# FILED

October 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk RUSTY JOLENE BEAL, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9801-CV-00024 v. ) ) Davidson Circuit JOHN DOE [a

nd ) No. 94C-4165 Tennessee Farm

ers Mutual ) Insurance Company], ) ) Defendants/Appel

lants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE

GEORGE M. ALLEN Wischhof & Allen 110 Glancy Str

eet, Suite 207 Goodlettsville, T

ennessee 37072 ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS H. PEEBLES G. BRIAN JACKSON Trabue, Sturdiva

nt & DeWitt 511 Union Street 25th Floor, Nashville City Center Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLANTS

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This is an appeal by T

ennessee Farm

ers Mutual Insuranc

e Company and an unknown motori st alleged to be uninsur ed pursuant

to the provisions of Tennessee Code Annotated section 56-7-1201(e).
RustyJolene Beal filed s uit against James M. Sloan a s dr iver, and William Sloan as owner of a

vehicle which struck plainti

ff vehicle in the

rear on White Brid ge Road, Nashville, Tennessee January 2, 1994. The allegat

ions asserted proximate ne

gligence , family

purpose doctrine and injuries to the plaintiff.

Beal was insured by Tennessee Farmer s M utual Insurance Com

pany under a policy providing $50,000 per person liability limits and $100,000 per
ac cident limits. The same limits wer e applicable to uninsured or underinsure d motorists.

Process w as served on Tennessee Farmers Mutual under Tennessee Code Annotated section 56-7 -1206, and on February 8, 1995, Tennessee Farmers answeredadmitting the policy of insurance and the limits therein and claimed subrogation

of $9,317.01 under the provisions of its medical pay clause. In this
answ er Tenne ssee Farmer s demanded a j ury of twelve t o try the cause a

nd provided further: Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers") files this answer pursuant toT.C.A. § 56-7 -1201, etseq ., and specifica

lly reserves th

e right to defend in its own name or in the name of the al lege d uninsured/underinsured motorist, purs uant to T.C.A. § 56-7

- 1206.

In the original com

plaint Beal charge

d that t he negligence of James Sloan ". . . constituted the sole and proximate cau se of the accident . . ."

On April 6, 1995, def

endants Sloan filed a

n ans wer t o the original complaint

admitting that th

e negligence of

James M. Sloan was a pr oximate-3-

causeof the automobile accident but

denyin g that such negligence was a proximate

cause of the injuries alleged by the plaintiff. In this answer defen

dants Sloan demanded a jury of twelve to try the ac tion just as Beal had demanded such a jury in t

he original comp

laint.

On May 23, 1996, defendants Sloan filed an amended answ er asserting thatan unknown driver

of a vehicle had abr

uptly stopped ahea

d of plaintiff, thus forcing plaintiff to abruptl y stop and at least partially causing defendant Sloan to strike plaintiff' s vehicle in the rear. Thus, de fendant Sloan sought th

rough comparative

fault to allocate part of t

he responsibility

to the unknown driver of the unknown vehicle. S loan reiterated hi s demand for a t welve person jur

y to try the cause.

On May 24, 1996, Tennesse e Farmers Mu

tual amended it

s answer by adding the following: 15. Alternatively, this accident was proximately caused by the negligence of an unkno wn driver , who caused the plaintiff to stop abruptly

and unexpectedly. The negligence of the unknown driver w

as t he sole proximat

e cause of any injuries to the plaintiff. Alternatively, the negligence of the defendant Sloan, if any, should be compared with that of the unknown driver and/or the pl aintif f, acc ording to the principles of com

parative fault.

On July5, 1996, plaintiff filed her first amended complaint m

aking the unknown driver a "John Doe" defendant and seeki ng judgment aga

inst both the Sloan defendants and the unknown driver, John Doe.

On June 23, 1997, Tennessee Farmer s Mutual filed an answ

er to the amended complaint acknowledging its defense of John Doe and again

demanding a twelve person jury to try the cause.

Tennessee Farmers ma de a tactical deci sion not to participate in the trial of the case, act

ing pursuant to Tennes see Code Annota ted sec tion 56-7- 1206(a)(1994). See generallyMcCall v. Maryland Casualty Co. , 516 S.W.2d 353 (Tenn. 1974).-4- When the case came

on for trial on the

jury docket on J

une 25, 1997, only counsel for the plaintiff Beal and counsel for the defendants Sloan appeared for trial.

Counsel for these parties in th e volunt ary absence of counsel for Tennessee Farmers wa

ived their respect

ive demands for

trial by jury and proceeded with a bench trial. At the close of the plaintiff's proof, the defendants Sloan settled with

plaintiffs and the be

nch trial continued be

tween plaintiff a

nd the unknown motorist.

Counsel for Tenne ssee Farmer s appeared before the completion

of the p roof an d demand ed that a jury be impa neled in accordance with Tennessee F

armer's dem

and for a jury in

its pleadings. Such demand was denied by the tri

al court and the case taken under advise ment as a bench

trial.

On July 24, 1997, the trial court rendered its judgment in part as follows: Be f

ore the conclusion of the Plaintiff's proof, G. Brian Jackson, prim ary counsel for John Doe and TFMIC, a

ppeared at Court

. Immediately

following completion of thePlaintiff's proof, said counsel object edin open court to tri al of the case non

-jury and r

eiterate d hi s clients' demandthat a jury be empaneled to hear the case. Counsel for the Plaintiff objecte

d to the right of c

ounsel f or TFMIC, who was not present at the beginningof the trial, to later appearand contest the nonjury proceeding. Counsel for John Doe and TFMIC stated to the Court that those parties were not withdrawing and hadnever withdrawn

their dem and for a tr ial by ju ry. After hearing the stat ements of counsel for the Plaintiff and counsel for John Doe andTFMIC, the Court overruled the objection to the non-jury proceeding

and announced that thecause would be taken under advisemen

t and decided by

the Court. Having considered the proof, giving due weight to the demeanor andcredibility of

the parties and thewitnesses, and the entire record i

n the cause, t he Court fi nds the fol lowing: 1. The testimony of Defendant James M. Sloan, who was n ot t hen and there an occupant of Plaintiff's insured automobile, is cl ea r and convincing evidence of the contributory fault of a John Doe driver in the case at bar. 2. Rusty Jolene Beal reported the autom o bile accident at bar to the appropriate law enfor cement agency, to-wit the Metropolitan Police Department, and was not negligent in failing to determine the identity of the John Doe driver. 3. Total compensatory damages awarded to th e Plaintiff for pe rs onal injuries proximately resulting from the automobile accident at bar are $44,750.00.-5- 4. The comparative fault of all parties alleg ed to h ave contri buted to causing the automobile accident at bar i s apportioned as fo

llows: James M. Sloan 50% John Doe 50%

Tennessee Farmers fil

ed post-trial m

otions protesting the non-jury trial
on a basis best articul

ate d b y the affidavit of attorney G. Brian Jackson, which accompanied

the July 30, 1997 motion for a new trial. This affidavit provided in part: 2. The complaint in this case, w hich was f iled on or around December

20, 1994, contained a jury demand. On or around, February 8, 1995, I filed an answer

on behalf of Tennessee Farmers. The answer containeda jury demand. T he n amed defendants, James Sloan and William Sloan an swered on or around April 6, 1995. Their answer containeda jury demand. The case proceeded throug h discov ery

for more than a yea

r and a half. I

participated ac

tiv ely i n th e di sco very, att end ing a ll d epo sit ion s an d pa rti cip ati ng in wri tte n di sco very. 3. The plaintiff filed an amended complaint on J u ly 29, 1996. TennesseeFarmers answered the amended complaint on June 23, 1997. This answer also contained a jury demand. 4. On or around November

25, 1996, the plaint

iff moved to

set the case for trial. The motion moved to set the case "on the jur ytrial docket...." 5. A n ag reed order was submitted to the court on around December

4, 1996, setting th

e case "for trial to a jury on

June 25, 1997 at 9:00 a.m...."
6. Some settlement negotiations took place inthe spring of 1996. Although I

made an offer on behalf of my client, the

parties were un

able to agree to resolve the case.
7. After careful consideration, I

made a tactical decis

ion not to participate

actively in the trial of the case. I knew the n amed defendants'

attorney to

be capable

and was confident he would keep the plaintiff 's damages low enough to avoid any un derin sured motorist coverage exposure. Because Tennessee Farmers had a subrogation

lien fo r medical payments, any underinsure d exposure would require a verdict of at least $35,000. I

believed a jury

would be unlikely

to award more than that amount. I a lso believed that th

e jury would

be unlikely to assess any substantial percentage of fault to "John Doe" if " John Doe" w as not represented at trial. For these and other tactical reasons, I determinednot to participate actively in the jury trial. I n underinsured motorist cases, it is relatively common for c ou nsel to decide not t o participate ac

tively in tria

ls. 8. On or around April 30, 19

97, I sent a le

tter tothe counsel for the named defendants informing him that I did not intend to participate actively in the jury tr

ial. I spoke

with counsel for th

e named defenda

nts on June 18, 1997, aga

in telling him that I

would not be participating in-6- the trial and di scussing hi s strategy for defending the case a t the jury trial.

9. On June 19, 1997, I s poke to counsel f

or the p laintiff and informedhim that I would not be participating a

ctively in the

jury trial. 10. On or around June 23, 19 97, I receiv

ed pro posed jury instructions from t

he named defend

ants. 11. On June 24, 1997, Ireceived a telephone call from the Court concerning scheduling of the jury trial. I informed the Court

that I would not be actively participating in the trial, althou

gh I did expec

t to monitor portions of i

t. 12. When I lef

t the office on the

afternoon of June 2

4, 1997, it was my understanding that this case would be tried to ajury beginning on June 25, 1997. At that time, the case had been designated as a jury case for two and a half years. I had informed all parties and the Court t hat I did not intend to participate in the trial of the case. At no p oin t had any par

ty notified me

of any inten

t to seek a nonjury

trial, nor had any party or the Court suggested tha t my attenda

nce at the trial w

ould be necessary in orde

r to ensure that the case pro ceeded as a jur

y trial. Before [June] 25, 1997, the scheduled jury trial date, I neve rreceived any notice w

hatsoever of an

y request by

any party for a nonjury

trial. 13. I had not been notified of any substantive pretr

ial matters to be discussed before commencement of the jury trial. I expected that voir dire would begin at 9:00 a.m. on [June] 25. Since I did not believe my presence at voir dire to be necessary g iven the inactive role I was to play in the

trial, I planned to go by the Courthouse in the late morning of [June] 25 to check on the progress of the trial. 14. On the a.m. of [June] 25, 1997, I left my home s ome time between8:30 and 9:00 a.m. I had to run an err

and on the way

to th e office and I arrived at my office in downtown Nashville around 9:15 or 9:20 a.m. After I

arrived, Thomas

H. Peebles I

II told me that he received a call from the Court a fe w minutes earlier and had been informedthat the other

parties were attempting to waive the jury trial. Mr. Peebles told me that he had told the Court that a nonjury trial would not be ap pro pri ate beca use Ten nes see F arm ers had dem and ed a j ury. 15. I telephon ed the Co urt and spoke to one of the judge's court officers. She told me, "We tried to call you. The case is being tried." I asked the court

officer whethe

r the case was being heard by the Court or a jury. She in

dicated that a be

nch tr ial was in pro gress. I told her that Tennes see Farmers objected to such a proceeding, that a jury had been dem and ed, and tha t I wo uld be at the cou rth ous e im med iat ely. 16. I sp oke to Thomas H. Peebles III for a few minutes and left my office and went

to the Da vidson County Courthouse as quickly as possible. By the time I cleared sec urity and act

ually arri ved in the courtroom,it was, to the best of my recollection, approximately 10:00 a.m. or shortly

after 10:00 a.m. 17. When I arrived in the cou rtroom, plaintiff's counsel was concluding his exa

m ination of the plaintiff. Neither the named defendants

nor their couns el was pr esent in th e courtroom . Plainti ff's counsel briefly

examined another w

itness.-7- 18. Fo llowing the plaintiff's proof, I approached the bench and objectedto t he ca se b ein g hea rd as a no nju ry m atter. The Court ov erruled my objection and announced that the case would be taken under advisemen

t. The July 30, 1997 m

otion for a new tria

l by Tenne ssee Farm ers and John Doe was overruled by the trial court on January 2, 1998 and these parties appealed.
On appeal, Tennessee Farmers complains that having demanded trial by a jury of tw

elve in its pleadings,

trial by jury

cannot be waived w

ithout its consent. Appellant relies on Tennessee Rule of Civil Procedure 38.05 providing in part, "A dem

and for trial by

jury as here

in pr ovide d may not be withdrawn without the consent of

all parties as to

whom issues have been joined." Tenn. R. Civ. P. 38.05 (1997-98).
Appellant further relies on Tennessee Rule of Civil Procedure 39. 01 providing: When trial by jury has been demand

ed as provided in Rule 38, the action shall be designated upon the docket as a jury action. The tria

l of all issues so d

emanded shall be by j ury, unless (a) the parties or their attorneys of record , b y written stipulation filed wi th the court or

by oral stipulation made in open court and

entered in the record, consent to trial by the court sitting wit

hout a jury or (

b) the court u pon motion or of it s ow n initiative finds that a right of trial by j ury of some or all of those issues does not exist under th e Constitution or statutes of the state of Tennessee. Tenn. R. Civ. P. 39.01 (1997-98).

In this case, all par

ties had demande

d trial by jury . When "John Doe
was made a defendant by amended

complaint pursuant to T.C.A. § 56-7-1201(e) Tennessee Farmers filed an answer on behalf of 'John Doe' and demanded

a jury. After participating in disc

overy Tennesse

e Farmers m

ade a tactical dec

ision not to appear at trial and not to participate in the trial. This decision was predicated in part on T.C.A. § 56-7-1 206(a) providing in part: "Suc h companies shal

l thereafter have the right to file pleadings and take other action allowable by law in the name of the ow

ner and operator of

the uninsured mot

or vehicle or in its-8-

own name; . . ."

The basis of this decision i s best stated by counsel for Tennessee Farmers in his

affidavit: 7. After careful consider

ation, I made a tactical decision not to participate activ

ely in t he trial of the case.

I knew the named defendants' attorney to be capable and was confident he would keep the plaint

iff's damages low enou gh to a void anyunderinsured motorist coverage exposure. Bec ause Tennessee Farmers had a subrogation li e n for medical payments,

any underinsure

d exposure would requ

ire a verdic t of at least $35,000. I

believed a jury

would be unlikely

to awardmore than that a

mou nt. I also believed that the jury would be unli kely to assess any subst antial percentage

of f ault to "John Doe" if "John Doe" was not repr esented a t trial. For these and other tac tical reasons, I det ermined not to participate activ

ely in the jury

trial. In un derinsured motorist cases, it is rela

tively comm

on for counsel to decide not to participate a

ctively in trials.

The di lemma confronting counsel f or Tennessee Far

mers in this

case is obvious. Prior to Chapter 313 of the Public Acts of 1989, now codified as Tennessee Code Annotated secti on 56-7-1201(e), th ere wa s no un insured motorist coverage in the absence of physical vehicle contact. The ef

fect of the 1989 act is stated by

the Supreme C

ourt:

. . . Prior to the 1989 amendm

ent to Tenn.Code A

nn. § 56-7- 1201, t h ere could be no recovery unless there was actual physical contact between t he un insured motorist

's vehicle and the insured's vehi cle. See e.g., Hoy le v. Carr

o ll , 646 S.W.2d 161 (Tenn.1983). The requirement of physical contactwith the vehicle ope rated by the

unknow n motorist prohibited recovery in ca ses where the

un known motorist caused the accid ent but there was no physical contact between the vehicles. Subsection (e)(1)(B), enacted in 1989, allows recovery in ca

ses where, for e

xample, th

e insure d is forced off the road by an unknown motori st without physically s

triking the insured's vehicle. The high standard of p roof required by

the amendm

ent, clear and co

nvincing evidence produced by witnes ses o ther than the occupa nts, o bviously was intended by the legislature as a safeg uar d against bogus claims ar

ising from one-vehicle

accidents. Cf. id. at 162. Fruge v. Doe , 952 S.W.2d 408, 411 (Tenn. 1997).-9- Counsel for Te nness ee Farmers would be represent

ing an "empty chair" in front of they jury. Th e fear, real or imagined, is th

at the presence of counsel defending the em pty chair wil

l suggest to the jury the existence of liability insurance. It is a

lso correct to

say that counsel representi

ng Sloan would attempt to keep the damages of the plaintiff as low as possible.

The other horn of Tennessee Farmer s' dilemm a under thi s post 1989 "John Doe" case is that the interest of counsel for Sloan and Tennessee Farmers is far from ide

ntical. It is

Sloan who first asserted the existence of John Doe and undercomparative f

ault p rinci ples so ught a c ompanio n to sha re the mis ery. Plaintiff then a mended his co mp l aint to join "John Doe " with all parties f ully
aware that in order to prevail against John Doe, Tenn essee Code Annotated section 56-7-1201, subsequent to 1989, required: "(B) The existence of such unknown motorist is esta blished by clear

and convincing evidenc

e, otherthan any evidence provided b y occupants in the ins ured vehicle."

Th us, it is evident long befor e the actual trial , that it is in the inte res t of the plaintiff to prov

e the existence of

"John D oe" and , even mor e import antly, itis also very m

uch in the int

ere st of the defendant S loan to prove both the exist ence of "John Doe" and the highest possible com

parative fault of " John Doe".

Faced with

these circums

tances, counsel fo

r Tennessee Farm

ers made his tactical decision n

ot onlyto not participate in the trial of the case but also n ot to appear even as an observer. Thus, Tennessee Farmers deferred all trial decisions to counsel re

presenting the defe

ndants Sloan.

The right to trial by

jury is constit

utional and

jealously guar

ded by the courts of Tennessee. Shook & Fletcher S upply Co. v. Nashvill

e , 47 Tenn. App. 339, 338 S.W.2d 237 (1960).

Itis likewise well

settled in Tennessee that a party may

either directly
o r by implication waive this c onstitutional right to trial by jury. Russell v.-10-

Hackett , 190 Tenn. 381, 230 S.W.2d 191 (1950); Davis v. Ballard , 946 S.W.2d 816 (Tenn. Ct. App. 1996).

There is a marked divi sion of authority a mon g the f

ederal courts and amongsister jurisdicti

ons bound

by that which is

equivalent to Rules 38

and 39 of the Tennesse e Rules of Civil Pr ocedure. The discussion in Hall v. Morozewych , 686 P.2d 708 (Ala ska, 1984) is enlighte

ning. Our Civil Rules 38( d) an d 39(a) are fun ctionally ide

ntical to their federalcounterparts. Generally , if a defendant i

n federal court

defaults after having properly demanded a jury trial, he may insist on a jury trial as to damage i ssu es. Federal c ases split on whether a party's non appeara nce is t ant amo unt to a wai ver o f ju ry tr ial on l iab ili ty. Professors Wright and Miller take the position that "[f]ailure to appear, in person or by counsel, at the trial should be considered a waiver of jury trial". State case law demonstrates that the provisions of a

pplicable statutes or rules control resolution of the jury t rial waiver issue. State courts which have had occasion to apply statutes or ru les si milar to Alaska Civil Rules 38(d) and 39(a) (i.e.: where expres s consent is required for a wai ve r of a previously demanded jury

trial) genera

lly refuse to treat non-appe

arance as a wa

iver. Typic

al of su ch decisions is Loiselle v. Gladfelter, 160 So.2d 740 (Fla.App.), aff'd, 165 So.2d 767 (Fla.1964). I n tha t case, the Florida Court of Appeals recognized the "divergent

views of our sister states based upon their particular statutes or rules of procedure," and al so ackno wledged the split in federal aut hor ity. 160 So.2d at 742. Interp reting a rule of civil procedure that required "the consent of

the parties" before a demand for jury tri

al could be withdrawn, the co

urt concluded tha

t "waiver by

implication in these circumstances must be more than a mere failure to a

ppear and conte

st the issues of the case." Id. Given the provisions of Civil Rules 38(d) and 29(a), and our ruling in Hill v. Vetter, 525 P.2d 529 (Alaska 1974), we hold that the superior court erred in try

ing this case with

out a jur y. The judgment ag

ainst Hall is set aside and the matter remanded to the superior court for a jury trial on the issues of liability and damages. 686 P.2d 708, 711-712 f

ootnotes omitted.

Whatever m ay be the restrictions on im plied waiver in fe

deral courts and in other state jurisdictions, it is clear that Tennessee still follows Russell v. Hackett , 190 Ten n. 381, 230 S.W.2d 191 (195 0). Davis v. Ballard is a 1996 decision of the We stern Section of the Cour t of Appeals with a

pplication for permission

to appeal having been denied by the Supreme Court

on April 7, 1997. In this case, both Davis and Ballard had demanded a j ury in their plea

dings. Ballard failed to appear a t trial and Davis

w aived his right to tria

l by jury a

nd-11-

proceeded with a be

nch trial. Balla

rd appealed. Sai

d the Court of Appea

ls: [1] Ballard a

rgues that he ne

ver agreed or

consented to the c

ase proceeding to trial wit hou t a j ury, and that he did not w aive his right to have his case heard a

nd decid ed by a jury . Although the waiver of a jury demand requires the consent of all parties, t hat waiver may be either express or implied. Russell v. Hacke tt , 190 Tenn. 381, 230 S.W.2d 191, 192 (1950). In Russell , the Tennessee Supre me Court held that a co-defendant who did not appear at trial waived his

right to a jury trial b y implication. Id. The Supreme Court said, "Taylor (the codef endant) having been properly brought before the trial court by service of process, did not appear an d defend the suit. T

herefore, his consent to the waiving of the jur y was implied ." Id. In that case, the plaintiff originall y dem anded a jury but waived that demand after the co-defendant

failedto appear. The trial was conducted in his absence, andthe judgment for unliquidated d a mages awarded by the trial court sitting without a jury was upheld. Id. [2] The law in 1950 required that both parties cons ent before demandfor jury could be waive d. The Supreme Court held that the failure to appear is an implied consent to the waiver of jury trial. Id. Our present law requiringall parties to consent to waiver of a previous jury demand, Tenn.R.Civ.P. 38.05, is the same th at existed when the Supreme Court decided Russell . T herefore, we must follow the Supreme Court's ruling i

n Russell . In the instant case, Ballard did not appear at trial, "[ t]herefore , his conse nt to the wa iving o f the jury was implied." Id. [3] Ballard

also argues that there c an be no implied waiver because of the circumstances of this case. Ballard's cou nsel claims

that he extended Davis's

counsel commo

n court esy by

allowing him to continue the trial when it wa s first scheduled. When th

e case was called the second time, Davis proceeded without Ballard. Ballard assert s that Davis's counsel should have returned the favor. Davis's attorney argued that Ballard

had procrastinated

and delaye

d the trial, and tha

t he felt it wa s time to zealously represent his client. While we believe tha t professional courtesy sh

ould be the norm of o

ur profession, the

re is nothing legally

wrong with the a

ctions of Davis' s counsel. Acco rdi ngly, the judgment of the trial court is af firm ed, and the case is reman ded for such further pro ceedings as ar e nec ess ary. Costs of the appeal ar

e assessed aga

inst the appellant. Davis v. Ballard

, 946 S.W.2d 816, 817 (Tenn. App. 1996).

In this case Tennessee F arm ers made a ta ctical decision not on

ly to forego any

actual participat

ion in the trial but,

in effect, to abdi

cate all defense resp ons ibility

to counsel representing Sloan. In its brief counsel poses an hypothesis:

. . . For economic and strategic re asons, u ninsured motoris t carriers often elect not t

o part icipate directly

in trials. For example, consider the follow ing hypothe

tica l situation: a pl aintif f in an automobile accident case all eges $3,000 in-12- medicalexpen ses an d prays for $1 00,00 0 in d ama ges. Sh e carries $100 ,00 0 in uninsured/underinsu red motorist insurance. She sues the driver of the other vehicle involved in the accident and serves h er own uninsured motorist carrier withthe complaint. The named defendant driver has minimal $25,000 limits and is defended by able counsel. Under this scenario, the uninsured mot orist c a rrier theoretica

lly is exposed to a potential $75,000 in damages (the difference between the named defendant's lia bility limit s and the plaintiff's underinsured limits). However, the carrier may determine that it is highly unlikely

that the plaintiff w

ill recover more than $25,0

00 for a claim base d o n $3,000 in medicalexpenses. The carrier may further decide that adding anotherlawyer to the

defense team

will simply

increase the likelihoo d tha t the jury wil l divine the existence

of substantial insurance and increase the plaintiff's award accord ingly. Finally, the carrier would be required to

incur asignificant expense

if its counsel partic

ipated in the trial, expensethat might not be w orth the slight

ris k of loss and might actually be

harmful. Therefore, the UM carrier in such acase might appropria

tely decide to m

onitor the case but

to take no active role in the trial. This hypothetical sce

nario is extrem

elycommon. In

each UM case, the UM ca

rrier must det

ermine the lev

el of participation

appropriate for th

e particular case

and the risks involved. Often the carri er's counsel will

attend depositions and selected portions of

the trial but will not

sit at cou nsel table o r other wise tak en an ac tive ro le befo re the ju ry.

This hypothesis assum

es correctl

y th at the interest of counsel representing

the defendant drive

r on behalf of his ow

n liability carr

ier has the
same i nterests in the case a s the non-particip ating, underinsur ed carrier. Th e hypothetical is meaningless when applied to counsel for the defen dants Sl oan whoseinterest parallel s the uninsured mot orist carrier int

erest only to the extent thatboth would seek t o hol d the p laint iff's damage s to a mi nimum. Counsel for the unde rinsured Sloan has a vital inte rest in transferr

ing comparative

fault to "John Doe", an interest inimical to the int erest of Tennessee Farmers representing

John Doe. The

first and foremost duty of counsel for Sloan was to take care of the interest of Sl oan. This he did by wa iving his demand

for trial by jury and settling with the plaintiff. These actions left unchallenged th e testimony of defendant James M. Sloan t hat provi ded the basis for the trial court finding comparative

fault of John Doe. The court specifi cally found: "1. The tes

timony-13-

of defendant James M. Sloan, who w as not then and there a

n occupant o f plaintiff's insured automobi le, is clear and convinc ing evidence of the contributory fault of a John Doe driver in the case at bar."

The record d oes not disclo se any a greem ent among counsel not to withdraw their respecti ve jury demands.

The t acti cal decision not to participate in the trial by Tennessee Farmers and not to monitor the case when the trial bega

n effectively

left counsel for p laintiff and counsel

for defendants Sloa

n to their own devices and th e appearance of

counsel for Tennessee Farmers af ter the jury h

ad been waived by all counsel electing to pa rticipate in the tri

al comes too lat

e. The reaso

ning of Russell v. Hackett and Davis v. Ballard is persuasive under t

he facts of this case.

Tennessee Farmers also objects to the act ion of the trial c ourt i n assessing discretionary costs against Tenne ssee Farmer s. This is a matter in the sound discretion of the tr ial judge and this co

urt sees no a

buse of disc retion. Perdue v. Gree

n Branch Mining C

o. , 837 S.W.2d 56 (Tenn. 1992).

The judgment of the

trial court is in all

respects affirm

ed, and thecase is remanded for such further p roceedings as are neces sary. Costs are assessed to appellants.

_ ______ _______________________ _ WILLIA M B. CAIN, JUDGE

CONCUR:

_________________________________________ BEN H. CANTRELL, PRESIDI NG JUDGE, M.S.

_________________________________________ WILLIA M C. KOCH, JR., JUDGE-14-