FILED

July 31, 1998

Cecil W. Crowson

Appellate Court Clerk

ANGELA S. HOGAN, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9801-CV-00023

v. )

) Sumner Circuit

SONYA M. REESE, ) No. 15609-C

)

Defendant/Appellant. )

)

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 & Harsh

123 Public Square

Gallatin, Tennessee 37066

ATTORNEY FOR PLAINTIFF/APPELLEE

R. KREIS WHITE

Adair, Schuerman & White

4701 Trousdale Drive, Suite 211

Nashville, Tennessee 37220

ATTORNEY FOR DEFENDANT/APPELLANT
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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 the issue of liability. This appeal takes issue with two aspects

of the trial court's decision, to wit, damages and liability.

I. With regard to liability:

Plaintiff alleges in her complaint that her automobile was struck from

the rear by the automobile driven by defendant. She alleges specific acts of

negligence including statutory violations and seeks recovery for pain and

suffering together 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 action with respect thereto.

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

comparative fault.

On October 27, 1995 in the late afternoon plaintiff Angela S. Hogan

was alone in her automobile driving from Gallatin toward Hendersonville on

Highway 31A. Defendants Sonya M. Reese, accompanied by passenger Rocky

Branham, was proceeding in the same 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. Very little property damage

occurred and Mrs. Hogan did not seek medical attention until two days following

the accident.
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Only three witnesses, plaintiff Angela S. Hogan, defendant Sonya M.

Reese and passenger Rocky Branham, testified as to the facts of the accident. At

the conclusion of all of the evidence the trial court could find no basis for

comparative negligence and directed a verdict in favor of the plaintiff on the

issue of liability, thus sending the case to the jury on damages only. The jury

returned a verdict for the plaintiff as reflected by the final judgment as follows:

After deliberation, the jury returned and reported to

the Court that based on the proof submitted and by a

preponderance of the evidence that the Plaintiff, ANGELA

S. HOGAN, sustained total damages in the sum of

SEVENTEEN THOUSAND SEVEN HUNDRED FIFTY

($17,750.00) DOLLARS, as a result of the October 27, 1995

accident. Said total damages were composed of economic

damages in the amount of $4,395.16 and non-economic

damages of $13,354.84. Each juror did, upon being polled

by the Judge, acknowledge and confirm the verdict as

reported by foreperson Jerry Anderton, was in fact the

verdict agreed upon by each individual juror, and the jury as

a whole.

Therefore, based on the verdict rendered and the

findings made by the jury, it is therefore ORDERED,

ADJUDGED AND DECREED

1. Plaintiff, ANGELA S. HOGAN, have and recover

from the Defendant, SONYA M. REESE, the sum of

SEVENTEEN THOUSAND SEVEN HUNDRED FIFTY

($17,750.00) DOLLARS.

Defendant filed a timely motion for a new trial complaining of the

directed verdict on liability, the applicability of the statutory presumptions of

T.C.A. § 24-5-113(a)(3) and the alleged erroneous instruction by the court with

respect to medical expense presumptions.

This motion was overruled and defendant appealed.

Appellant states three issues on appeal to-wit:

1. Did the circuit court err in directing verdict in favor

of the plaintiff as to liability?

2. Did the circuit court err by permitting introduction

of medical expenses other than the charges of chiropractor

Ettlinger with a presumption of both reasonableness and

necessity?

3. Was the circuit court's instruction related to a
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medical expense presumption (TPI Civil 14.12) erroneous?

The action of the trial court in directing a verdict in favor of the

plaintiff as to liability presents a difficult issue on appeal under the necessary,

comparative fault analysis mandated by McIntyre v. Ballentine, 833 S.W.2d 52

(Tenn. 1992) and its progeny.

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 starting

point.

Said the court:

[4] The recitation of these standards of review does

not, however, provide a satisfactory answer to the issue

before us because McIntyre has radically changed the

question to be asked by the trial court on a motion for

directed verdict/JNOV which alleges negligence on the part

of the plaintiff. The question now is not whether the plaintiff

was guilty of any negligence that proximately caused the

resulting injuries. Instead, the question is: assuming that

both plaintiff and defendant have been found guilty of

negligent conduct that proximately caused the injuries, was

the fault attributable to plaintiff equal to or greater than the

fault attributable to the defendant.

The trial court's determination as to whether

reasonable minds could differ on this new question is made

more difficult by the fact that it has not been provided with

any guidance as to how to apportion fault. The formulation

of workable, meaningful standards to guide trial courts in

this area is no simple matter; this is evidenced by the marked

divergence of opinion of courts and commentators on

whether fault should be apportioned according to the nature

of the parties' conduct, the closeness of the causal

relationship between the conduct and the injuries, or

combination of the two. Some commentators have taken an

extreme position on this issue, arguing that no rational or

objective basis for the apportionment of fault exists.

We are unpersuaded by the contention that there is no

meaningful way to provide guidance to trial courts and juries

in apportioning fault, or by the alternative contention that it
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is unwise to provide any such guidance. While we agree that

it is impossible to formulate an exhaustive set of guidelines

for apportioning fault that will adequately cover the manifold

circumstances in which negligence actions may arise, we

nevertheless believe that trial courts and juries must have

some guidance, however imprecise and imperfect, in

discharging their respective duties in apportioning fault.

Eaton v. McLain, 891 S.W.2d 587, 590-91 (Tenn. 1994). Footnotes omitted.

This question addressed in Eaton involved the determination of the

McIntyre "fifty percent rule" in passing on a motion for a directed verdict 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 of fault of the plaintiff is at least

50% of the total fault, then a directed verdict for the defendant is mandated.

This issue was addressed by the Eastern Section 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

court had directed a verdict in favor of "dram shop" defendants and then

addressed the "fifty percent rule" as to the plaintiff passenger and defendant

driver. The trial court held that under the proof the passenger LaRue was at least

50% at fault and thereupon directed a verdict in favor of the defendant driver.

The Court of Appeals reversed, holding:

As in Silcox, there is ample evidence here suggesting

that LaRue's decision to get on the motorcycle was illadvised and negligent. However, viewing all of the evidence

in a light most favorable to plaintiffs, as we are required to

do, we cannot say that reasonable minds could reach only the

conclusion that LaRue was equally or more at fault than

Brewer. We agree that the conclusion reached by the trial

court that LaRue's fault was equal to or greater than Brewer's

is a reasonable conclusion. We cannot say, however, that

there is not another conclusion that could be reached by

reasonable minds.

Brewer was the operator of the motorcycle and

admittedly was traveling too fast at the time the accident

occurred. It is not unreasonable to conclude that the accident

was caused by excessive speed rather than or in addition to

Brewers state of intoxication. Brewer's blood alcohol

content was roughly twice that of LaRue's. In the final
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analysis, as the Silcox court noted, comparative fault is a

question of fact within the jury's province, which should not

lightly be invaded by the trial court. We do not mean to

imply in any fashion that the trial court's action gave light

consideration to the evidence or any other facet of the case.

We are of the opinion that, under all the circumstances of

this case, the question of the degree of fault between LaRue

and Brewer should have been submitted to the jury.

LaRue v. 1817 Lake Incorporated, 966 S.W.2d at 427.

In the case at bar the situation is reversed; here the trial court has

directed a verdict for the plaintiff rather than for the defendant. Under a

comparative fault analysis this means that the trial judge has determined as a

matter of law that the defendant is 100% at fault and plaintiff is zero percent at

fault. Thus the controlling question for our determination is whether or not,

accepting the evidence in the light most favorable to the non-movant defendant,

there is material evidence from which a trier of fact could find any percentage of

fault attributable to the plaintiff. If so, the comparison becomes a question of

fact for the jury and not a question of law for the court.

As in LaRue there is ample and indeed overwhelming evidence of the

fault of the defendant Reese. A verdict for the plaintiff, however, cannot be

directed so as to cast 100% of the fault upon the defendant if reasonable minds

can differ as to whether 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 towards

Hendersonville from Gallatin. The light had changed. I was

going down and I saw this other 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 have to take the

shoulder of the road from hitting me.

Rocky Branham, the passenger in the Reese car, testified:

Q. Tell these folks what happened.

A. Sonya was going down the road. Ms. Hogan

over here put on her brakes and we bumped

into her.

. . .

Q. Do you remember seeing Sonya's car (sic) anytime
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prior to right before you ran into it?

A. All the time.

Q. Do you remember what any of the other cars looked

like around the scene or the accident scene?

A. I looked at the cars if that's what you'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 you remember any of the other vehicles or

anything?

A. No, sir.

Q. And did you say the light turn red?

A. It turned red after she stopped.

Q. The light turned red after she stopped?

A. She stopped and then the light turned.

Q. You're saying Ms. Hogan stopped first and then the

light turned red?

A. Yes, sir, as far as I can remember.

Q. Do you think you could be wrong on that?

A. I believe that's correct.

Q. You believe or are you absolutely sure?

A. No, I'm not absolutely sure.

. . .

Q. Well, if you're not absolutely certain, 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 testimony Ms. Hogan testified that she had

stopped about fifty feet behind the car in front of her. 

In analyzing a similar situation under pre-McIntyre law Judge McAims

for the Court of Appeals observed:

[1,2] It is apparent that the evidence is in conflict on

points material to a finding of negligence in the operation of

the bus. Caldwell says the bus did not come to a sudden stop

and that there was no need to bring it to a sudden stop

because the vehicle immediately in front of him was 150 feet

away. The proof for plaintiffs, on the contrary, is clearly

sufficient to support a jury finding that the bus did come to
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a sudden stop without warning. Considering the entire

evidence in the light most favorable to the plaintiffs as we

are required to do, we thus have a state of facts from which

the 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 insists, he brought it to an abrupt

stop knowing that he was being followed by other traffic. 

Sellers, et al. v. American Industrial Transit, Inc., 35 Tenn. App. 46, 49-50, 242

S.W.2d 335, 336 (1951).

In Sellers as in Anderson v. Carter, 22 Tenn. App. 118, S.W.2d 892

(1937) reasonable minds could differ as to whether or not plaintiff was guilty of

some degree of proximate negligence. If such precluded a directed verdict preMcIntyre it is today sufficient to force a comparison which is always a question

of fact and not a question of law.

"Although circumstances could arise under which a directed verdict

would be appropriate in a comparative negligence 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 proximate cause

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

the Trial Judge only where the evidence and reasonable

inferences therefrom are so free of conflict that all reasonable

minds would agree with the decision of the trial 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 most favorable to the

defendant there is sufficient evidence for reasonable minds to find some

percentage of fault attributable to the plaintiff. Thus, a directed verdict for the

plaintiff assessing 100% fault to the defendant as a matter of law is error and

must be reversed.

II. With regard to Damages:
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Appellant next contends that T.C.A. § 24-5-113(a) is not applicable in

this case so as to provide prima facie evidence of the necessity and

reasonableness of certain medical expenses offered in evidence by plaintiff.

Appellant's complaint alleges in pertinent part:

(c) Necessary and reasonable medical expenses; copies

of which are attached hereto, per T.C.A. Section 24-5-113:

Sumner Regional Medical Center -------- $ 

990.00

Suburban Rehabilitation ------------------- 1,207.00

Sumner Radiology -------------------------- 177.00

Big B Drugs --------------------------------- 53.16

Dr. Kenneth Case --------------------------- 35.00

 $ 2,462.16 

Additionally, Plaintiff has incurred $1,683.00 for

treatment from Dr. Frank C. Etlinger;

(d) Pain and discomfort to her neck, back, and spine

area; and

(e) All other injuries and damages allowed by law.

Relative to the allegations of medical expenses, defendant answers:

7. Defendants deny 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 care. Defendants

are without sufficient knowledge or information to form a

belief as to the truth of the remaining allegations of

paragraph 7 and therefore demands strict proof.

Plaintiff filed a pre-trial motion in limine asserting in part:

Plaintiff would show that there is a rebuttable

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 is therefore entitled to said rebuttable

presumption.

An itemization of medical expenses incurred as of the

date of filing is contained in Plaintiff's Complaint.

Furthermore, on October 11, 1996, Plaintiff served upon

counsel for Defendant, her answers to Interrogatories to

which in relevant part giving a full and complete itemization

via copies of all medical bills and expenses incurred by

Plaintiff as a result of the collision which is the subject of

this cause.

To date, Defendant has not served upon the Plaintiff any

specific itemization of any bills produced in Plaintiff's

Interrogatories to which Defendant believes not to be

reasonable and necessary.
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In the alternative, Plaintiff would show that she is

entitled to prima facie presumption provided in T.C.A. § 24-

5-113(a)(1).

Defendant thereupon filed a pre-trial motion in limine asserting:

3. Under Porter v. Green, 745 S.W.2d 874 (Tenn.

App. 1987), the defendants seek a ruling in limine precluding

any reference to causation of the plaintiff's injuries absent

competent medical proof within a reasonable degree of

medical certainty.

4. The defendants, through counsel, moves the Court

for an Order striking or excluding any presumption of the

reasonableness or necessity of the plaintiff's medical

expenses absent competent proof of the necessity of such

care. In 

support thereof, the defendant calls the Court's attention 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 here, inapplicable) situations:

24-5-113. Medical, hospital or doctor bills -

Prima facie evidence of necessity and

reasonableness.

(a)(1) Proof in any civil action that medical,

hospital or doctor bills were paid or incurred

because of any illness, disease, or injury may be

itemized in the complaint or civil 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 exhibit shall be prima

facie evidence that the bills so paid or incurred

were necessary and reasonable.

. . .

(3) The prima facie presumption shall apply to the

medical, hospital and doctor bills itemized with

copies of bills attached to the complaint or civil

warrant; provided, that the total amount of such

bills does not exceed the sum of two thousand five

hundred dollars ($2,500).

In this case, the plaintiff seeks to circumvent the plain

meaning and pervert the purpose of the cited statute by

incurring bills in excess of the $2,500.00 cap and trying to

"hand-pick" bills in order to gain an improper presumptive

advantage where none is due. 
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At common law reasonableness and necessity of medical expenses

allegedly caused by the defendant are elements 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 claims, the legislature by chapter 734 of the

Public Acts of 1978 created a prima facie presumption of necessity and

reasonableness under certain conditions. 

This act of the General Assembly is presently codified as T.C.A. § 24-

5-113(a)(1)(2)and (3). The next change in the present codification as to the 1978

act was chapter 481 of the Public Acts of 1981 raising the original $500

maximum amount to the present maximum amount of $2,500. This portion of

the act, thus amended, provides as follows:

24-5-113. Medical, hospital or doctor bills -- prima

facie evidence of necessity and reasonableness. -- (a)(1)

Proof in any civil action that medical, hospital or doctor bills

were paid or incurred because of any illness, disease, or

injury may be itemized in the complaint or civil 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 exhibit shall be prima facie evidence that the bills so paid

or incurred were necessary and reasonable.

(2) This section shall apply only in personal injury

actions brought in any court by injured parties against the

persons responsible for causing such injuries.

(3) This prima facie presumption shall apply to the

medical, hospital and doctor bills itemized with copies of

bills attached to the complaint or civil warrant; provided, that

the total amount of such bills does not exceed the sum of two

thousand five hundred dollars ($2,500).

In order to qualify medical expenses under this statute it is necessary

that such expenses be itemized and copies of bills therefor which have been paid

or incurred be attached 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 procedure by which a plaintiff may establish a rebuttable

presumption that medical, hospital and doctor bills are reasonable. This 1989 act
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is now codified as T.C.A. 24-5-113(b)(1) and (2). 

This codification of the Act of 1989 is not limited as to the amount of

such medical bills but provides only a rebuttable presumption that such medical

bills are reasonable and does not address at all the question of whether or not

such medical bills were "necessary".

The codified 1989 act reads as follows:

(b)(1) In addition to the procedure described in

subsection (a), in any civil action for personal injury brought

by an injured party against the person or persons alleged to

be responsible for causing the injury, if an itemization of or

copies of the medical, hospital or doctor bills which were

paid or incurred because of such personal injury are served

upon the other parties at least ninety (90) days prior to the

date set for trial, there shall be a rebuttable presumption that

such medical, hospital or doctor bills are reasonable.

(2) Any party desiring to offer evidence at trial to rebut

the presumption shall serve upon the other parties, at least

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. [Acts 1978, ch. 734, § 1; T.C.A., § 24-

517; Acts 1981, ch. 481, § 1; 1989, ch. 235, § 1.]

In the case at bar plaintiff attached medical, hospital and doctor bills

in response to request for production of documents in a manner sufficient to

invoke the rebuttable presumption that such medical, hospital and doctor bills are

reasonable. 

"The fact a given amount is proven as undisputed medical expenses

does not prove those expenses were necessary." Karas v. Thorne, 531 S.W.2d

315, 317 (Tenn. App. 1975).

In the present case the court charged the jury as to medical expenses:

The next element of damages that Ms. Hogan may

recover is for reasonable and necessary expenses for medical

care, services, supplies actually given in the treatment of a

party as shown by the evidence. Now, in this case some

medical bills have been introduced in evidence, and because
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these bills do not exceed a certain sum established by the

law, you may presume these expenses were reasonable and

necessary.

As the proof in the case did not establish prima 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 with the requirements of T.C.A. 24-5-

113(a)(1) no evidence of necessity and reasonableness appears in the record.

Conceding that the response to production of document requests

complies with T.C.A. 24-5-113(b)(1) and (2) a rebuttable presumption of

reasonableness under T.C.A. 24-5-113(b)(1) is established but no prima facie

evidence of necessity exists.

The charge of the court to the jury that " . . . you may presume these

expenses were reasonable and necessary," is not supported by evidence.

No reason is apparent as to why the General Assembly chose to limit

ch. 235 of the Acts of 1989 to "reasonableness" and not to expand it to include

"necessity" but the statute is not ambiguous 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:
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__________________________________

HENRY F. TODD, PRESIDING JUDGE

__________________________________

WILLIAM C. KOCH, JR., JUDGE