### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON NOVE MBER 28, 2001 Session ROBERT LEWIS DAVIDSON, I NDIVIDUALLY AN D AS 

### A DMINISTRATOR OF THE 

### E STATE OF 

### J OYCE 

### D AVIDSON 

### , D ECEASED 

### , ET AL 

### v. Charles R. Linds ey, ET AL 

### . Direct Appeal from the Circuit Court for He nry County No. 1365; The Honorable Julian P. Guinn, Judge

No. W2000-02891-COA-R3-CV - Filed May 6, 2002

This appeal arises from an automobile accident involving the Appellants and the Appellees in which the Appellee’s wife was killed and the Appellee wasseriously injured. The Appe

llee, ind ividually anda s administra tor of the estate of his wife, and the Appellee’s c hildren filed a complaint in the Circuit Court of Henry County

against the Appellants and three of the Appe llees. Following a jury trial, the jury found that the Appe llants were 100% liable for the accident and dismissed t

he claims agains tthe thre e Appellees. The ju ry awarded the Appe

llee $1,2 50,000.00

and awa rded the estate of the Appellee’s wife $500,000.00. The trial court entered a judgment on the jury ’s verdict. The Appellan ts filed a motion for

a new tri al. The tr

ial cour t denied t he motion f

or a new trial.
The Appellants appeal the jury verdict and denial of the motion for a new trial entered

by the Circuit Court of Henry County . For the reasons stated herein, we rever se andremand for a new trial in accordance with this opinion.

Tenn. R. App.P. 3; Appe al as of Rig ht; Judgme

nt of the C ircuit Court Reversed and Remanded
A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined.
Russell E. R

eviere , Michael L. Mansf ield, Jac kson, TN, for Appe

llants Edward L. Martindale, Jr., Jackson, TN, for Appe llee Davidson Raymond G. Prince, N ashville, TN, for A ppellee s Jason R. Ro ss and Ala n P. Ross Fred N. McLean, Paris, TN, for Appellee Charle s R. Lindsey1 M r. Cald eron wa s not a party to this law suit.
2 Ala n R oss is the fathe r of Jas on R oss an d w as sue d un der th e fam ily pu rpo se do ctrine

. -2- OPINION I. Facts and Procedural History
On July 27, 1998, the Appellee, Robert L ewis Davidson ( “Mr. Da

vid son”), and his wife, Joyce David son (“ Mrs. D avids on” or colle ctive ly “the Dav idso ns”), were tr aveli ng no rth on Highway 79 from Mc Kenzie, Tennessee to Paris , Tennessee in a truck driven by Mr. Davidson. The Appellan t, Allen Briggs (“Mr. B riggs”), was at his home in Paris waiting for a phone call from the Appellan t, Southland Transportation, directing him where to pick up his first load of the week. Mr. Briggs owned and operat e d a semi-t

r actor truck which was leased to Southland Transportation. Southland Transportation called Mr. Brigg s and directed him to pick up a load in Jackson.
Mr. Briggs traveled down H ighway 218, the by-pass ar

ound Paris, and stopped at a stop sign where Highway

218 intersects with Highway 79. At the stop sign, the Appellee, Charles Lindsey (“Mr. Lindsey”), was immediately in front of

Mr. Briggs. Both Mr. L

indsey and Mr. Briggs turned left onto Highwa y 79 travel ing so uth. After M r. Linds ey and Mr. B riggs turned on to Highway

79, the Appellee, Jason Ross (“Mr. Ross”), passed Mr. Brigg s. The three vehicles continued traveling south on Hi ghway

79 with Mr. Lindsey

in front of

Mr. Ross and Mr. Ross in front of Mr. Briggs.
There is a one-half mile portion of Highway 79 near the Routon community wher e the highway becomes two lanes for traffic trave ling south and one lane for traffic traveling north. As Mr. Lindsey , Mr. Ross, and Mr. Briggs approac hed the three-lane portion of Highwa y 79 , Mr. Ross proceeded

into the right lane of the two lanes for southbound traffic. Mr. Bri ggs moved into the area behind Mr. Lindsey

in the left lane that had been vacated by Mr. Ross. Mr. Lindsey

then proceeded into the right lane, and

Mr. Briggs moved towards the a rea in the left laneva ca te d b y Mr . Li nd se y. As Mr. Lindsey

proceeded into the right lane, he collided with Mr. Ross. Mr. Lindsey then pulled back into the left lane and collided with Mr. Briggs. Mr . Briggs skidded across the c enter line of Highway 79 and collided with a vehicle driven by Juan Calderon (“Mr. Calderon”). 1 After colliding withMr. Calderon, Mr. Briggs collided with the Da vidsons. Mrs. Davidson was killed instantly, and Mr. Davidson sustained serious injuries.
On June 7, 1999 , Mr. Davidson, indi v idually and as ad

ministrato

r of the e state of M

rs. Davi dson, and the Davidsons’ children, Dianne Cook, Sandra Davidson, Donald Davidson, Ga ry Dean Davidson, and Robert Dale Davidson, (collectively “the plaintiffs”) filed a complaint in the Circui t Court o f Henry

County agains t Mr. L

indsey , Mr. Ross, Alan Ross, 2 Mr. Briggs, and Southland Transportation (collectively “the defendants”). The compl aint alleg ed that the defendants were neglig ent in th e operation o f their vehicles which proximately c aused the accident. Mr.3 On September 26, 2001, the t rial court ent ered an amended judgm ent, di smissi ng with prejudi ce the c ause of acti on bro ugh t on b eha lf of the Da vid so ns’ children pursuant to the Tennessee Su preme C ourt decision of Jordan v. Bap tist Thr ee R ivers H osp ital, 984 S.W .2d 593 (T enn. 1999 ). -3- Davidson claimed t

hat he wa s entitled

to damag es for pa st a nd fu ture medical expenses, past and future pain a nd suf ferin g, imp airme nt of e arnin g capaci ty, lost wage s, past and future emotional injur ies, past and future loss of the enjoy ment of life, injuries, property damages, and l oss o f consorti um. As administrator of Mrs. Davidson’s estate, Mr. Davidson claimed that the e state

was entitled to damages for the pecunia ry value of Mrs. Davidson’s lif

e, medic al and fu

neral e xpenses, pain and suffering, prejudgment inter est, an d damag es under the wrongful death statute. The David sons’ children claimed that they were entitled to damages for loss of consortium. The plaintiffs requested

compensatory

damage s in the amo

unt of $1,6 25,000.00 . Each of the defe ndants filed answers to the complaint.
On February

9, 2000, the plaintiffs filed a motion to amend the ad damnum clause of the complaint to reque st compensatory da

mages in the amount of

$5,000,000.00. On February 11, 2000, Mr. Briggs and Southland Transportation filed a motion to dismiss the individu al cl aims of the Davidson s’ children, claiming that the decision of Jordan v. Baptist Thre e Rivers Hospital , 984 S.W.2d 593 (Ten

n. 1999), failed to

create a separ ate cau se of ac tion for a

child’s lo ss of cons ortium. The motion to dismiss furtherclaimed t hat Jordan did not app ly r etroac tively

to provide

for cla ims of spousal and parental consortium in this case. Mr. Brigg s and Southland Transportation also filed a motion in limine to request that the trial court exclude any evidence concerning

Mr. Briggs’s and Alan Ross’s post

-accid ent activ ities. On February

24, 2000, the plaintiffs filed a motion to amend the complaint to allege that Mr. Brigg s was negligent in violating section 55-10-103 of the Tennessee Code, the duty to give inf ormation and render aid.
On April 27, 2000, the trial court heard all four motions. The trial court granted the motions to amend the complaint. The trial court denied the motion in limine. The trial court orally denied the motion to dismiss with regard to the retroactivi ty of t he Jordan case. T he parti es agr

eed to dismissal of the children as party plaintiffs. On July 13, 2000, the plaintiffs filed a motion in limine to preclude reference

to the fact that cer

tain of Mr. Da

vidson’s m

edical e xpenses and Mrs. Davidson’s funeral expenses had been paid by insurance and/or Medicare. On July 24, 2000, the trial court granted the motion in limine.
On July 26 and 27, 2000, a jury trial wa s held. At the conclusion of the trial, the jury found that Mr. Briggs and Southland Transportation we re 100% liable for the accident and dismissed the claims agains t Mr. Lindsey , Mr. Ross, and Alan Ross. The jury aw arded Mr. Davidson $1,250,000.00 and awarded the estate of Mrs. Davidson $500,000.00. The t rial cou rt e ntered a judgment on the jury’s verdict

. 3 On September 13, 2000, Mr. Briggs a nd Southland Transportation filed a motion fo

r a new tr ial. On October 10, 2000, the trial court held the hearing on the motion for a new trial. The trial court denied the motion for a new trial. On November 1, 2000, Mr. Bri ggs andSouthland Transportation filed a motion to set the amount of bond required to stay execution

of4 On November 28, 2000, Mr. Bri ggs and Southland Transport ation f iled a motion in thi s Court see king review of the trial court’s denial of t he motion t o st ay execut ion of the j udgment pen ding app eal. O n D ecem ber 1 8, 20 00, th is Court granted the motion and allowed M r. Brig gs an d So uthla nd T ransp ortatio n fiftee n da ys in w hich to file a bo nd in the amount of one m illi on dollars to stay execution of the judgm ent pending ap peal. On January 12, 2001, Mr. Bri ggs and Sou thlan d T ransp ortatio n filed a on e m illion d ollar b ond with the trial co urt. -4- the ju dgment pend ing the appeal. On November 9, 2000, the trial cour t held a hearing on the motion. On November 15, 2000, the trial court denied the motion. 4 This appeal followed. II. Law and Analysis The following issues are presented for our review:
1. Whether the trial court

properl y di scharg ed its duty as thirteenth juror to indepe ndently weig

h the evidence present

ed at tria l and dete rmine whe

ther such evidenc e preponderate d in favor of or ag ainst the jury’s verdict in ruling upon Mr. Brigg s and Southland Transportation’s motion for a new trial; 2. Whether th

e trial c ourt err

ed by allowing counsel t o inquire of

Mr. Briggs on cross-examination whether he rendered assistance to the Davidsons immediately following the acc ident, or

whether his handwas injured in the accident, and allowingother witnesses to testify at trial with regard to such matters; 3. Whether the trial court erred by allowing witnesses to testify at trial with reg ard to fa cts concerning the activ

ities of Mr . Ross and t

he occu pants o f his vehi c le to free the Davidsons from their vehicle following the accident beyond those fa

cts necessary

to describe the accident scene and, to some exte

nt, the na ture of M r. David son’s inju

ries imme diately

following

the acc ident; 4. Whether th

e trial c ourt err

ed by allowing Trooper Sexton to tes tif

y conce r ning sta tements allegedly made to him followin g the ac cident; 5. Whether the jury’s a pportionment of 100% liability aga inst Mr. Briggs and Southland Transportation is clearly

erroneous and not supported by material evidence; 6. Whether the trial court erred by failing to instruct the jury that they should consider the ages of the Davidsons’ chi ldr en in determining whether the children wer e entitled to loss of consortium damages as a result of Mrs. Davidson’s dea th; and 7. Whether the amount of the jury’ s verdict is supported by mater ial evidence. We will examine each issue in turn.
Motion for a New Trial
The first issu e prese

nted for our revi ew is whe

ther the trial cou rt prope rly dischar ged its d uty as thirteenth juror

to independently weig

h the evidence presented at trial and determine whether such evidence preponderated in favor of or ag ainst the jury’s verdict in ruling upon Mr. Briggs and Southland Transportation’s motion for a new tri al. Wh ere the trial judge has approved the jury’s verdict on a motion for a new trial, our standard of review is whether there

is any material e

vidence to support the verdict. See T ENN
. R. A PP
. P. 13(d). This stand ard is not applica ble, howe ver, “un less the trial judg e proper

ly f ulfills hisduty as ‘thirteenth juror.’” Shivers v. Ramsey , 937 S.W.2d 945,-5-

947 (Tenn. Ct

. App. 1996). A motion for a new trialrequires the trial judge to perform the function of thirteenth juror. See Riding s v. Norf olk S. Ry. Co. , 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). As th e t hi rt ee nt h j ur or , “ th e t ri al ju dg e i s u nd er a d ut y to in de pe nd en tl y weig h the evidence and determine whether the evidence pr epon derates in favor of or aga inst the verdict.” Shivers , 937 S.W.2d at 947.
We must presume that the trial judge adequately performed his function as thirteenth juror when he simply approves a jur y verdict without comment when r uling on a motion for

a new tri al. See Sholodge Franchise Sy s., I nc. v. M cKibbon Bros., Inc. , 919 S.W.2d 36, 41 (Tenn. Ct. App. 1995). In the event that the trial judg e does state his reasons, an appellate court is to examine them only for the purpose of determining whether the trial court properly

reviewed the evidence and was satisfied or dissatisfied with the verdict. See Cumberland Tel. & Tele. Co. v. Smithwick , 79 S. W. 803, 805 (Te nn. 190 4). If

in discharging his duty

as thirteen

th juror, the trial

judge ma kes comme

nts which i n dicate th at he hasmisconce ived his du

ty o r clear ly h as not followed it, t

his court must reverse and remand the case for a new trial. See Holden v. Rannick, 682 S.W.2d 903, 905 (Tenn. 1984) ; James E. Str

ates Show s, Inc. v. Jakob ik , 554 S.W.2d 6 13 (Tenn . 1977); Mize , 468 S.W.2d at 733.

In the case at

bar, Mr. Briggs and Southland Tra nsportation argue that

the trial judge failed to properly discha

rge his duty

as thirteenth juror. Mr. Briggs and Southland T

ranspor tation cla im that the trial judge’s comments made during the trial a nd while ruling on the motion for a new trial andthe motion to set the amount of bond r equired to stay execution of the judgment pending the appeal showed that he did not independently w eigh the evidence in the ca se when a cting a s thirtee

nth juror. Rather, Mr. Briggs and Southland Tra nsportation assert

that the trial judg e was bia sed ag ainst their insurance carrier and

approve d th e jury ver

dict in order to send a message to the insurance carrier to settle the case.

At the close of the pr oof on the first day of trial, the trial

judge ma de the fo llowing c omments to the par ties’ att orney s:
Trial Judg e: Gentle

men, let me

ask y ou, didn’t

I ord er this ca se into mediation somewhere earlier?

Mr. Martindale: Yes, sir.
Trial Judg e: Who media

ted it?

Mr . M ar ti nd al e: Ju dg e M cG in le y.-6- Trial Judge: Judge McGinley was the mediator?

Mr. Martindale: Yes, sir.
Trial Judg e: The re ason I

pose that question t

o yo u is, y ou’re a

ll experienced attorney s. I mean, this is not y our first time down the path. And from time to time you see c ases, perhaps not that often, bu t you see ca ses that ought to be settled. A

nd this, quite obviously, is one of those cases. I obviously have enoug

h calluses to know that many times cases that should be se ttled, aren’t settled. And th ey are man y tim es n ot set tl ed f or t he w ron g re aso ns. I realize that there can be recalcitrant plaintiffs. And sometimes there’s stubborn defendants. And I suspect from time to time there might even be a case w here, perhaps, every

body didn’t understand their positions, their weaknesses and their strengths. I say that, and certainly

wouldn’t suggest that it’s the attorney s. But I think per haps you reall

y w ant to re evaluat

e y our positions, and maybe ta

ke a few minutes to talk to each other and make sure that everybody

has got their best offers up on top of the table here

. It would be very

interesting to see what the jury will do with the case. But, y ou know, I see a whole lot of inter esting cases and I suspect that you do, too. And justice say s that if it can be settled, then it ought to be settled. I’d like to make sure that everybody has done what they

ought to h ave done

here. A nd I’ m not suggesting for one moment that y ou haven’t. You know, sometimes there’ s slight in

flection of a wor d that is mis interpre

ted. And p eople think, well, they’ve stopped ther e, and I ain’t g oing to be the one to make the next over

ture. You need to make sure that you got a

ll your money

on the table. Particularly now that you’ve g ot all the fa ct s b efor e t he ju ry.-7-

At the October 10, 2000 hearing on the motion for a new trial , the trial judge stated the follo wing: [Y]ou were given a file that some insurance adjuster or appraiser either was unable or inexplicably refused to evaluate. I ’m aware of that.

* * *

The facts were s o bad that after th is case w as over, I sou ght out Judge McG

inley , who I

had had mediate thismatter, t o remonst rate with him as to why this case had not bee n settled. If there wa s ever a case begging

for settlement, this was it. Incidentally , Judge McGinley is very

good about settling these. He had no explanation, other than it was an adamant feeling on both beha lf of the plaintiff and the defendant. I

t was his feeling that had he been able to coe rce a reasonable offer, that the plaintiff would have been coerced to take

a r ea so na bl e o ff

er . J ud ge Mc Gi nl ey i s p re tt y go od at th is . A s I s ay, I we nt to him to r

emonstra te with him f

or not set tling it. T his case should have been settled.

* * *

I would suspec t that a wi se plainti ff migh t be talking about

some settlement. The question is, can I g et a wise defendant. He’s been forewarned now. I

know how you handle c ases, Mr. Reviere. Perhaps you might oug

ht to knock

somebody

around a little bit.

The trial judge again discussed the issue of settlement during the November 9, 2000 hearing on the motion to stay execution of the judgment.

Trial Judge: Let me ask y ou – it has bothered me in this case since it’s inception, of why it didn’t settle. Was this million dollars offered to the plaintiff?-8- Mr. Reviere: I g

uess we’re waiting. I

understood that the discussions and mediation are supposed to be kept in confidence. B ut I was . . .
Trial Judg e: Well, I

think I ’d like to c onsider t hat, bec ause I

strongl y detect an insurance company that has gone beyond the realm of recalcitrance. Knowing the facts, or they

should have known the facts in this case, they

should have been up there, cramming the million dollars down these plaintiffs’ throats. Now, the plaintiff can pound their chest all th ey want to and say , “Well, we ain’t going to accept that or we wouldn’ t accept it,” but he would have been an utter fool if he didn’t, and he would have per haps been sued for malpractice somewhere a long the line. But I de

tect an unwillingness to de al. I

detect a n unwilling

ness to g et this ca se to its ultimate conclusion, to hold it off, to not settle the case.

* * *

I don’t see that, now that we’ ve got judgment here – what did they offer the man? Did they ever offer any thing near the million?

Mr. Revie

re: Well, I ’m answe

ring thi s becaus e Your Honor has pu t the question to me, and as an officer of the court I am responding. I guess I have to sa

y a t the outse

t, it was my

understa nding tha t this is not, this was supposed to be, under the rules, kept in confidence. But I will answer y

our question.
Trial Judg e: Well, it’ s kept fr om the cou

rt prior t o trial. A nd what I’m attempting to do is to evaluate and see if there was a good-fa ith attempt to settle, or as I strongly have suspected all along, there wa s not. * * * I re member r emonstra ting with you gentle men afte r the jury came-9- back with – no, I gue ss it was on the Motion for New Trial, and suggesting that now that the adre naline had subsided and the emotions h ad ease d, that y ou look to se

ttling thi s case. I

assume that settlement negotiations were to no avail, or I wouldn’t have you in he re to da y. W er e t he re an y?
Following the hearing on the motion to stay execution of

the judgment, the trial judge denied the mo tion and st ated as its p rimar y reason t he fol lowi ng:

I’m of the opinion, and remain of the opinion, that this insurance company has not neg otiated in good faith, that they were attempting to delay this case a

nd they are

attempting at this time to obtain the benefits of the very

situation that they crea

ted, that is essentially, a free a ppeal, ha ving a c ase that

should hav e been se

ttled and could have been settled.

In its order denying

the motion, the trial court stated that “the liability insurance ca rrier of the movants, Harco N ational I nsuranc e Company , failed to negotia

te in good faith to conclude this matter by settlement and is now att empting to take a dvantag e of its ea

rlier imp roper a ctions to th

e sole detriment of the plaintiffs.”

On several occasi ons t hrough out t his ca se, th e tria l jud ge adama ntly sta ted th at Mr. Briggs and Southland Transportation’s insuranc e carr ier shoul d have se

ttled with the pl ainti ffs. T he tri al jud ge said that the insurance carrier acted improperly and fa iled to negotiate a settlement in good faith. He even went sofar as to

inquire into confidential settlement conferences betwee n Judge McGinley a

nd the parties. From the totality of the trial judge’s comments and actions during the ca se, we find an appearance

of bias a gainst Mr. Briggs and Southland Transportation due to the failure of settlement betweentheir insurance carrier and the pla intiffs. As a result, we are unable to find that the trial judge could objectively and prope

rly discharg e his duty as thirteenth juror to indepe nd en tly weigh the evidence. Accordingly , we must reverse and remand for a new trialin accordance with this opinion.

Becau se we reverse and remand for a new trial , we decline to reach the re maining issues present ed to us on a

ppeal.-10- III. Conclusion

For the foregoing reasons, the de cision of the trial court is reversed, and the case is remanded for a new tri al in acc ordance with this op inion. Co sts of this appeal are taxed equally against the Appellan ts, Allen L. Brigg s and Southland Transport ati on, and their surety, a nd the Appellees, Robert Lew is Davidson, Dianne Cook, Sandra Davidson, Donald Davidson, Gary Dean Davidson, Robert Dale Davidson , CharlesR. Lind sey , Jason R. Ross , and Alan P. Ross, for which execution may issue if ne ce ss ar y.

___________________________________ ALAN E. HIGHERS, JUDGE