# FILED
April 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

JOE ERWIN and SUSAN ERW IN, ) as surviving parents and next of kin ) of BETHANY SUZANNE ERWIN, ) ) Plaintiffs/Appellants, ) Appeal No. ) 01-A-01-9706-CV-00248 VS. ) ) Maury Circuit JAMES M. ROSE, WADE MATHENY, ) No. 5932 in his capacity as Sheriff of Maury ) County, Tenn essee, MAUR Y COUNTY ) SHERIFF’S DEPARTMENT, MAURY ) COUNTY, TENNESSEE, and ) TRACY JOE LOVELL, ) ) Defendants/Appellees. )
APPEALED FROM THE CIRC UIT COURT OF MAURY CO UNTY AT COLUMBIA, TENNESSEE THE HONORABLE WILLIAM B. CAIN, JUDGE

PAUL A. BATES CHRISTOPHER V. SOCKWELL P. O. Box 357 Lawrenceburg, Tennessee 38464 Attorneys for Plaintiffs/Appell ants ALAN M. SOWELL 150 Second Avenue North, Suite 201 Nashville, Tennessee 37201- 1931 Attorney for Defendants/Appellees James M. Rose and Maury County, Tenness ee T. EDWARD LAWW ELL 610 North Garden Street P. O. Box 1017 Columbia, Tennessee 38402 Attorney for Appellee Tennessee F armers Mutual Insurance C ompany
AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

This case invol ves questio ns of the liability of a municipality and its agents under the Governmental Tort Liability Act. It also involves a question o f the l iabilit yof a plaintiff’s underinsured motori st carrier when the p laintiff has recovered from the tort-feasor more thanthe policy limits. We affirm the lower court’s order on the liability of the municipality and its agents and the order dismissin g the claim against the underinsured motorist c arrier . We reverse the order awarding prejudgment

interest because it rais es the recovery from the municipality over the allowable limit.

I.

On February 1 2, 1993, Maury Cou nty Deputy Sheriff Mike Rose observed a white Mustang pass another car in a no-passing zone on Campbellsville Pik e. D eputy Rose pursued the Musta ng in a sout herly direc tion on th e narrow, crooked, two-laneroad. The driver, later identified as Tracy Joe Lovell,did not heed Deputy Rose’s blue lights an d siren, but sped away . Deputy Rose followe d in hot pursuit.
Deputy

Rose was driving a 1987 Dodge with more than 100,000 miles
on it. The car frame had been welde d together by

a jail trustee and the car’s shocks and brakes were not in good condition. About three m iles fro m where the chase began Deputy Rose lost contr ol of the car coming out of a curve and crashed head-on into a car being driven by Be than y Suzanne Erwin, a student at Middle Tennessee State University. Ms. Erwin was pronounced dead shortly thereafter.

Ms. Erwin’s parents filed a wrongful death action against Mr. Lovell, Deputy Rose, the MauryCounty Sheriff,and Maur

y Count y. The p laintiffs also served- 3 -

a copy o f the complaint on their underins ured motorist carrier which had issued t o them a policy with $100,00 0 in cove rage fo r harm caused by an underins ured motorist. In an ame nded comp laint, the plai ntiffs added a claim against Mr. R ose, the sheriff,and Maur

y Count y fo r violati ng the decedent’s civi l rights under 42 U.S.C . § 1983.

Prior

to tria l, the l ower c

ourt gr anted su mmary j udgment to the sh eriff and partial summary judgment to the county, limiting the

county’s liabilit

y to $130,000
or the amount ofthe sheriff’s bond. The court’s action in dismissing the sheriff is not challenged on appeal.

The lower court bifurcated the trial, trying the case against Deputy Rose and the county first. The court apportioned fifty perc ent of the fault to Deputy Rose and fifty percent

to Tracy Joe Lovell. The court found the damages to be in excess of $1,000,000 but limited the county’s liability to $130,000 und er Tenn. Code Ann. § 29-20-403(2)(A). Pursuant to Tenn. Code Ann. § 29-20-310, thecourt dismissed the claim against Deputy Rose altogether.

The court then tried the case against Mr. Lovell to a jury. The jury returned a verdict for $1,000,000, finding Mr. Lovell eighty-four p erce nt at fault and Deputy Rose sixteen percent at fault.

The underinsured motorist car rier moved for

summary judgment on the Erwins’ claim under the policy.Finding that Mr. Lo vell had a $25,000 liability policy and that the county had paid the $130, 000 judgment against it, th e tr ial judge dismissed the claim against the underinsured carrier.

II.- 4 - The appellants argue that the ac ts of Deputy Rose were willful, thus renderin g him pe rsonally liable for th e decedent’s death and rendering the county liable for an amount in excess of $130,000. Thi s argument is based on an interpretation of the rather confusing language in Tenn . Code Ann. § 29-20-310(c):

No claim may be

brought against an employ ee or judgmententered against an employee for injury proximatelycaused by an act or omission of the employee within the scope of the employee’s employment for which the governmental entity is immune in a ny amount in exce ss of the amounts established for gov ernment a l entitiesin § 29- 20- 403 unless the act or omissi on was willful, malicious, crim inal or performed for personal financial gain, . . . .

We are of the opinion, however, that this sectionhas nothing to do with the county’s liabilit

y. It provides a l imited immunity for the county’s employees . The county’s immunity has been abolished i n other sections of the Act, see Tenn. Code Ann. § 29-20-202, 203, 204 and 205, but the county’s liabilit

yis limited by Tenn. Code Ann. § 29-20-311: No judgment or award rende red ag ainst a

governmental entity may exceed th e minimum amounts of insurance coverage f or death , bodily in jury and property damage liability specified in § 29-20-403, u n less such governme nta l entity has secured insurance coverage in excess of said minimum requirements, in which event the judgmentor

awa rd may not exceed the appli cable limits provided in the ins urance p olicy. The minimum limits of liability are now set by Tenn. Code Ann. § 29-20-403(B)(2)(A) at $130,000 for an injury to or death ofa single p erson. We find nothing in the Governmental Tort Liability Ac t that would increase that li ability unless the count y obtains liability i nsurance in a greater amount. Id.

With respect tothe employee, Tenn. Code Ann. § 29-20-310(c) should be read in conjunction with Tenn. Code Ann. § 29-20-310(b):

No claim may

be brought against an

employee or judgmententered against an employee for damages for which the immunity of

the governmental entity is removed bythis chapter unless t he c laim is one for medical malpractice brought against a health care practitioner.- 5 -

Reading the two sections together, it is obvious that the leg islature wished to limit the exposure of municipal employees w hile i t selectively r emoved the immunity of the municipality

itself. It did so in two ways: (1) by giving the employee absolute immunity in cases where the municipality’s immunity was removed (subsection (b)), and (2) by limiting the employee’s liability in cases in which the municipality was yet immune

to the limits in Tenn. Code Ann. § 29-20-403 -- unless the employee’s acts were willful, malicious, criminal, or performed for personal fina ncial gain (subsection (c)).

The county’s immunity for injuries caused by the

negligent operation

of
an automobile has been removed by Tenn. Code Ann. § 29-20-202. Thus, if we are correct in our interpretation of Tenn. C ode Ann. § 29-20-310(b), Deputy Rose has an absolute immunity for the acts that led to the county’s l iability. The trial judge acted
cor rectlyin dismissing Deputy Rose, whether his acti ons under the circumstances could be labeled willful or not.

III.

The appellants also assert that the tri al co urt erred in dismissin g the claims based on 42 U.S.C. § 1983. The federal act sta tes:

Every person who, under

color of any statute, ordinance, regul ation, custom or usage, of any State or Territory o r the Distr i ct of Columbia, subjects or c auses to be subjected, any citizen of the United States or other person with in the jurisdiction thereof to the deprivation of any rights, privileges or im munities secured by the Constitution and laws, shall be lia ble t o the party injured in an action of law, suit in equity, or othe r pr oper proceeding for redress.

As the trial judge noted, “ There is no convenient place this side of the Magna Carta to start this analysis.” Therefore, the only way to proceed is to p lunge in and note at the outset that the liability of the deputy rests on sig nificantly different factors than does the liability of the county. The county’s liability cannot be based on respondeatsuperior, Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 692 (1978), but the- 6 -

county may be liable, based on its own conduct, even if Deputy Rose did not commit
a constitutional violation in his individual capacity. Wi

lliams v. City and County of Denver , 99 F.3d 1009 (10th Cir. 1996).
a. Deputy Ro

se

In order to establi s h a claim against an indiv idual under § 1983, the plainti ff must show more than a mere act of negligence. Daniels v. Williams , 474 U.S. 327, 330 (1986). In Nishiyama v. Dic kson Co. , 814 F.2d 277 (6th Cir. 1987) , the Sixth Circuit Court of Appeals held that somethi ng on the order of gross negligence or outrageousconduct was necessary to give rise to an a ction under § 1983 (something showing a deliberate indifference to the public safe ty). Other circuits have also adopted something less than the “conscience-shocking” standard initially set by the United States Supreme Court in Rochin v. Californ ia , 342 U.S. 165 (1952). See Medina v. City and County of Denve r , 96 0 F.2d 1493 (10th Cir. 1992); Lewis v. Sacramento

County , 98 F.3d 434 (9 th Cir. 1996). The Supreme Court, however, reiterated its “conscience-shock ing” standard in Collins v. City of H arker Heights, 503 U.S. 115 (1992), and the Sixth Circuit h ad to concede that Nishiyama probably did not survive Harker Heights

. See Lewellen v. Metropolitan G overnment of Nashville , 34 F.3d 345 (6th Cir. 1994). What is required is a deliberate act, an act that is “arbitrary in the constitutional sense.” Id. at 351.

Even under its lesser N ishiyama standard the Sixth Cir cuit held that engaging in a high speed chase that results in a tragic death did not result in li ability under § 1983. See Jones v. Sherrill , 827 F.2d 1102 (6th Circ. 1987). The only difference between Jones v. Sherrill and this case is the fact that Deputy Rose’s car had some mechanical problems that we re known to him and that affected the c ar’ s safety. We are persuaded, however, that those fact s do not make th is a ca se in volvingan arbitrary, delib erate deprivatio n of constitut ional rights. The trial judge found that the acts of Deputy Rose w ere negligent but not int entional. We agree.- 7 - b. The County

As we have indicated, the county ’s liability in a § 1983 claim is not based
on respondeat superior. To be liable, the county itself must be found to have engaged in the same conduct that would g ive rise to liabil ity on the part of an i ndividu al. Temkin v. Frederick County Commissioners , 945 F.2d 716 (1991).

In this case, the appellants assert that the county’s failure to train Deputy Rose amounts to a deliberate indifference to the rights of the public. See Sanford v. Metropolitan

Go vernment

, No. 01A01-9606-CV-00251, (fil ed in Nashville, Jan. 24, 1997, perm. to appeal granted Oct

. 6, 1 997, settled while on appeal ). We do not agree. Even if Sanf ord’s “deli berat e indifference” standard is correct, the record shows that Depu ty R ose was trained at the Tennessee Law Enforcement Training Academy

and that he received the same amount of training as any other police officer in the state. He had been furnished a copy of the purs uit policy developed and used by the Metropolitan Gov ernment of Nashville.

To establish their inadeq uate traini ng claim, the appellantsoffered the testimony

of an expert who looked at Deputy Rose’s traini ng and classified it as broad and vague, leaving

too much to the discretion or judgmentof the individual officer. He testified that the “judgmental” policy adopted by Maury County was not a bad policy but required much more traini ng to teach an officer how to r eact to a pursuit situation.

While a finding of

negligence might be based on the expert’s testimo ny, we cannot accept his conclusi on that the Maury County training regimen amou nted to a deliberate indifference to the ri ghts ofthe public. Deputy Ros e was trained at the academy

that trains most of the officers in Tennessee. His training mig ht have fallen short of the ideal, but the county did not deliberately and know ingly put an untrained officer on the streets.- 8 - IV.

The appellants also argue that the trial judge erred in dismissing the claim against Tennessee Farmers Mutual Insurance Co. under its underinsured motorist coverage. While acknowledgi ng that the claim would be barred by the prior decisionsof our Supreme Court and this cou rt, the ap pellants cite an unpublished opinion of the Eastern Section of this cour t holding that

after McIntyre

v. Balentine , the payments received from other tort -feasors cannot be credited to the insurance company. See Cox v. Neway-Love Distributors, Inc. , No. 03 A01-9510-CV-00335 (filed in Knoxville, Jan.11, 1996, perm. to appeal granted June 3, 1996, settled while
on appeal ). The Eastern Section reasoned that since defendants are no longer jointly liable, a payment by one defendant does not appl y to the li ability of another. Therefore, apayment by one defendant’s insurance company woul d not benefit the insurance carrier hav

ing the uninsured-underin sured coverage.

While McIntyre v. B alentine did abolish joint liability, we do not think it changed the statutes that govern uninsured-underinsured motorist insurance or the privatecontract policy p rovisions that have been consistently constr ued to give the insurance company the credi t it seeks in this case.
Starting with Terry v. Aetna Casualty and Surety Co. , 510 S.W.2d 509 (Tenn. 1974), our Supreme Court inte rpreted the uninsured motoris t statutes as
r equiring only l imited c overag e up to th e statut ory required

minimum for fi nancia l responsibility. In Terry

the Court said: It resu lts, and we so hold, by enactment of T.C.A. § 56- 11 -1152 (now 56-7-1205) as a section of our uninsured motorist statute, it is the legi slative purpose to prov ide an i n sured motorist a right of recov ery under the uninsured motorist provision of his po licy o nl y to the statutory requirement

minimum (T.C.A. § 5 6-7-1148) and provisionsin such p olicies, approved by th e Commissioner

of Insurance, o pera ting to reduce such coverage where such coverage or benefits are available to the insured arising from accident causingthe loss, are- 9 - valid if such provisions do not operate to deny payments to the insur

ed of less than

the statutor

y minimum. 510 S.W.2d at 513.

Furthermore, an uninsured motor vehicle is defined in Tenn. Code Ann. § 56-7-1202(a) as:

For the purposes of this coverage, ‘uninsured motorist vehicle’ means a motor ve hicle whose owners hip, maintenanc e, or use has resulted in the bod ily injury, death or damage to property of an insured, and for which the sum of the limits of liability available to the insur

e d under all val id and collectible insurance policies, bonds, and securities applicable to the bodily injury, death, or damage to property is less than the applicable li m its of u ninsured motorist coverage pr ovided to the insur

e d under the policy agains t which the claim is made.
Tennessee Farmers’ policy specifically provides: Our limit o f l i ability for this Un insured Motorist Coverage shall be reduced by the

sum of the limits

payable under all liability and/or primary uninsured motorist insurance policies, bonds an d se curities applicable to the bodily injury or the death of the cov ered person.

. . . Damages payable under th is coverage to or for a covered person sh all be red uced by: 1. the amount paid under the Liability and Me d ical payments Co ve rages of this policy or any other automo bile insu rance po licy; 2. the amount pa i d or payable under any workers’ compens ation law, disabilit y benefit law, or simi lar law; 3. a payment made by or on behalf of the ow ner or operator of the uninsured motor vehicl e or by or on behalf of the person or entity w ho may be legally l iable.

. . . We shall not be obligated to m ake any payment under this Uninsured Motorist C overage u n til after the limits of liability under all bodily injury, liability bonds or insurance policies applicable at the time of the accident have been exhausted by payments of judgments or settlements.
Perhaps the str ongest statement of the effect of these statutory and policyprovisions can be found in Thompson v. Parker, 606 S.W.2d 538 (Tenn. App.- 10 -

198 0). In applying the Supreme Cour t’s decision in State Automobile Mutual Insurance Co. v. Cumm ings , 519 S. W.2d 773 (Tenn. 1975) the Court said: “We understand Cummings to m ean that the uninsured motorist insurance statutes of this state prov ide l ess than broad coverage si nce the legislature h a d permitted uninsured m otori st policies to be wr itten so as to ‘include such terms, exclusions, limitations, conditions, and offsets, which are designe d t o avo id duplication of insurance and other benefits.” (T.C.A. § 5 6- 7- 12 05 ). We further understand Cumm i

ngs to mean that the legal liability of more than one tort-feasor or the i nvolvement of multiple vehicle s in one tortious event or accident is immaterial as to the interpretation of ex clusions, permitted byT.C.A. § 56-7-1205, which allow an insuror by contract to reduce its l i ability by any s ums paid to its insured by other parties jointly

or severally l iable to the insured. “In addition we observe uninsured motorist insurance does not actually insur e the uninsured motorist. It insures the insured

and assures him to some recovery when the other parties do not hav e liability insur ance. Th e statute, T.CA. § 56-7-1205, permi ts the insuror, b y contract, to o ffset its liability to the insured by whatev er amount of moneyfrom whatever source the insured may receive it, if the money from the outside source would be a duplication of the amount agreed to be paid by the insuror.” 606 S.W.2d at 540.

We are persuaded that McIntyre v. Balentine did not affect the right of the insurance company to reduce its co verage by the benefits the insured r eceives from whatever source.

V.

The appellants also argue that liabil ity ag ainst the county cou ld have been imposed unde r Tenn. Code An n. § 8-8-301, et seq. In Tenn. Code Ann. § 8-8- 301, the sheriff is given an abs olute immunity

forthe acts of his deputies, “w hether the deputy is acting by vi rtue of office, under color of office or other wise.” Bu t the following section provides:

Anyone incurring

any wrong, injury, loss, damage or expense resulting

from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit- 11 - against t he county in which the sheriff serves; provi ded, that the deputy is, at the time of such occurrence, acting by virtue of or under c

olor of the office. Tenn. Code Ann. § 8-8-302.

In Jenkins v. Loudon Co unty , 73 6 S.W.2d 603 (Tenn. 1987) the Su preme Court had to parse out wh at part, if any, of Tenn. Code Ann. § 8-8-30 2 survivedthe adoption of the Governm ental Tort Liability Ac t in 1973 (GTLA) and its subsequent

amendments. The Court concludedthat in appropriate cases a county could still be sued under Tenn.Code Ann. § 8-8-302 for “the non-negligent conduct of deputies.” 736 S.W .2d at 609. The GTLA governed other cases.

We are as perplexed as the t rial judge was as to the precise meaning of non-negligent conduct.Perhaps we would al l agree that intentional conduct is nonnegligent, but the GTLA retains the county’ s immunity for many intentional torts,for instance, “malicious prosecution, intenti onal trespass, abuse of process, libel, slander, deceit, interference with contr act rights, inflictio n of mental anguish, invasion of rights
or privacy, or ci

vil rights.” Tenn. Code Ann. § 29-20-305(2). See also subsections (5) and (6).

If we ignore the immunitiesretained in the GTLA for certain intentional conduct, and say that the county may be sued therefor, we ar e still of the opinion that the conduct of Deputy Rose does not rise to that intentional level.

VI.

T he coun ty has raised the p oint that the tr ial judge erred in e ntering a judgment against the county in excess of the

$130,000 limit set in Tenn. Code Ann. § 29-20-404(a). The excess resulted from the accrual of post-judgment interest from the date the origin al ju dgment was entered, Apri l 17, 1996, until it was paid on May 28, 1996.- 12 - In Lu ci us v. City of Memphis , 925 S.W.2d 522 (Tenn. 1996), the SupremeCourt held that the post-judgment interest statute, Tenn. Code Ann. § 47-14- 121, applied to judgments again st governmental entiti es brought under the GTLA. In that case, however, the judgments were for $9,10 0 and $35,000 respectively, and the addition of interest did not increase the judgment over the limit set in Tenn. Code Ann. § 29-20-404(a).

The county argues that the legislature, when it said in Tenn. Code Ann. § 29-20-404(a) “a governmental entity or the insurer of such governmental entity shall not be held liable for an judgment in excess of the limits of liability set forth in § 29-20- 403, unless the governmental entity has expressly wai

ved such limits,” meant that the $130,00 0 limit was t he most t he count y would have to pay.

The appellants, on the other hand, ar gue that Lucius

controls or that the count yis not pay ing more than a $130,000 judgment;it is paying one ju dgment for $130,000 and another for the post-judg ment interest.

We are of the opinion that the Supreme

Court’s opinion in Lucius does not address this issue. It does hold that judgments agai nst governmental entiti es carry post-judgment interest, but it did not involv e a judgment that was alr eady at the maximum allow e d by law. We are also of the opinion that the appellants cannot escape the prohibition of § 29-20-404(a) by coll ecting a judgment for $130,000 and another for post-judgment interest based on that same judgment. I n that case, the county would be “held liable for a judgment in excess of the limits of liability set forth in § 29-20-403.” Therefore, we reverse the award of post-judgment interest in this
case.

VII.- 13 - The county also asserts that it should have been awarded discretionary costs under Rule 54.04(2), Tenn. R. Civ. Proc. That r ule allows the court to award certain costs other than those prepared by the clerk, Rule 54.04(1), “only in the court’s discretion.”

We cannot say that the court abused his dis cretion in this case. This issue is, therefore, wi

thout merit.

The judgmentof the court below awardi ng post-judgment interes t on the judgmentagainst the county is reversed. In all other resp ects it is affirmed and the
cause is rema nded to the Circuit Cour t of M aury County

for any further necessary proceedings. Tax the cos ts on appeal to the appellant.

____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM C. KOCH, JR., JUDGE