# FILED

February

28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk DAVID NEAL

THOMAS and ) BRENDA T

HOMAS, ) ) Plaintiff s/Appellees, ) Appeal No. ) 01-A-01-9608-CV-00380 v. ) ) Davidson

Circuit MICHAEL

S. CROCKETT and ) No. 94C-1861 WILL IAM T. CROCKETT, ) ) Defend ants, ) ) and ) ) AUTO OWNERS INSURANCE COMPANY, ) ) Unnamed Defend ant/Appe

llant. )

COURT OF APPEALS OF TENNESSEE
MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CI RCUIT COURT FOR DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE

THE HONORABLE WAL TER C. KURTZ, JUDGE

J. MITCH

ELL GRISSI M, JR. THOMAS M. HORNE Mitch Grissim & Associates 325 Union Street Nashville, Tennessee 37201

ATTORNEYS FOR DAVID N EAL THOMAS

JAMES D. KAY , JR. BRI DGETT A. WOHLPA

RT Suite 340M, Washington Square Two 222 Second Avenue

North Nashville, Tennessee 37201

ATTORNEY S FOR AUTO OWNERS

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE-2- 

## OPINION
This is an appeal by unnamed defendant/appellant, Auto Owners Insurance Compa ny (“Auto Owner s”), the uninsured/underinsured carrier of plaintiff/appellee, David Neal T homas , from

the decisi on of the tri al court which suggest ed an addit

ur of $12,500. 00 to the j udgmen t of $50,000 .00 received by Mr. Th omas.

On 18 June 19 93, plainti ffs, David and Brend a Thomas, wer e involved in
an automobile accident

on Nolensville Road. The accident occurred when Michael Crockett crossed th e center

line and collided he ad-on into pl aintiffs’ car. A s a result of the acci dent, Mr . Thoma s suffere d a displac ed fract ure of the right hum

erus and
anondisplaced fracture of the patella. Dr. Jam es Renfro performed surgery on Mr. Thom as’ shoulder a

nd imm obilized his knee. O n 14 June 1994, plaintiff s filed a claim against de fendants, Michael a nd Willia m Cr oc kett. P laintiffs also served process on Auto Owners, their insurance compa ny. T he nam ed defenda

nts and Auto Owners filed answ ers to the compl aint.

Prior to trial, numer

ous actions o ccurred

which lim

ited the j ury’ s role to a determ inationof Mr. Thomas’ damages. First, p laintiffs entered a voluntary dismissal
as to William Crock

ett. Later, Mrs. Thom

as settled her case. Finally, M ichael Crockett , who had insurance limit s of $25,000 .00 per pe rson per accident, admitted liability . Thus, the only

issue left for the j ury w as Mr. T

homas ’ damages.

The evidence a t trial showed that Mr. Thomas’ medical expenses were $23,050.51 and that his lost wag es am oun ted to $2,340.00. Dr. Renfro testified at trial by videotaped

deposition. During the

deposition, Dr. Renfro testified that Mr. Thomas suffered a two per cent im pairm ent to the pe

rson as a whole as a r

esult of the knee injury

and a seve n percent

impai rmen t to the per son as a wh ole as a r esult of the shoulder inju ry. After hearing the parties’ argum

ents as to th e amount of damages, the jury determ ined that Mr. Thom

as w as entitled to $50,000.00 in compensatory damages. On 16 Febr

uary 1 996, the

trial court entered an ord er con firming the ju ry’s award.

On 23 Februa

ry 1996 , Mr. T

homas filed a “

motion for new trial or i n the-3-

alternat ive for an additur.” Mr. Thomas claimed that the jury ’s verd

ict was “ clearly inadequate

in light of the evid ence.” Specifi cally , he argued tha t the jur y’s award of approximately

$25,000.00

for past a

nd future pa

in and suff

ering, loss of enj oym

ent of life, permanent disability , and future loss of earning capacity was insuff ic ient. Michael Crockett

filed a r esponse to th e moti on whi ch Au to Owner s later adopted. In addition, Michael C rockett’ s insurer a nd Auto Owners each depos ited $25,00 0.00 withthe court clerk. On 25 Ma rch 199 6, the court entered an order suggesting an additur of $12,500. 00. Auto O wners pa id this am

ount into court under

protest pursuant to Tennessee Code Annotated section 20-10-101(b)(1).

On 26 March 1996, Auto Owners filed a motion to alter

or am end judgm

ent. The motion req uested the court amend its decision awarding an additur and award Auto Owners a judgm

ent against Michael Crockett in the amount of $37 ,500.00. On 20 August 1996 , the trial court ente

red an ord er awa

rding Auto Owners a judgm ent against Michael C rockett

in the am ount of $25, 000.00. T

he court r eserved r uling on whether to issuea judgment against MichaelCrockett for the additional $12, 500.00 pending a ru ling from

this court.

On 24 April 1996, Auto Owners filed a no tice of appeal as to the order entered 25 March 1 996. The trial court entered three orders after Auto Owners filed the notice of appeal . On 26 A pril 1996, the court awarded Mr. Thom as discretionary
cos ts of $1,17 1.77. On 28 May 1996, the court granted Auto Owner s’ unopposed motion to stay all proceedings to enforce the judgm ent pursuant to Rule 62 of t h e Tennessee Rules of Civil Procedure. Finally, on 31 May 1996, the court approved
a n agreed order al lowing Mr. Thom as to withd raw $50, 000.00 fro m the funds held by the c ourt.

Auto Owners ’ only

issue on ap peal is “ [w]hether the j ury’ s verdict o f $50,000.00

was both a

dequate a nd within the

rangeof reason ableness a nd should be restored wh ere the appe llee’s specia l damages were less than $25 ,000.00.”

We review q ues tions perta ining to addit

ur pursuant

to Tennes see Rule o f Appellat e Procedur

e 13(d), i.e., we revi ew th e trial court’ s decision s uggesting additur de novo acc ompani ed by a presum ption of cor

rectness unless the-4-

preponderance of the evid ence is oth erwise. T enn. Code Ann. § 20- 10-101(b)( 2) (1994); Thraillki ll v. Patters on, 879 S.W.2d 836, 841 (Tenn. 1994).

In Foster v. Amcon Inter nati onal, Inc. , 621 S.W.2d 142 (Tenn. 1981), Justice D rowota, writing f or the cour

t stated: In Magness , Justice Cooper re cognized th e diffic ulties the trial andappellate

courts we

re having i n applying the guidelines of Smith v. Shelton when he st ated, "[ t]his is o ne of several cases where th e applica

tion for pe

rmiss ion to appeal has been granted to consider t

he issue of

damages only . In e ach instanc e, the review has res ul ted fro m amisund erstandingby the trial cour t or the Court of

Appeals o f the holdin g of this cou rt in Smith v. Shelton ." In our opinion, part of these difficulties stem from the inflexible applicati on of the ra nge of rea sonablenes s test (inflexib le in that, if t he verdic t is within the range of r easonabl eness, the trial

judge m ay not a lter it). In Shelton the range of reason ableness t est was f ormul ated with

the follow ing guideline in

mind: The amount of the ver

dict i s prim arily

for the jury to determ

ine, and n e x t to the ju ry the most competent

person to pa ss upon the m atter is t he judge who presid ed at the tri al and heard the eviden ce. 569 S.W.2d at 427, citing Reeves v. Catignani , 157 Tenn. 173, 176, 7 S.W. 2d 38, 39 (1928). In consideri ng additurs a nd remi ttiturs, other guidelines or factors must be given some, if less, considera tion. In a leading and oft cited case on the constitution ality of the additur statutes, the Supre me C ourt of Minneso t a made the following observations about the purpose of additur:

The prac tice of usi ng additur is in the int

erest of the sound administration of justice .

. . This practice avoids the ne c essity

of a newtrial wi th its accompanying exp ense and d elay. Genzel v. Halvorson , 248 Minn. 527, 80 N. W.2d 85 4, 859 (1957). See, also, Jeh l v. Southe rn Pacific Co ., 66 Ca l.2d 821, 5 9 Cal.Rptr. 276, 427 P.2d 988, 995 (1967). It need hardly be added that the conce

rn for ef ficient j udicial ad

minist ration is even more pressing now

than when Genzel

was deci ded in 1957. Our additur stat ute g ives the tr ial judge the author

ity to suggest an additur when in his opinion the verdict is not adequate. Shelton appears to have restricted the author ity of the trial judge to suggest an a

dditur when the jury verdict is within the

range of reasonabl eness of the credi ble proof . However, such an interpre tationwould contradict the c lear lang uage and int e nt of the statute . The practice of using additur

and rem ittitur is in the interest of the sound a dmi nistration of justice. The practice avoids the necessity of a n ew t rial wit h its accom

panying expenses and delay. Ge nzel v. Halv orson, supra, and Jehl v.-5-

Southern Pa cific Co. , supra. We therefore modi fy Shelton to the exte ntthat trial judges may suggest adj ustme nts when the jury verdict is within the

range of reasonabl eness, a s an alter native to th e practic e of grant ing a ne w trial, if they are of the opinion that the jury

verdict is no t adequate

. T.C.A.§ 20-10-10 1. See also , T.C.A. § 20-10-102. In so holding, w e do not inte nd to in any way alter our position that in personal injury

cases the amount of com

pensation is prim arily for the jury , and next

to the jur

y, the most competent perso n to pass on t he matter is the t rial judge. Id
. at 146-47 ( footnotes om itted). Here, the trial

court conc luded the ve

rdic t wa s inadequate. We are of the opinion the evidence in this record fully supports the trial court’ s conclusion

.

Mr. Thom as suffer

ed an inj ury r

equiring sur gery and hosp italizati on. He missed work for some si x weeks an d could only perform light duty

for som e four weeks. Doctors treated M r. Thom as for a p eriod of

o ne yea r during w hich tim

e he underwen tthree shouldermanipulations and a number of phys ical ther apy co urses. As we have stated, Mr. Thomas incurred medic al expense s of more than $23,00 0.00 and lost wage s of $2,340. 00 . He wi ll have permanent im pairment to both his left knee and right sh oulder and w ill havedifficult y and li mitat

ions in reachingand lifting
over head for th e remaind er of h is li fe. We agr ee with the tr ial co urt th at the jury’s verdictof $50,000. 00 was inadequate to compensate Mr. Thom as for his injuri es. The evidence

does not pre

ponderate against the trial court’ s suggestion o f an additu r of $12,500. 00.
Therefore, it results that the judgment of the trial courtis affir med, and the
cause is remanded

to the tria

l court for any f urther ne cessary

proceedi ngs. Costs on appeal are taxed to u nna med de fen dan t/a ppe lla nt, Auto Owne rs In sur anc e Co mpany.

____________________________________ SAMUEL L . LEWIS, JUDGE CONCUR:

_____________________________________ BEN H. CANTRELL , JUDGE-6-

_____________________________________ WILL IAM C. KOCH, JR., JUDGE