tenn. App. 1996).

Considering

the evidence in this case in the light m ost favorable to

the defendant ther e is suffi cient evide nce fo r reas onab le mind s to fi nd so me percentage of fa

ult attributable to

the plaintiff. Thus, a directed verdict f or the plaintiff assessing 100% fault tothe defendant as a m atter of law is er

ror and must be reversed.

II. With regard to D amages:-9- Appellant next contends that T. C.A. § 24-5-113( a) is not applicable in this case so as to provide prima facie e vidence of the nece ssity and reasonableness

of cer tain me d ical expenses offered in evidence by plaintiff. Appellant's com

plaint alleges in per

tinent part: (c) Necessary a

nd reasonable m

edical expenses; copies of which are atta

ched hereto, per T.C.A. Sec tion 24-5-113: Sumner Regional Medi cal Center ------ -- $ 990.00 Suburban Rehabilitation ------------------- 1,207.0 0 Sumner Radiolo

gy -------- ----------- ------- 177. 00 Big B Drugs -----

----------- ----------- ------ 53.16 Dr. Kenneth Case -------------------- ------- 35.00 $ 2,462.16 Additi onally, Plaintiff has incurred $1,683.00 for treatment from Dr. Frank C. E tlinger; (d) Pain and discom

fort t o her neck, back,

and spine area; and (e) All other injuries and damages allowed by law. Relative to the alle

gations of medical expenses, defe ndant answers:
7. Defenda nts den y that T.C.A. § 24-5 -113(a)(3) applies or that T.C.A . § 24-5-113(b)(1) affords any presumption

of the necessity of the

medical car

e. Defendants are witho ut su ffici ent kn owled ge or i nforma tion to for m a belief as to the truth of the remaining alle gations of paragraph 7 and therefore demands strict proof.

Plaintiff filed a

pre-trial mo

tion in limine asserting in part: Plaintiff would show that there i s a re buttable presumption

that all the

medi[c]al bills incurred on her

behalf are both reasonable

and necessary pursuant

to T.C.A. § 24- 5- 113(B)(1) and (2) and istherefore entitled to said rebu ttable presumption. An itemization of

medical expenses inc urred as of the date of filing is contained in Plaintiff's Com plaint. Furth ermo re, on October 11, 1996, Plaintiff served u

pon counsel for De fendant, her answ ers to Interrogato

ries to which in relevant part giving a full and complete item

ization vi a copies of all me

dical bills and expenses incurred by Plaintiff as a result of the co llision which is the sub ject of this cause. To date, Defendant

has not served upon

the Plaintiff

any specifici temization of any bills produced in Plaintiff's Int errogatories to which Defendan t believes not to be reason able an d neces sary.-10- In th e alternative, Pla

intiff would show tha

t she is entitled to prima faci

e presumption provi

ded in T.C.A. § 24- 5-113(a)(1).

Defendant thereu

pon filed a pre-tri

al motion in lim

ine asserting: 3. Under Porter v. Green , 745 S.W.2d 874 (Tenn. App. 1987), the defendants seek a r uling in limine

precluding any reference to ca

usation of the plaintif

f's injuries abs en t competent

medical proof within a reasonable degr ee of medical c ertain ty. 4. The defendants, through counsel, moves the Court for an Order striking o

r exclu ding any presum

ption of the reasonableness

or necessity of

the plaint

iff's medical expenses absent

competent proof of the necessity of such care. In support thereof, the defendant calls the Court's a ttention to the unequivocal language of TCA 24-5-113(a)(3),

the statute that gives rise to a

presumption related to medical expenses in certain (and her

e, inapplicable) situations: 24-5-113. Medical, hospital or doct or bil ls - Prima facie evidence of necessity an d reasonableness. (a)(1) Proof in any ci

vil action that m

edical, hospital or doctor bills were paid or incurred because of any il lness, disease, or injury ma

y be i tem ized in the complaint or civil warrant

with a copyof bills paid or incurred attac hed as an exhibit to the complaint or

civil warrant. The bills itemized and attached as an e

xhibit shall

be pri ma facie evid ence that the bills so paid or incurred were necessary and reasonable.

. . . (3) The prima fa

cie presumption

shall apply to the medical,hospital and doctor bill s itemized wit h co pies o f bills attached to th e complaint or c

ivil warrant; provid ed , that the total amount of such bills does not

exceed the sum of two thousa nd five hundred dollars ($2,500).
In t his case, the plaint

iff seeks to circum

vent the plain meaning and pervert the purp

ose of the cited statute by incurringbills in ex cess of the $2,500.00 cap an

d trying to "hand-pick" bills in order to gain a n improper pre sumptive advantage where none is due.-11- Atcommo n la w reasonableness and necessity of medical expenses allegedly caused by the de

fendant are elem

ents constituting

a part of the burden of proof resting upon

the plaintiff. See 22 Am.Jur.2d " Damages " , § 197 (1988). To relieve this burden on small claim s , the legislature b

y chapter 734 of the Public Acts of 1978 created a prima fac ie p resumption of ne cessity and reasonableness un der certain conditi ons.

This act of the Gener

al Assembly

is presently codified

as T.C.A. § 2

4- 5-113(a)(1)(2)a

nd (3). The next ch

ange in the present codification as to the 1978 actwas chapter 481 of the Public Acts of 1 981 raising th e original $ 500 maximum

amount to the present maxim um amount o

f $2,500. This portio

n of the act, thus am

ended, provides as f

ollows: 24-5-113. Medical, hospital or d octo r bill s -- pr ima facie evidence of

necessity and r

easonableness. --

(a)(1) Proof in any civil action that medical, hospital or doctor bills were p aid or incurred because of any illness, disease, or injury may

be itemized in the

complaint or ci

vil warrant with a copy of bills paid or incurred attached as an exhibit to the complaint

or civil warrant . the bills itemized and attached as an exhib it sh all be prima facie evidence that the bills so paid or incurred were necessary and reasonable. (2) This section shall a pply only in per

sonal inju ry actions brought in a ny court by in jured parties aga

inst the persons responsible f

or causing such injur

ies. (3) This prima fa

cie presumption

shall a pp ly to the medical,ho spital and doctor bills itemized wit

h copies of bills attached to the com

plaint or civil warrant; pr

ovided, that the total amount of s

uch bills does not excee

d the sum of two thousand five hundred dollars ($2,500).

In order to qualify m

edical expenses unde

r this statute it is

necessary that such expenses be itemized and copies of bills therefor which have been paid
or incurred be attac

hed as an exhibit to

the complaint. Such

procedure was not followed in the case at bar.
By chapter 235 of the Public Acts of 1989 the General Assembly added
an additional p rocedure by which a plain tiff may establish a rebuttable presumption

that medical,

hospital and doctor bil

ls are reasonable.This 1989 act-12-

is now codified as T.C.A. 24 -5-113(b)(1) and (2)

.
This codification of the Act of 1989 is not lim ited as to the am

ount of such medical bills bu

t provides only a r

ebuttable presum

ption that such medical bills are reasonable a

nd does not address at all the question of w hether or not such medical bills were "necessary".

The codified 1989 ac

t reads as follows: (b)(1) In addition to the pro cedure described in subsection

(a), in any

civil action for personal injury brought by an injured par ty again st the person or perso ns alleged to be responsible for causing the injury, if a

n itemization

of or copies of the medic al, ho spital or doctor bills which were paidor incurred because of such personal injury are served upon the other parties a

t least ninety (

90) days prior to the date setfor

trial, there shall be a rebuttable presumption that such medical, hospital or doctor bills are reasonable. (2) Any party

desiring to offer e

vidence at trial to

rebut the presumption shal

l serve upon the oth er parties, at le ast forty-five (45) days prior to the

date set for trial , a statement of that party's intention to rebut the presumption. Such statement shall specify which bill or bills the party believes to be unreasonable. [A

cts 1978, ch. 734, § 1; T.C .A., § 24- 517; Acts 1981, ch. 4 81, § 1; 1989, ch. 235 , § 1.]

In the case at bar pla

intiff attached m

edical, hospital an

d doctor bills in response to request f

or production of docum

ent s in a manner suf

ficient to invoke the rebuttable pres umpt ion that such medical, hospital and doctor bills are reasonable.

"The fact a given am

ount is proven as undispute d m ed ical expenses does not prove those expens es were necessary." Karas v. Thorne , 531 S.W.2d 315, 317 (Tenn. App. 1975).
In the present case

the court charged t

he jury as to m

edical expenses: The next element of damages that Ms . H ogan may recover is for reasonable

and necessary expenses for medical care, services, supplies ac tual ly given in the treatment of a party as shown by th

e evidenc e. Now, in th is cas e some medical bills have been introduced in evidence, and because-13- these bills do not exceed a cer tain s um established by the law, you may

presume these

expenses were re

asonable and necess ary.

As the proof in the case did not establish pri ma facie evidence of necessity and reasonableness under T.C.A.24-5-113(a)(1)(2 ) and (3) because of the failure of the plaintiff to comply wit h the requirem

ents of T.C.A.

24-5- 113(a)(1) no evidenc

e of necessity a

nd reasonableness ap

pears in the recor

d.
Conceding that the response to pr oduction of docume

nt requests complies with T.C.A. 24-5-113(b)(1 ) an d (2) a rebuttable p resumption of reasonableness

under T.C.A.24-5-113(b)(1) is e stablished but no prima facie evidence of necess

ity exists.

T he charge of the cour

t to the jury tha

t " . . . you m

ay presume

th es e expenses were reasonable and necessary," is not supported by evidence.
No reason is appare

nt as to why

the General Asse

mbly chose t

o limit ch. 235 of the Acts

of 1989 to "reasonable

ness" and not to expand it to includ e "neces sity" but t he sta tute i s not amb iguou s and must be held to mean what it says.
The judgment

of the trial court is reversed and the cause is remanded for a new trial on

all issues.

Costs of this cause are assessed against the appellee.

_________________

_________

__ _ WILLIAM B. CAIN, JUDGE

CONCUR:-14-

__________________________________ HENRY F. TODD, PRESIDING JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE