# FILED
February

7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk TINA R. GUFFEY, ) ) Plaintiff/Appellee, ) ) Bedford Count

y Circuit ) No. 6816 VS. ) ) Appeal No. ) 01A01-9609-CV-00400 WENCO OF SHELBYVILLE, INC. ) d/b/a WENDY’S RESTAURANT, ) ) Defendants/Appellant. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM C IRCUIT COU RT OF WILLI AMSON COU

NTY AT SHELBYVILLE , TENNESSEE
HONORABL E LEE RUS SELL, J UDGE Richard Demonbreun, Attorney 1000 Demonbreun St., Suite 220 P.O. Box 23826 Nashville, TN 37202-3826 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE Steven A. Dix, Attorney Suite 201, Court Square Building 201 W. Main Street Murfreesboro, TN 37130 ATTORNEY FOR DEFENDANTS/APPEL LANTS 

### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

TINA R. GUFFEY, ) ) Plaintiff/Appellee, ) ) Bedford Count

y Circuit ) No. 6816 VS. ) ) Appeal No. ) 01A01-9609-CV-00400 WENCO OF SHELBYVILLE, INC. ) d/b/a WENDY’S RESTAURANT, ) ) Defendants/Appellant. )



### O P I N I O N
This i s a “slip and fall case” in which the jury awarded $173,250, and the defendant appealed.

The only issue on appeal is whethe r, in response to a post-judgment mot ion, the Trial Judge erred i n declini ng to allow def endant a credit f or $45,26 8.92 for a

mounts previous ly p aid to or on behalf of plaintiff by defendant’s liability insuranc e carrier.

The rec ord is sharp ly abbrevi ated. It consi sts o nly of the follo wing:

1. The complaint, which alleges neglige nce, injuries, expenses of past and future treatme nt, past and future pain and suffering, bodily impairment, past and future loss of wages and earning capacity , and loss of service and consortium

2. The answer, deny ing all facts relevant to this appeal and asser ting compara

t ive negligence.

3. An order reciting a finding by the jury of $ 175,000 d amages to the injured plaintiff , 1% faul tby said plaintiff and zero da mages to the spouse. Judgment was awarded to the injured plaintiff for $173,250.-3- 4. A “Motion to

Modify the Judgme

nt” to reduce it $45,268.92, the amoun t paid to
or on behalf of the injured plaintiff by Aet na Casualty Company , liability insurance ca rrier of defenda nt.

5. An sworn memorandum in support of said motion.

6. An affid avit rea

ding as f ollows: I, Chester J. Craig, after ha ving first been duly

sworn, do state an d affirm

upon per sonal know ledge a s follows: 1. I am a claims supervisor with the Tra velers/Aetna Casualty and Surety

Company and I

am the supervisor re sp on si bl e for th e c la im of Ti na Gu ff

ey. 2. My c ompany

has alre ady

paid $18, 424.78 in medical expenses to health care providers of Tina Ga ffey for treatment arising out of her accident at Wendy’s on January 8, 1993. 3. My company

has already

paid directly to Tina Guffey $26,844.1 4. There

fore, the total am

ount advanced to or on behalf of Tina Guffe y is $45,268.92.
7. An unsworn response to defendant’s motion, asserting that the only medical expenses proven at trial were those not paid by defendant, and that counsel for defenda nt assured counsel for plaintiff that no set-off would be cla imed for payme

nt of unproven expenses. The resp onse is sile nt rega rding th e $26,844 .14 alleg edly

advanc ed directly t

o plaintiff.

8. A “Mem orand um Opi nion ” of th e Trial Judge stati ng: The carrier paid pre-trial $45,268.92 in medica l specials and in lost wages. There is no evidence of any written or oral agreement between the Plaintiff and the carrie r about c redit for these two

categ ories of

pay ments either at the time the pay ments were made or subsequently. There

was a pre-trial conferenc e in the case, at which t

he defe ndant soug

ht to exclud

e certa in medica l bills from the proof, including bills already paid by the carrier. This judge reca

lls that at the pre-trial conference in th e case, there w ere vagu e disc ussi ons of strea mlin ing the case , but no ag

reemen t on how or

whether any credits-4- for pay ments made

pre-tri al were

to be hand

led. At tr ial only $4,345.00 of the medical e xpenses paid by the carrie r were p roved, a nd no lost w ages w ere pai d. Not only was there

no proof of who paid the expenses and wagesor whether they

were pa id, but the

re was n ot even an y pr oof of los t wage s or of mos t of these medical expenses. The Def

endant di d not, for

obvious re asons, at

tempt to prove the fact that the carrier had pa id any expenses. Neither party

attempted to prove the fact that wages ha d been lost or that most of the medical expenses had even been incurred. The Defenda nt did not request that the Plaintiff be made to prove the element of his damages or raise with the court during the trial the significa nce of the failure of the Pla

intiff to p rove thos e particular damages. If any part of the judgment in this case is offset by the amount of

the pre- trial pay

ments, the

n the Def endant w ill receive funds for lost wages a nd medical expenses which the jury intended for anot her purp ose, for

instance , loss of earning capacity

in the future or pain and suffering. I f this court held that there is no set-off and that the Defendant is not entitled to recover anyof the funds prepaid, then the Defendant simply loses the benefit of having dealt g enerous ly w ith the Plaintiff. Th is court holds that the judgment contains only $4,345.00 for the payment of medica

l expenses which had been paid pretrial to or for the Plaintiff. The Defendant is entitled to a credit f or that a mount. This ruling should not be construed as foreclosing the issue of th

e Plaintif f’s debt to the ca rrier. T he carr ier is not a party to the tort

litigati on,. And it

may be that there will have to be litigation between the carrie r and the Plaintiff to determine what the contractual or equitable oblig ations of the Plaintiff are to the carrier. One must speculate how the carrier would have perce ived the obligations of the Plaintiff to repay if the Defendant

had prev ailed at t

he trial on the lia bility issue. The

carrie r certa inly could hav e dealt with these

issues in a

clear w ay , in writin g, when it first began making pay

ments to or for the Plaintiff. The Order entered by

this court on this motion will be limited to the issue of set-off.
9. An ord er sta ting: IT APP EARED to the Cour

t as follow s: 1. That the j ury ’s verdi ct was in a ll respects consiste

nt with the evidence

in the ca se and wa s not exces sive in its amount; 2. That the Defendant is therefore not entitled to a remittitur;-5- 3. That the Defendant is entitled to a set-off ag ainst the judgment of $4,345.00 for medical pay ments made pre-trial and proved by the

Plaintiff at trial; and 4. That the D efenda nt is not en

titled to a set-off in this litigation for any

other amount paid to or for the Plaintiff prior to trial and the rights and obligations of and betwee n the carrier and the Plaintiff which result from the pre -trial pay ment of expenses and wage s not proved at trial is expressly found to be

inapprop riate fo r deter mination in

this case, and therefore IT IS ORDERED

that the Motion for Remittitur is denied and IT IS further

ORDEREDthat the D efenda nt rece ive a set

off in the amount of $4,345.00 against the judgment of $1 73 ,2 50 .0 0 a wa rd in th is ca se by t he ju ry.

10. Notice of Appeal and Appeal Bond.

In Byrd v. S

tuart , 224 Tenn . App. 46, 450 S.W.2d 11 , (1969), the injured party
execu ted a “R eceipt for Ex pense Advan ced” st ating:

“This amount is to be

credite d to any

final judgment which y ou may obtain as a r esult of This accident.” After entry

of judgment in favor of plaintiff, the Trial Court refused de fendant’s request for reducti on of the j udgmen t to the exte

nt of the a

dvance ment. Def

endant br ought a separa te action in equity for the sa me relief. The Chancery

Court sustained a demurrer and dismissed. The Supreme Court reversed, remanded for further proceedings and said: While we have not heretofore considered the procedure of o

btaining proper c

redit for advanc e pay

ments of judgm

ents, we are not, however , convinc ed that appellant was without a means of relief in the law di vi si on of

th e t ri al co ur t. In t hi s w e h av e b ee n g re at ly persuaded by

the authority of wha

t so far as we are aware in the only

reported case dealing with the procedure of obtaining proper c redit for advance pay ment of jud

gments. That cas e was Edwards v. Passarelli Bros. Automotive Service, Inc. , 8 Ohio St.2d 6, 37 Ohio O.2d 298, 221 N.E.2d 708, 25 A.L.R.3d 1087 (1966). [6] So far aswe are aware , such pos t judgme nt motions are unknown in the practice and procedure of-6- this state. We strongly fee l, however, that matters such as this should be resolved in the suit at law. We conceive of no rea son why , after

the jury has retu rned its v erdict and been discharged, and a ny motions for new trial and remittitur or additur have been disposed of, the defendant could not move the court to accept proof of the advance pay

ment. Should the trial judge then find the advancement to have been made, he could incorpor ate the p artial sa

tisfacti on in his jud

gment. [7] Nowhere in the record of this cause is it shown that appe

llant eve r attempt

ed to cla

im his part

ial satisfaction of judgment in the law division. Under the facts of this case

we are not inclined to say

that this de pr iv es ap pe ll an t o f h is re li ef in eq ui ty.
Presumably, on remand, the Chancery

Court awarded the requested refund of advanc ement.

In Howard v. Abernathy , Tenn. App. 1988, 751 S.W.2d 432, no “agreement to refund advancement” was signed. Howe ver, the expenses advanced were proved and included in the judgment. The Trial Court overruled a post judgment motion for cr edit for the advancements. This Court reversed and reduc ed the judgment by crediting the advancements. This Court discussed the applicable principles of law stated in Byrd v. S tuart and concluded: This Court conceives of no valid reason why the foregoing should not be controlling in the present case despite the lack of an expr

ess agr eement f or cred it and the

subseque

nt adoption of T.R.C.P. Rule 8.03. If a post-judgment pa

yment had not been c

redited upon the judgment, the defendant certainly would have a right to an order a llowing t he cred it. No rea son occu

rs to this Court why credit should not lik

ewise be allowed f

or a pre -judgme

nt pay ment. The

action of

the Tria l Judge is b efore t

his Court for review de novo. This Court is therefore in position to and should take the action which should have been taken by the Trial Judge. The acti on of the T

rial Judg e disallowing the c redit is reversed. The judgment is reduce d from $7500.00 to $6093.00.-7- Plaintiff asserts that the expenses and damages for which a dvancements were made for defendant were not proved by agreement of counsel and we re not included in the verdict and judgment.

The memor

andum of t

he Trial Judge quo ted above , servesas his find ing of f act as to what did and did not occur in his presence.
A careful reading of tha

t memorandum fails to disclose any support f or any alleg ation of any ag reement between counsel. There is no af fidavit or other evidence in the record fr om which this Court could find an agreement between c ounsel.
The memorandum of the Trial Judge does establish that only $4,345.00 medical expenses were proved, and no loss wages we re paid (proved?).
Burden of Proving Damag es The comparative fault doctrine has altere d the process by w hich the jury alloca

tes fault among the parties, but it has not altered the proce ss for calculating the plaintiff’s damages. Juries still have the exclusive province to assess damages within the range of reasonableness established by the proof. Smith v. Shelton , 569 S.W.2d 421, 427 (Tenn. 1978); Tennessee Coal & R.R. v. Roddy , 80 Tenn. 400, 407-08, 5 S.W.286, 289 (1887). The jury’s first task is to determine the total a mount of the plaintiff’s damages based on the proof. Then, and only then, c an the jury proc eed to allocate fault among the parties ( including the plaintiff) and to determine each party ’s monetary liability by dividing the total amount of the pl ai nt if f’ s d am ag es by t he pe rc en ta ge of fa ul t a ll oc at ed to th e p ar ty.
The comp arative

fault doctrine ha s likewise not alter ed the bur den of pr oof in negligence case s. Plaintiffs still have the burden of presenting proof that will enable the jury to reasonably de

termine the amount of their damages. Keith v. Murfreesboro Livestock Mkt .,-8-

Inc. , 780 W.W.2d 7 51, 755 (T enn. Ct. Ap p. 1989); Dill v. Ga

mbill Aspha lt Materia ls , 594 S.W.2d 719, 7 22 (Tenn . Ct. App. 1 979. We should not ac quiesce in a proc edure th at permit s the jury to specul ate abou

t the extent

of the pla

intiff’s damage s.
In a ty pical personal injury c ase, the plaintiff will present proof concerning (1) the circumstances of the injury , (2) the medical treatment received a nd need for additional medical treatment, (3) the cost of the medical trea tment, (4) pain and suffering, (5) and the future im pact of t he injury on the pla

intiff’s life. I

f we per mit the pla

intiff to te stify

about his or her medical treatment without also requiring proof of the cost of the treatment, we leave the jury to speculate

about how much the medical expenses were. Thus, the jury ’s calculation of damages may end up bearing no relationship to the actual cost of the medic al treatme nt.

Plaintiff s in perso nal injury

cases ha ve the bur den of pr oving a ll their da mages, including damages for which they have received some advance payment. They

should not be relie ved of

this burde n unl ess (1 ) the co urt ha s exc luded other wise c ompet ent da mage evidenc e or (2) the part

ies have formally agreed or stipula

ted that p roof concerning

certain damages will not be presented to the jury . In all other circumstance s, the courts should find that the a mount of da

mages c alculated by

the jury repres ents the f

ull amount o f damag es to which the plaintiff is entitle d. Unless one of the se two cir cumstanc es exist, the

courts sh ould subtract any a

dvancements a defendant has made fr om the verdict against that particular defendant without regard to whether or not the plaintiff introduced proof of these damag es. We need not decide in this case what should be done if the advanc ements exceed the amount of the jud gment a gainst a particular def

endant.
Upon this me ager r

ecord, t his Court is unable to

presume that evid ence of certain expenses was not introduced as a result of an unproven ag reement between counsel. I n the absence of a tra nscript, this Court c annot pre sume that t he jury was instr ucted to i nclude in-9-

the verdict only prove

n expenses and losses, and that they obe yed that instruction, thereby excluding such dama

ges fr om the ver

dict.

In this record, we ha

ve only the g eneral verdict of the jury for $173,250.00, the affidavit of $45,268 paid to plaintiff, the memorandum of the Trial Judge asserting that no monetar y lo sses wer

e proven except $4, 345.00, a

nd an ord er redu cing the

judgmen t by this amount.

This Court c annot pre sume that t he jury included unprove n damag es in its ve

rdict.
This Court can and does presume that the $4,345 proven medical expense was consider ed in arr iving at the gen eral ve rdict. Th erefor e, the se t-off sho uld be in th

is amount.
The judgment of the Trial Judge is reducing the original judgment of $173,250.00 by only $4,345.00, resulting in a ne t judgment of $168,905.00 is affirmed. Costs of this appeal are taxed against the plaintiff. The cause is re manded to the Trial Court for further procee dings.



### AFFIRMED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

____________________________ BEN H. CANTRELL , JUDGE

____________________________ WILL IAM C. KOCH, JR., JUDGE