# FILED September 4, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
ROLA ND HA

YES, ) ) Plaintiff/Appellant, ) Shelby Circuit No. 36853 T.D. & 72286 T.D. ) VS. ) A ppeal No. 02A 01-9610-CV-002 51 ) JOHN DOE an d SHELTER ) INSURANCE COMPANY, ) ) Defendants/Ap pellees. )
APPEAL FROM THE CI RCUI T COUR T OF SH ELBY C OUNTY

AT MEMPHIS, TEN NESSEE THE HONORABLE GEORGE H. BR OWN, JR., JUDGE

RITA L. STOTTS Memphis, Tennessee Attorney for Appellant
JAMES E. CONLEY, JR. THOMASON, HENDR IX, HA RVEY, JOHNSON & MITCHELL Attorney for Appellee, Shelte r Insurance C ompany

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J. In this automobil e accident cas e, Roland Hayes (“Plai ntiff”) filed suit against Joh n2

Doe (“Doe”) for damages sust ained when Pl aintiff was force d t o dr ive off the road i nto a tree in order to avoid a head-on co llision with Doe’s vehicle. Plaintiff filed a second suit against Shelter Insurance Company (“Defendant”) for Def endant’s alleged bad fa ith failure to pay Plai ntiff’s uninsured motorist claim under the insurance contract existin g between Plai ntiff and Defendant. The tri al court later consolidated Plaintiff’s negligence suit against Doe with Pl aintiff’s bad faith s uit against the Defendant. After t he parties st ipulated that the Defendant paid Pla inti ff $11,262.89 prior to trial and after the jury returned a verdict of $2,337 in favor of Plaintiff on Plaintiff’s negligence claim against Doe, the trial court held that Plaintiff should r

ecover nothi ng from the Defendant in accorda nce with the jury’s verdict. Plaintiff appeals thejudgment of the trial court argui ng that the trial court erred in consolidatingPlaintiff’s neg ligence ac tion a gainst Doe with Plai ntiff’s bad faith acti on against the D efend ant a nd i n re fusi ng t o gr ant P lai ntiff an addi tur or a new trial. F or the reasons stated hereafter, we affirm the judgment of the trial cour t.

FACTS

On Januar

y 4, 1 990 at a pprox imatel y 7:0 0 p.m. , Plaint iff was driv ing east on Simmons Road, a

two-laneroad. As Pl aintiff proceeded along the r oad, Plaintiff notic ed an unidentified car

traveli ng west on Simmons Road w hich had its l ights on high beam and was swerv ing. The unident ified car crossed thedoub le l ine in t he road a nd for ced P lai ntiff to swerve right i n ord er to avoi d a head-on coll ision. Plai ntiff swerved, struck a tree and was inju red.

Plai ntiff filed a negli gence action in circui t cou r t against Doe, the unknown driver, and Plaintiff filed a second action in chancery court against the Defendant, alleg ing the Defendant’s bad faith refusal to pay Plain tiff’s u nisured motor ist c laim. These cases were later consol idated and transfer red to circ uit court.

The parties sti pulated that theDefendant was Plai ntiff’s uninsured mot orist carr ier on January 4, 1990, t he dayof th e acc iden t, an d that theDefe ndan t pai d Pl aint iff3

$11,262.89 prior

to trial.

At trial , two eyewit ness es te stif ied t hat t hey sa w the u nkno wn drive r swerve in front of Plaintiff’s ve hicle, forcin g Plainti ff off the road and into a tree.

Dr. John Hows er, a neurosurgeon, first ex amined the Plainti ff on May 18, 1983after Plai ntiff had been invol ved in a car accident wherein Plaintiff was forced off the road and into a ditch. Suffering from bl ack-ou ts, dizz iness, headaches , neck and low back pain, Plai ntiff was

tre ated by Dr. Howser . Dr . Ho ws er o pine d that Pl aint iffwas possibly suffering from a ruptured di sk.

Dr. Howser

next saw

Plaintiff on May

21, 1986 after Plaintiff had been involved in another automobile acci dent in whi ch his head hit the winds hield and he was jerked ar ound in the car. Pl aintiff complained of neck pain, low back pain and headach es as a result of this accident. Dr. Howser diagnos ed Plaintiff as hav ing cerv ical lumbar strain and opi ned that Plaint iff possibly

had a central ruptured disk . Plaintiff vi sited Dr. H owser ag ain on September

14, 198 7 whe reupon Plainti ff was experi encing no pai n and was doi ng well

.
After the January 4, 1990 car accident, Plaint iff returned to Dr. Howser on January 9, 1990 compla ining of neck pain, back pain and headaches. Plaintif f again visited Dr. Howser on January 16, 1990, July 18, 1990, April 18, 1991, and on October 1, 19 91. As a result of Plain tiff’s Janu ary 4, 1990 a ccident, Dr . Howser opined that Plai ntiff was possibly suffering from a ru ptured disk.

After being mugged, str uck in the head, and knocked uncons cious on December 24, 1991, Pla inti ff again v isited Dr . Howser

. Dr. Howser saw Plaintiff in Febr uary, Mar ch and April 1992.

Althou gh Dr. Howser opined that Plaintiff was possibl y suffering from a rupt ured disk, none of Dr . Howser ’s tests con firmed the exi stence of a ruptured disk.4

According to Plaintiff’s test imony, Plai ntiff was treat ed in 1979 by D r. Horn for hea d and neck injuries after Pla in tiff was involved in an automobile acci dent. Plainti ff was in volved in other automobi le accidents in 1981, 1982, 1983, a nd in 1985 o r 1986. I n Plaintiff’s 1982 car accident, Plaintif f was a passenger in a car which landed in a ditch and hit a tree. Plaintiff filed sui t and collecte d a judgment for hi s injuries sustained in the 1983 car accident. As

a result of the 19 85 automobile acci dent, Plainti ff ex perienced severe neck pain, back

pain and headaches. In 1986, Plaint iff was attacked by the poli ce.

Plai ntiff pled gu ilty to leaving the scene of an acci dent which occurred on M ay 4, 1990. In October 1990, Plaintiff had another car accident on Sim mons Road wherein Plaintiff’s tire blew out. Plaintiff suff ered neck pain, back pain and headaches as a result of the October 1990 ac cident.

Other insurance pol icies Plai ntiff had in effect a t th e time of the January 4, 1990 accidentin addition t o the policy Plaintiff had in effect w ith the D efendant include: an insurance policy with Mut ual of Omaha issued on December 26, 1989, an insurance policy with Ass ociated Doctor ’s Health i ssued on November 30, 1989, an insurance pol icy w ith National Home Life issued on December 11, 1 989 and a disabilit y policy with M onumental General Insur

ance Group.
According to the testimony of Mari e Cornelius, an administrator of medical insurance employed by the Steam Fitters Local Union and Welfare Fund (“St eam Fitters”), Plaintiff’s insurance with Steam Fitters went into effect on January 1, 1990. Plaintiff filed a c laim wit h Steam Fitters after his January 4, 1990 accident. Plaintiff filed another claim after bei ng hit b y an unidentified objec t in July 1990. Another cl aim was fil ed by Plain tiff in October 1990 after Plaintiff was involv ed in a car ac cident. Plaintiff filed ad ditional claims in March 1991, May 1991, August 1991, and September 1991 for injuri es resultin g from fall ing off a horse. In Oc

tober 1991, Plai ntiff’s foot slipped out from under

him as he was changing a tire , and he filed another claim. Plai ntiff filed a claim i n December 1991 after bein g attacked and beaten. On November 16, 199 2, Plaintiff f iled a claim for a sprained neck.5

On November 19, 1992, Plainti ff filed a claim for contu sion of the face and sku ll.
According to the testimony of Dr. Richard Ennis, an orthopaedic surgeon, Dr. Ennis first saw Plaintiff during the mid-1980's f or a back inj ury resulting from an automobile accident. Dr . Ennis tre ated Plaintiff for a per iod of time follow ing this a ccident, and Plaintiff’s back finally

healed. Dr. En nis sa w P laintiff again on October 18, 1988 after Plai ntiff had been invol ved in an auto mobile accident on October 9, 1988whe rei n Pl aint iff was a front seat passenger in a car wh ich was forced to swe rve in or der to avoi d a head-on collision with anothe r car. The car in w hich Plainti ff was riding struck a tr ee. Complaining of headaches, neck p ain, shoulder pain and low er back pain, Plaintiff was diagnosed as having nec k and low back strain.

On January 29, 1990, Dr. Ennis treated Plaint iff for injurie s resulting from his January 4, 1990 car acci dent and diagnos ed Plaintiff as hav ing acute ce rvical strain and acute lumbar strain. Dr. Ennis saw Plai ntiff again on March 12, 1990 wh ereupon Pla inti ff still had some neck pain, but his back was much better. Dr. Ennis stated that the re was no evidence i ndicating t hat Plaintiff had suffered a s erious injury as a result of his January 4, 1990 car acci dent and no evi dence indi cating that P laintiff had a ruptur ed disk due to this accident

.
Dr. Enni s nex

t treate d Pl aint iffin July 1991 for injuri es resultin g from Plaintiff’s fall from a hor

se. Comp lai ning of in jur iesto hi s bac k and neck , Pl aint iff w as treated by Dr. Ennis from July through November 1991 for injuries resulting from his f all off a horse. Dr. Ennis opined that when he saw Plaintiff in July 1991, Plaintiff had f ullyrecovered from his car accident which occurred on January 4, 1990. Dr. Enni s opi ned t hat P lai ntiff suffered no permanent impair ment as a result of his January

4, 1990 automobile a ccident.

After examini ng Plai ntiff on April 20, 1 994, Dr. James Rodney Fei ld, a neurosurgeon, stated that Plai ntiff had no significant back problems, that Plaintiff had no disability resulting from his January 4, 1990 car accide nt and that Plain tiff needed no6

further treatment . Dr. Feild opined that Plaintiff sustained a sprained back as a result of the Ja nuary 4, 1990 car accident, that Plaint iff should have been off work for fort y-eigh t hours, and t hat P lai ntiff required no additional tr eatment after forty- eight hours of rest from wor k. It was als o Dr. Feil d’s opinion th at Plaintiff did not have a ruptur ed disk and that Plai ntiff fal s ified his cli nical exami nation and sy mptoms. Upon rev iewing a CAT scan of Plaintiff’s lumbar spine, Dr. Feild stated that the re was no evidence of diskherniation or abn orma lity. None of Plaintiff ’s test s reveale d any sig n of a rup ture d dis k or ne rve impingement w hich could cau se pain.

LAW
The three issues raised on ap peal are as follows: 1) Whether the trial court er red in consol idating Pl aintiff’s negli gence action with Plaintiff’s bad faith action; 2) Whether material evi dence exist s to support th e jury’ s verdic t; and 3) Whether

the t ria l co urt

erred i n re fusi ng t o gr

ant P lai ntiff an additur or a new trial.

Plai ntiff argues that the trial court erred in consolidati ng Plainti ff’s negligenc e action with Plaintiff’s bad fait h action. Plaintiff, how ever, has p roduced no evidence i ndicating t hat Plai ntiff obj ecte d to t he tr ial cour t’scons oli dati on of the t wo a cti ons. In a bsen ce of s uch evidence, Plaintiff has w aive d his rig ht to raise t his as an is sue on appeal. Ehrl ich v. Weber , 88 S.W. 188, 189 (Tenn. 1905); Harwel l v. Walton , 820 S.W.2d 116, 119-20 (Tenn. Ct. App. 1991); W right v. United Services Auto. Ass’n , 789 S.W.2d 911, 914 (Tenn. Ct. App. 1990); Deme nt v. Kitts , 777 S.W.2d 33, 35 (Tenn. Ct. App. 1989) ; Yarbr ough v. Stiles , 717 S.W.2d 886, 887-88 (Tenn. Ct. App. 1986); Pyle v . Morris on , 716 S.W.2d 930, 936 (Tenn. Ct. App. 1986); Baxter v . Vandenheoval , 686 S.W.2d 908, 911 (Tenn. Ct. App. 1984).

Review

of fin dings of fact by the tri al court in civil actions shall be de novo upon the record of the trial court, accompanied by a presu mption of the correctn ess of the fin ding,7

unless the preponderance of the evidence is otherw ise. T.R.A.P. 13(d). Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict. T.R.A.P. 13(d). In the instant case, Dr. Ennis testified t hat there w as no evidence ind ica tingthat Pla inti ff had suffered a serious injuryas a result of the January 4, 1990 car accident

and no evidenc e indicating that Pla inti ff had a ruptured di sk due to the accident. Dr. Enni s opined that Pl aintiff suffered no permanent impairment asa result of the January 4, 1990 automob ile accident and that Plaintif f had fully recovered from any and all injuries which he i ncurred due to t he accident when Dr. Ennis examined Plaintiff in July 1991. In addition, Dr. Feild testi fied that Plainti ff sustained a sprai ned back as a result of the January 4, 1990 car acci dent, that Plaint iff should have been off work for forty-eight hours after the accident , and thatPlaintiff requi red no additional treatment after forty-eight hour s of rest from wor k. Dr. Fe ild opined that Plaintiff incurr ed no disabili ty from th e January 4, 1990 car acc ident, that Plai ntiff had no signi ficant back probl ems, and that Plai ntiff needed no further treatment. Dr. F eild further opined thatPlaintiff did not ha ve a ruptured disk and that

Plain tiff fals ified h is cl inica l exa minati on and symp toms. Up on review ing a CAT scan of Plai ntiff’s lum bar spin e, Dr. Fei ld stated that t here was no evidence of disk herniat ion or abnormal ity. No ne of Plaint i ff’s tests revealed any si gn of a ru ptured disk or nerve impingement which could cause pa in. Based on the fore goin g test imon y, there is mater ial evid ence indicati ng thatPlaintiff did not s uffer a seriousinjury as a result of the J anuary 4, 1990 automobile acci dent, that Plaint iff di d no t incur a ruptured disk due to thi s accident, and that Plaintiff suffered no per manent physic al impairmentwhich was caused b y the accident. W e, therefore, af firm the jury’s verdict which awarded Plainti ff $2,337.

Because of our

disposition of the f oregoing issue, it is not necessary to address the final issue raised on appea l.

The judgment of the tr ial court i s hereby affirmed. Costs o n appeal are taxed to Appe llan t fo r which execu tion may is sue i f ne cess ary.8 HIGHERS, J.

CRAWFORD, P.J., W.S.

FARMER, J.