IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 18, 2008 Session

RONNIE BERKE v. CHUBB GROUP OF INSURANCE COMPANIES and

PACIFIC INDEMNITY COMPANY

Direct Appeal from the Chancery Court for Hamilton County

No. 96-0982 Hon. John B. Hagler, Chancellor, Sitting by Interchange

No. E2007-02132-COA-R3-CV - FILED AUGUST 14, 2008

This action was filed on October 3, 1996 in the Chancery Court. The Final Judgment was entered

in the Trial Court on September 13, 2007. On appeal, we vacate and remand for a new trial inter alia

due to the unreasonable delay by the Trial Court in rendering judgment.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Vacated and

Remanded.

HERSCHEL PICKENS FRANKS,P.J., delivered the opinion of the Court, in whichCHARLES D.SUSANO,

JR., J., and D. MICHAEL SWINEY, J., joined.

Andrew L. Berke, and Megan England Demastus, Chattanooga, Tennessee, for appellant.

William B. Jakes, Nashville, Tennessee, for appellees.

OPINION

Plaintiff filed a Complaint on October 3, 1996, alleging that he had suffered a loss

to his home on October 5, 1995, and that he was insured by defendant who had not paid his claim.

Defendant answered, admitting plaintiff was insured, but denying that the claim

remained unpaid. On July 29, 1997, defendants filed a Motion to Compel regarding plaintiff’s

failure to answer interrogatories, and an Agreed Order was entered on August 20, 1997, which stated
The letter from the Tennessee Court of the Judiciary, dated May 23, 2007, was addressed

1

to plaintiff’s counsel in regard to an anonymous complaint against Judge John B. Hagler, File No.

073098. The letter states: 

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plaintiff would respond within 30 days. On September 30, 1997, defendants filed a Motion to

Dismiss for plaintiff’s failure to respond to discovery documents. On July 24, 2000, defendants filed

another Motion to Dismiss for failure to prosecute. Plaintiff then filed a Motion to Set, and an Order

was entered on August 15, 2000, setting the case for trial on November 28, 2000. 

On November 6, 2000, plaintiff filed a Motion to increase the amount sued for, and

defendants moved to continue. The Trial Judge then recused himself from the case on November

13, 2000, and another Trial Judge was designated to sit on the case by interchange. 

On December 1, 2000, defendants filed a Motion to Set and Impose Deadlines for the

Completion of Discovery. On January 16, 2001, the Court entered a scheduling order, and set the

trial for August 27, 2001. Defendants then filed a Motion for Continuance on August 16, 2001, and

the Court entered an Order resetting the trial by agreement of the parties. 

The trial was held on December 19 and 20, 2001. At the conclusion of the proof, the

Court took the case under advisement. 

On March 17, 2006, approximately 4 1⁄2 years after the trial, the parties filed a joint

Motion for Status Conference. On August 23, 2007, the Trial Court entered a Memorandum Order

stating that the “undersigned, who accepted assignment of this case from the Chancery Court of

Hamilton County, has held this case far too long and expresses his apologies without excuse for the

delay.” The Court then stated that the plaintiff had failed to prove his claims by a preponderance of

credible evidence, that it needed to “recount the bumpy procedural path of this case as facts

particularly relevant to the burden of proof”, and explained that the plaintiff had failed to prosecute

the lawsuit even though pressed by the defendants and the Court. The Courtstated that the case laid

dormant for two years and 8 months, until another motion to dismiss was filed, and that although the

case was dormant, plaintiff had proceeded to put a new roof on the house and commenced an interior

renovation at great expense. 

The Court stated that all of this detail in the Order was not to embarrass plaintiff, but

to show how the lack of progress was compelling evidence against plaintiff’s claims, because it was

unreasonable for “a man who had the best legal expertise available” to sit in his “leaky home” for

two years before putting on a new roof. 

The Court then dismissed the complaint and taxed costs to the plaintiff. 

Plaintiff then filed a copy of an anonymous letter that was sent to the Court of the

Judiciary regarding the Trial Judge’s delay in issuing an opinion in this case, and filed a Notice of 1
This office is in receipt of an unsigned complaint alleging Judge Hagler took

under advisement on or about December 20, 2001, the case of Berke v. Chubb Group

. . . and has yet to rule on the case.

If you wish to make any written comments to me, please do so within fifteen

(15) days. I will send Judge Hagler a copy of any correspondence you might send.

The letter was signed by the Hon. Joe G. Riley, Disciplinary Counsel, and a copy of the letter was

sent to Judge Hagler.

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Appeal. 

Plaintiff’s issues on appeal are:

1. Whether the evidence preponderates against the Trial Court’s judgment when

defendant admitted that plaintiff suffered a loss, and defendant’s internal

adjuster dismissed the credibility of defendant’s estimate of damages?

2. Whether the Trial Court committed misconduct in this case when it issued an

opinion five years after trial, and rather than discussing the evidence, used the

order as a method of vindication against plaintiff for an anonymous complaint

filed against the Judge?

Plaintiff argues the Trial Court erred in dismissing his claims, when the defendants

admitted that plaintiff suffered a loss. The record demonstrates that defendants obviously believed

that plaintiff suffered a loss following the storm in October 1995, and this fact was not really

disputed at trial, and the defendants did attempt to adjust the loss. Essentially, the only dispute

regarding the loss was the amount of damages. The evidence was undisputed that plaintiff suffered

the loss after the storm and defendants admitted same by attempting to pay for the loss. Thus, for

the Court to disallow plaintiff’s claims in their entirety based simply on plaintiff’s perceived lack

of interest was harsh and improper.

The Trial Court’s attempt to show various delays in the prosecution of this case as

being indicative of plaintiff apparently not really having a loss, is not supported by the record. The

record shows that the delays in the prosecution of the case were not egregious, and were not entirely

plaintiff’s fault. The longest delay, obviously, was the 4 1⁄2 years it took the Court to render a

Judgment. Plaintiff explained that he was waiting on the insurance company to work things out with

him. The insurance company adjuster explained that he was waiting on the independent adjuster,

and the independent adjuster explained that he was waiting on the contractor. The evidence did not

establish that every delay was plaintiff’s fault.

We conclude there was absolutely no basis for the Trial Court to dismiss the

plaintiff’s claims.
This is expressed in recent cases as “justice delayed is justice denied”, e.g., Goldberg v.

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Goldberg, 1995 Tenn. App. WL 9309.

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 Reviewing the chronology of events in this case, brings to mind a quote by the

Tennessee Supreme Court in The State ex rel. v. Malone, et al., 35 Tenn. 700-726 (Jackson, April

1856) “. . . [w]e think we recognize the surest safeguard for the subject against the license of the

crown - the most obvious and approved pledge for the observance of that duty which is imposed on

our judges by those memorable words of Magna Charta; nulli vendemus, nulli negabimus, aut

differemus, justitiam vel rectum - justice shall neither be delayed, denied, nor sold, but shall be

administered impartially to all.” Delays of this duration cannot be condoned and result in prejudice 2

to the judicial process. Tenn. R. App. P. 36(b).

We vacate the Judgment of the Trial Court and remand for a new trial to be conducted

without further delay. We, in our discretion, assess one-half of the cost of the appeal to the plaintiff

and one-half to the defendants.

______________________________

HERSCHEL PICKENS FRANKS, P.J.