FILED

February 28, 1997

Cecil W. Crowson

Appellate Court Clerk

DAVID NEAL THOMAS and )

BRENDA THOMAS, )

)

Plaintiffs/Appellees, ) Appeal No.

) 01-A-01-9608-CV-00380

v. )

) Davidson Chancery

MICHAEL S. CROCKETT and ) No. 94C-1861

WILLIAM T. CROCKETT, )

)

Defendants, )

)

and )

)

AUTO OWNERS INSURANCE COMPANY, )

)

Unnamed Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, CHANCELLOR

J. MITCHELL GRISSIM, JR.

THOMAS M. HORNE

Mitch Grissim & Associates

325 Union Street

Nashville, Tennessee 37201

ATTORNEYS FOR DAVID NEAL THOMAS

JAMES D. KAY, JR.

BRIDGETT A. WOHLPART

Suite 340M, Washington Square Two

222 Second Avenue North

Nashville, Tennessee 37201

ATTORNEYS FOR AUTO OWNERS

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
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OPINION

This is an appeal by unnamed defendant/appellant, Auto Owners Insurance

Company (“Auto Owners”), the uninsured/underinsured carrier of plaintiff/appellee,

David Neal Thomas, from the decision of the trial court which suggested an additur

of $12,500.00 to the judgment of $50,000.00 received by Mr. Thomas.

On 18 June 1993, plaintiffs, David and Brenda Thomas, were involved in

an automobile accident on Nolensville Road. The accident occurred when Michael

Crockett crossed the center line and collided head-on into plaintiffs’ car. As a result

of the accident, Mr. Thomas suffered a displaced fracture of the right humerus and

a nondisplaced fracture of the patella. Dr. James Renfro performed surgery on Mr.

Thomas’ shoulder and immobilized his knee. On 14 June 1994, plaintiffs filed a

claim against defendants, Michael and William Crockett. Plaintiffs also served

process on Auto Owners, their insurance company. The named defendants and Auto

Owners filed answers to the complaint.

Prior to trial, numerous actions occurred which limited the jury’s role to a

determination of Mr. Thomas’ damages. First, plaintiffs entered a voluntary dismissal

as to William Crockett. Later, Mrs. Thomas settled her case. Finally, Michael

Crockett, who had insurance limits of $25,000.00 per person per accident, admitted

liability. Thus, the only issue left for the jury was Mr. Thomas’ damages.

The evidence at trial showed that Mr. Thomas’ medical expenses were

$23,050.51 and that his lost wages amounted to $2,340.00. Dr. Renfro testified at

trial by videotaped deposition. During the deposition, Dr. Renfro testified that Mr.

Thomas suffered a two percent impairment to the person as a whole as a result of the

knee injury and a seven percent impairment to the person as a whole as a result of the

shoulder injury. After hearing the parties’ arguments as to the amount of damages,

the jury determined that Mr. Thomas was entitled to $50,000.00 in compensatory

damages. On 16 February 1996, the trial court entered an order confirming the jury’s

award.

On 23 February 1996, Mr. Thomas filed a “motion for new trial or in the
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alternative for an additur.” Mr. Thomas claimed that the jury’s verdict was “clearly

inadequate in light of the evidence.” Specifically, he argued that the jury’s award of

approximately $25,000.00 for past and future pain and suffering, loss of enjoyment

of life, permanent disability, and future loss of earning capacity was insufficient.

Michael Crockett filed a response to the motion which Auto Owners later adopted.

In addition, Michael Crockett’s insurer and Auto Owners each deposited $25,000.00

with the court clerk. On 25 March 1996, the court entered an order suggesting an

additur of $12,500.00. Auto Owners paid this amount 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 amend judgment.

The motion requested the court amend its decision awarding an additur and award

Auto Owners a judgment against Michael Crockett in the amount of $37,500.00. On

20 August 1996, the trial court entered an order awarding Auto Owners a judgment

against Michael Crockett in the amount of $25,000.00. The court reserved ruling on

whether to issue a judgment against Michael Crockett for the additional $12,500.00

pending a ruling from this court.

On 24 April 1996, Auto Owners filed a notice of appeal as to the order

entered 25 March 1996. The trial court entered three orders after Auto Owners filed

the notice of appeal. On 26 April 1996, the court awarded Mr. Thomas discretionary

costs of $1,171.77. On 28 May 1996, the court granted Auto Owners’ unopposed

motion to stay all proceedings to enforce the judgment pursuant to Rule 62 of the

Tennessee Rules of Civil Procedure. Finally, on 31 May 1996, the court approved

an agreed order allowing Mr. Thomas to withdraw $50,000.00 from the funds held

by the court.

Auto Owners’ only issue on appeal is “[w]hether the jury’s verdict of

$50,000.00 was both adequate and within the range of reasonableness and should be

restored where the appellee’s special damages were less than $25,000.00.”

We review questions pertaining to additur pursuant to Tennessee Rule of

Appellate Procedure 13(d), i.e., we review the trial court’s decision suggesting

additur de novo accompanied by a presumption of correctness unless the
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preponderance of the evidence is otherwise. Tenn. Code Ann. § 20-10-101(b)(2)

(1994); Thraillkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994).

In Foster v. Amcon International, Inc., 621 S.W.2d 142 (Tenn. 1981),

Justice Drowota, writing for the court stated:

In Magness, Justice Cooper recognized the difficulties the

trial and appellate courts were having in applying the guidelines

of Smith v. Shelton when he stated, "[t]his is one of several cases

where the application for permission to appeal has been granted

to consider the issue of damages only. In each instance, the

review has resulted from a misunderstanding by the trial court or

the Court of Appeals of the holding of this court in Smith v.

Shelton." In our opinion, part of these difficulties stem from the

inflexible application of the range of reasonableness test

(inflexible in that, if the verdict is within the range of

reasonableness, the trial judge may not alter it). In Shelton the

range of reasonableness test was formulated with the following

guideline in mind:

The amount of the verdict is primarily for the

jury to determine, and next to the jury the most

competent person to pass upon the matter is the judge

who presided at the trial and heard the evidence. 

569 S.W.2d at 427, citing Reeves v. Catignani, 157 Tenn. 173,

176, 7 S.W.2d 38, 39 (1928). In considering additurs and

remittiturs, other guidelines or factors must be given some, if less,

consideration.

In a leading and oft cited case on the constitutionality of the

additur statutes, the Supreme Court of Minnesota made the

following observations about the purpose of additur:

The practice of using additur is in the interest

of the sound administration of justice . . . This practice

avoids the necessity of a new trial with its

accompanying expense and delay. 

Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854, 859

(1957). See, also, Jehl v. Southern Pacific Co., 66 Cal.2d 821, 59

Cal.Rptr. 276, 427 P.2d 988, 995 (1967). It need hardly be added

that the concern for efficient judicial administration is even more

pressing now than when Genzel was decided in 1957.

Our additur statute gives the trial judge the authority to

suggest an additur when in his opinion the verdict is not adequate.

Shelton appears to have restricted the authority of the trial judge

to suggest an additur when the jury verdict is within the range of

reasonableness of the credible proof. However, such an

interpretation would contradict the clear language and intent of

the statute. The practice of using additur and remittitur is in the

interest of the sound administration of justice. The practice

avoids the necessity of a new trial with its accompanying

expenses and delay. Genzel v. Halvorson, supra, and Jehl v.
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Southern Pacific Co., supra.

We therefore modify Shelton to the extent that trial judges

may suggest adjustments when the jury verdict is within the range

of reasonableness, as an alternative to the practice of granting a

new trial, if they are of the opinion that the jury verdict is not

adequate. T.C.A.§ 20-10-101. See also, T.C.A. § 20-10-102. In

so holding, we do not intend to in any way alter our position that

in personal injury cases the amount of compensation is primarily

for the jury, and next to the jury, the most competent person to

pass on the matter is the trial judge. 

Id. at 146-47 (footnotes omitted). Here, the trial court concluded the verdict was

inadequate. We are of the opinion the evidence in this record fully supports the trial

court’s conclusion.

Mr. Thomas suffered an injury requiring surgery and hospitalization. He

missed work for some six weeks and could only perform light duty for some four

weeks. Doctors treated Mr. Thomas for a period of one year during which time he

underwent three shoulder manipulations and a number of physical therapy courses.

As we have stated, Mr. Thomas incurred medical expenses of more than $23,000.00

and lost wages of $2,340.00. He will have permanent impairment to both his left

knee and right shoulder and will have difficulty and limitations in reaching and lifting

overhead for the remainder of his life. We agree with the trial court that the jury’s

verdict of $50,000.00 was inadequate to compensate Mr. Thomas for his injuries.

The evidence does not preponderate against the trial court’s suggestion of an additur

of $12,500.00.

Therefore, it results that the judgment of the trial court is affirmed, and the

cause is remanded to the trial court for any further necessary proceedings. Costs on

appeal are taxed to unnamed defendant/appellant, Auto Owners Insurance Company.

____________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, JUDGE
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_____________________________________

WILLIAM C. KOCH, JR., JUDGE