Brooks Monypeny v. Chamroeun Kheiv ( 2015 )


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  •                 IN THE COURT OF APPEALS OF TENNESSEE
    AT MEMPHIS
    February 24, 2015 Session
    BROOKS MONYPENY, ET AL. V. CHAMROEUN KHEIV
    Appeal from the Circuit Court for Shelby County
    No. CT00205012      Jerry Stokes, Judge
    No. W2014-00656-COA-R3-CV - Filed April 1, 2015
    This is an appeal from a judgment entered on a jury verdict. The case arises from a motor
    vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured
    motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries
    sustained in the accident, the other some two years after the accident. The plaintiffs’ children
    were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict
    on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of
    cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing
    argument; (4) exclusion of notations on medical records; (5) various acts of alleged
    wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of
    medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict;
    (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for
    medical and death payments made by State Farm under the insurance policy; and (11) award
    of discretionary costs. Because there is material evidence to support the jury’s verdict, and
    because the trial court did not abuse its discretion, we affirm and remand.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
    Affirmed and Remanded
    K ENNY A RMSTRONG, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
    P.J., W.S., and B RANDON O. G IBSON, J., joined.
    Robert L. Moore, Memphis, Tennessee, for the appellant, State Farm Mutual Insurance
    Company.
    Thomas R. Greer and R. Sadler Bailey, Memphis, Tennessee, for the appellees, Brooks
    Monypeny and David Monypeny; Donald Capparella and Tyler Chance Yarbro, Nashville,
    Tennessee, for the appellees, Robert Edwin Sadowski and John Russell Sadowski.
    OPINION
    I. Background
    On March 11, 2012, Mr. Emil Sadowski and his wife, Kathryn Sadowski (together the
    “Sadowskis”) were injured in an automobile accident. At the time of the accident, Mr.
    Sadowski was driving a 2000 Lexus RX3 SUV, in which Mrs. Sadowski was a front-seat
    passenger. The Sadowskis had just finished lunch near the Wolfchase Mall in Memphis and
    were exiting the mall onto Highway 64/Stage Road. As the Sadowskis’ vehicle exited onto
    Highway 64, it was hit by Mr. Chamroeun Kheiv’s 2005 Subaru Impreza,1 which was
    traveling east on Highway 64. Mr. Kheiv had three passengers in his vehicle. At the time
    of the accident, Mr. Kheiv was 28 years old. Mr. Sadowski was 90 years old, and Mrs.
    Sadowski was 82 years old.
    Prior to the accident, all of the evidence indicates that the Sadowskis were both in
    very good health despite their age. Mr. Sadowski was a diabetic, but he was able to care for
    himself and administer his insulin. Mr. Sadowski was also an avid exerciser, who rode his
    bicycle almost daily. He had undergone hip replacement surgery some years prior and had
    replaced his daily walks with bike rides. Likewise, Mrs. Sadowski was physically fit and
    mentally sharp. She and Mr. Sadowski ate lunch out at a restaurant most days. Mr.
    Sadowski also loved to drive. According to the testimony of family members, it was not
    uncommon for the Sadowskis to take day trips from Memphis to Little Rock or Nashville just
    to each lunch and drive around. There was no testimony that Mr. Sadowski’s age had
    impaired his ability to safely drive. The couple was actively involved in their church, and
    they were also very involved with their family. At the time of the accident, the Sadowskis
    had been married for approximately thirty years, and it was the second marriage for both.
    Mrs. Sadowski had two children from her first marriage, Brooks Monypeny and David
    Monypeny. Mr. Sadowski had three children from his first marriage, Terri McCord,2 Robert
    Edwin Sadowski, and John Russell Sadowski.
    1
    Throughout the record, Mr. Kheiv’s name is spelled “Kheiv” and “Khiev.” For
    purposes of consistency, we will use the spelling contained in the original complaint, i.e.,
    “Kheiv.”
    2
    Ms. McCord is not a party to this appeal.
    2
    The site of the accident, Highway 64, is a six-lane road, with a grass median in the
    center, separating the east-bound three lanes from the west-bound three lanes. The exit that
    Mr. Sadowski was using is designed to direct merging traffic into the right lane of Highway
    64; however, it is possible for a vehicle to cross the three east lanes of Highway 64 from the
    exit to turn west onto Highway 64. As discussed infra, there is dispute as to whether Mr.
    Sadowski was turning right (east) onto Highway 64, or whether he was attempting to cross
    the three east lanes to go west onto Highway 64.
    There was one eyewitness to the accident, Connie Taylor, an emergency room nurse
    from Nashville. She testified at the trial by deposition. Ms. Taylor stated that she was
    traveling east on Highway 64 in the middle lane, having just made a right turn from
    Germantown Road. According to her testimony, she saw Mr. Kheiv’s vehicle in her rear-
    view mirror, coming up “very fast” behind her. She stated that she initially thought the
    Kheiv vehicle was going to hit the back of her car; however, according to Ms. Taylor, Mr.
    Kheiv passed her vehicle on the right and almost immediately collided with the Sadowskis’
    vehicle. After impact, the Sadowskis’ vehicle came to rest between two utility poles that
    were just east of the Wolfchase Mall exit. The Kheiv vehicle crossed the median and came
    to rest on the far north side of Highway 64, facing west. Ms. Taylor testified that she parked
    her vehicle by the Sadowskis’ vehicle and got out to render help. She stated that Mrs.
    Sadowski complained of shortness of breath, pain in her chest, and that she had a cut on her
    leg that was bleeding. According to Ms. Taylor, Mr. Sodowski was confused, asking “what
    happened,” and had some apparent injury to his face.
    The Sadowskis were taken, by ambulance, to Baptist Memorial Hospital. While at the
    hospital, both of the Sadowskis were treated by Dr. Kamul Jit Mohan, a board-certified
    internal medicine specialist. Dr. Mohan testified at trial that Mrs. Sadowski’s injuries were
    more acute that Mr. Sadowski’s. Mrs. Sadowski presented with a broken neck at her C7
    vertebra and injury to the ligaments supporting her spine. She also sustained injury to her
    aorta, which resulted in blood leaking into the pericardium. Mrs. Sadowski went into cardiac
    arrest shortly after she arrived at the hospital and had to be resuscitated. Although Mrs.
    Sadowski’s injuries would normally require immediate surgery, Dr. Mohan testified that she
    was not a surgical candidate because her blood pressure would not stabilize due to the aortic
    leak. She was placed on a ventilator to help her breath but could not be weaned off the
    ventilator due to the problems with her blood pressure. Dr. Mohan stated that when he
    attempted to lower the amount of oxygen she received, her heart would go into atrial
    fibrillation. Because Mrs. Sadowski could not be weaned from the ventilator, Dr. Mohan had
    to perform a tracheotomy. Mrs. Sadowski subsequently developed a trachea infection due
    to pseudomonas. The infection caused the area around the tracheotomy to become red and
    inflamed and to produce foul-smelling discharge. Dr. Mohan stated that, approximately two
    or three days after the accident, Mrs. Sadowski suffered a stroke that affected her right side.
    3
    A CT scan revealed that she had suffered one or two older strokes, but there is no evidence
    that these earlier ischemic incidents affected her daily life. Dr. Mohan stated that Mrs.
    Sadowski remained paralyzed on her right side. The stroke she suffered after the accident
    also resulted in the development of deep vain thromboses in her right leg and arm. Although
    the usual course of treatment would be blood thinners, Dr. Mohan testified that he could not
    give Mrs. Sadowski blood thinners because of her aortic injury. Accordingly, he had to insert
    a blood filter into her inferior vena cava. This resulted in additional pain, swelling, and
    stiffness in her right leg and arm.
    Dr. Mohan further testified that after the first ten days in the hospital, Mrs. Sadowski
    was conscious and aware of her condition. He stated that from that point, “her suffering
    never stopped.” She was prescribed very strong pain medications, including Dilaudid (which
    is six or seven times stronger than morphine, according to Dr. Mohan). Mrs. Sadowski
    suffered from depression and post traumatic stress disorder, which required psychiatric
    consultation and treatment with Xanax and Ativan. She developed a secondary infection,
    which Dr. Mohan called “healthcare acquired pneumonia.” This required him to put her back
    on the ventilator. Mrs. Sadowski was also put on a feeding tube. Dr. Mohan and Mrs.
    Sadowski’s family members testified that she had to be restrained at times because she would
    attempt to remove the tubes, which bothered her greatly. Due to her immobility, she
    developed decubitus ulcers. Although Mrs. Sadowski was moved to Baptist Restorative Care
    Hospital, a separate long-term acute care center, Dr. Mohan stated that she was still in an
    intensive care unit.
    Unlike Mrs. Sadowski, Mr. Sadowski’s injuries were not immediately life threatening.
    He presented at the hospital with back and chest pain. Approximately eight months prior to
    the accident, Mr. Sadowski broke his sternum in a fall. The chest pain was largely due to
    aggravation of the existing injury. Mr. Sadowski was, however, in a great deal of pain during
    his hospital stay. The family did not immediately tell Mr. Sadowski about the direness of
    Mrs. Sadowski’s condition. Mr. Sadowski was discharged from the hospital on March 20,
    2012 and was admitted to Baptist Rehabilitation in Germantown, where he was treated by
    Dr. Sunita Jain. Dr. Jain testified that Mr. Sadowski needed both physical and occupational
    therapies and required twenty-four hour nursing care. Dr. Jain opined that because Mr.
    Sadowski had no prior complaints of pain, the functional impairments that necessitated
    rehabilitation were likely caused by the accident. While at the rehabilitation center, Mr.
    Sadowski was assigned a case manager, social worker, and a counselor due to his agitation
    and increasing depression.
    Although he had lived independently prior to the accident, Dr. Jain testified that Mr.
    Sadowski never improved beyond “supervision level,” which required another person plus
    a walker for his daily functions. Accordingly, on the recommendation of his physicians, Mr.
    4
    Sadowski was discharged to Ave Maria assisted living center. The testimony indicates that
    Mr. Sadowski did not adjust well to assisted living; he called the center “jail” and fell into
    a deeper depression. In addition, although his cognitive function tested in the 77 th percentile
    during his stay at the rehabilitation center, after he moved to assisted living, the evidence
    indicates that his mental health deteriorated fairly rapidly.
    On May 8, 2012, the Sadowskis filed a complaint against Chamroeun Kheiv in the
    Circuit Court of Shelby County. In their complaint, the Sadowskis asserted that Mr. Kheiv
    was liable for their injuries due to various acts of common law negligence, violation of
    numerous statutes governing operation of a motor vehicle, and violation of numerous Shelby
    County and City of Memphis ordinances. Mr. Kheiv was not insured at the time of the
    accident. Accordingly, on or about June 6, 2012, State Farm Mutual Automobile Insurance
    Company and State Farm Fire and Casualty Company (“State Farm,” or “Appellant”), as Mr.
    Sadowski’s uninsured motorist carrier, entered an appearance as unnamed parties.
    On May 14, 2012, Mrs. Sadowski died as a result of the injuries she sustained in the
    accident. Thereafter, on August 8, 2012, her children, Brooks Monypeny and David
    Monypeny, as executors of Mrs. Sadowski’s estate, and Mr. Sadowski, as her surviving
    spouse (together with Brooks Monypeny and David Monypeny, “Plaintiffs”), filed a joint
    motion to amend the complaint to add Mrs. Sadowski’s children to the lawsuit and to add a
    claim for wrongful death and loss of consortium. Without objection by State Farm, the trial
    court granted the motion to amend the complaint, and the first amended complaint was filed
    on August 17, 2012. State Farm filed its answer to the first amended complaint on August
    20, 2012.
    On November 2, 2012, Mr. Kheiv’s three passengers, Jake Pravongiengkham, Jessica
    L. Huynh, and Vuthy C. Srey, filed a separate complaint against Mr. Kheiv and Mr.
    Sadowski alleging personal injuries arising out of the March 11, 2012 accident. On
    December 28, 2012, Plaintiffs filed a motion to consolidate their case with that of the Kheiv
    passengers. The motion was granted by order of January 11, 2013. By consent order entered
    on October 18, 2013, the Kheiv passengers voluntarily dismissed their claims against Mr.
    Sadowki. The Kheiv passengers ultimately settled their complaint against Mr. Kheiv.
    The case was tried to a jury on November 19 through 21, 2013. On December 13,
    2013, the trial court entered its judgment on the jury verdict. The order provides, in pertinent
    part:
    [T]he jury returned a verdict in favor of plaintiffs. . . and the
    written jury verdict is incorporated herein by reference. . . .
    The jury found the defendant, Chamroeun Kheiv 85% at
    5
    fault, and the plaintiff, Emil Sadowski, 15% at fault.
    The jury awarded Mr. Sadowki $1,050,000 in non-economic damages and $325,746 in
    economic damages. Based upon the jury’s assessment of 15% fault to Mr. Sadowski, the trial
    court reduced these amounts by 15% and then applied the $750,000 statutory cap to the non-
    economic damages. Tenn. Code Ann. §29-39-102. Accordingly, Mr. Sadowski’s damages
    were reduced to $1,026.884.10 ($750,000 in non-economic damages + $276,884.10 in
    economic damages). The jury awarded Mrs. Sadowski’s estate $875,000 in non-economic
    damages and $473,378.08 in economic damages, which amounts were reduced, by 15% and
    the applicable statutory cap, to $750,700 and $402,371.36 respectively, for a total damage
    award of $1,152,371.36. In addition, the jury awarded Plaintiffs a total of $450,000 on their
    loss of consortium claims. The trial court reduced this amount by 15%, bringing the total
    loss of consortium damages to $382,500.3
    On January 8, 2014, Mr. Sadowski filed a motion for discretionary costs, along with
    supporting documentation. Brooks and David Monypeny filed a separate motion for
    discretionary costs and supporting documentation on January 10, 2014. The trial court
    granted Mr. Sadowski’s motion by order of February 25, 2014, awarding Mr. Sadowski
    $9,500.25 in discretionary costs. On February 28, 2014, the trial court entered an order
    granting David and Brooks Monypeny’s motion for discretionary costs in part and denying
    it in part. The court awarded the Monypenys $5,247.90 in discretionary costs.
    While the motions for discretionary costs were pending, on January 10, 2014, State
    Farm filed a motion for new trial, remittitur, or alternatively to alter or amend the judgment.
    The requirement of filing a motion for new trial is governed by Rule of Appellate Procedure
    3(e), which provides, in part:
    [I]n all cases tried by a jury, no issue presented for review shall
    be predicated upon error in the admission or exclusion of
    evidence, jury instructions granted or refused, misconduct of
    jurors, parties or counsel, or other action committed or occurring
    during the trial of the case, or other ground upon which a new
    trial is sought, unless the same was specifically stated in a
    motion for a new trial; otherwise such issues will be treated as
    waived.
    3
    State Farm does not appeal the award to Mrs. Sadowski’s estate, nor the $75,000 of the
    loss of consortium damages that were awarded to her children, David and Brooks Monypeny. As
    discussed infra, State Farm appeals the damages awarded to Mr. Sadowski, including the $375,000
    in loss of consortium.
    6
    Accordingly, “in all civil cases tried to a jury, any ground not cited in the motion for new trial
    has been waived for the purposes of appeal.” Waters v. Coker, 
    229 S.W.3d 682
    , 689 (Tenn.
    2007) (citing Boyd v. Hicks, 
    774 S.W.2d 662
    , 625 (Tenn. Ct. App. 1989)). Furthermore,
    “[t]he issues presented in a motion for new trial must be specified with reasonable certainty
    so as to enable appellate courts to ascertain whether the issue was first presented for
    correction in the trial court; otherwise, the matter cannot be considered on appeal.” 
    Id. (citing State
    v. Gauldin, 
    737 S.W.2d 795
    , 798 (Tenn. Crim. App. 1987)). On our review, State
    Farm is compliant with the Tennessee Rule of Appellate Procedure 3(e) requirement in that
    the issues raised on appeal are set out with sufficient specificity in its motion for new trial.
    By order of March 7, 2014, the trial court denied State Farm’s motion for new trial,
    remittitur, or to alter or amend the judgment.
    State Farm filed its notice of appeal on April 4, 2014. Upon review of the appellate
    record, this Court determined that the order appealed was not a final judgment so as to confer
    jurisdiction on the Court under Tennessee Rule of Appellate Procedure 3. Specifically, we
    determined that the order appealed did not adjudicate the Plaintiffs’ claims for punitive
    damages, nor did the order adjudicate the claims of Mr. Kheiv’s passengers. Accordingly,
    on September 12, 2014, this Court entered an order, allowing Plaintiffs ten days to obtain a
    final judgment in the trial court. Pursuant to this order, on September 19, 2014, the trial court
    entered a supplemental order, adjudicating the remaining claims. The appellate record was
    supplemented to include the adjudicatory order.
    While the appeal was pending, on November 26, 2014, Mr. Sadowski died, having
    never left the Ave Maria assisted living center. On December 5, 2014, State Farm filed a
    suggestion of death in this Court. By order of January 21, 2015, we granted a motion to
    substitute, as parties to the appeal, the Co-Executors of Mr. Sadowski’s estate, his sons
    Robert Edwin Sadowski and John Russell Sadowski (together with Brooks and David
    Monypeny, “Appellees”).
    II. Issues
    State Farm appeals. It raises eleven issues as stated in its brief:
    1. Whether the court erred by failing to grant a directed verdict
    in favor of State Farm on all issues;
    2. Whether the court erred by allowing Chamroeun Kheiv to be
    cross-examined with the hearsay allegations of fault contained
    in the separate complaint filed against him on behalf of non-
    parties Jake Pravongienhkham, Jessica Huynh and Vuthy Srey
    7
    while at the same time denying State Farm the right and ability
    to prove that those allegations were subsequently voluntarily
    dismissed by these same parties.         The error was then
    exacerbated by plaintiffs’ counsel who highlighted these same
    hearsay allegations in closing argument;
    3. Whether the court erred by denying the motion for mistrial
    made by defense counsel when plaintiff’s counsel told the jury,
    during closing argument, that it should not be concerned about
    “where the money might come from” to pay a judgment against
    Mr. Kheiv, as this argument was a deliberate, improper allusion
    to insurance;
    4. Whether the court erred by allowing only selected Baptist
    Memorial Hospital medical records into evidence while
    excluding from evidence trial exhibit 22 in which the statement
    is made and attributable to the plaintiff that “the reason he was
    there [in the emergency room] was failure to yield, hit by a car;”
    5. Whether plaintiffs’ counsel was guilty of acts of wrongdoing
    (a) by displaying photographs of Kathryn Sadowski during
    opening statement and then not offering those photographs into
    evidence; (b) by displaying selected medical records of Kathryn
    Sadowski with key words lifted and highlighted for the jury
    without subsequently offering those records into evidence; and
    (c) by telling the jury, during closing argument, that it should
    “send through your verdict a message.”
    6. Whether the court erred by instructing the jury concerning
    TCA §55-8-118[, i.e., “Overtaking and passing on right,”] when
    this statute was not applicable to the facts of this case.
    7. Whether the court erred by allowing the introduction of the
    past and future “medical” expenses at the Ave Maria assisted
    living facility for Emil Sadowski in the absence of any proof
    that these expenses were (a) causally related to the automobile
    accident; and (b) consistent with the customary and prevailing
    charges in the community for the same or similar services.
    8. Alternatively, State Farm says that the jury award to the
    8
    plaintiffs was excessive and not supported by the material
    evidence such that the court should remit the total damages
    awarded to the plaintiffs pursuant to T.C.A §20-10-102 . . . .
    9. Whether the court erred by granting judgment on the jury
    verdict by applying principles of comparative fault to the total
    assessment of damages before reducing the non-economic
    damages to the statutory caps instead of first reducing the non-
    economic damages to the statutory caps and then applying the
    principles of comparative fault.
    10. Whether the court erred by failing to reduce the total
    judgment in order to reflect pre-verdict payments made by State
    Farm to the plaintiffs totaling $5,000 in medical payments and
    $20,000 in death benefits.
    11. Whether the court erred by awarding plaintiffs discretionary
    costs which included fees paid to treating physicians who
    testified either by deposition or live at trial.
    III. Standard of Review
    The standard of review when examining a jury verdict approved by the trial court is
    whether there is any material evidence to support the verdict. Tenn. R. App. P. 13(d). To
    determine if material evidence supports the jury’s verdict, the appellate court shall: “(1) take
    the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth
    of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the
    verdict; and (4) discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber
    Co., 
    48 S.W.3d 698
    , 704 (Tenn. 2000) (citing Crabtree Masonry Co., Inc. v. C & R Constr.,
    Inc., 
    575 S.W.2d 4
    , 5 (Tenn.1978)).
    IV. Analysis
    A. Directed Verdict
    At the close of Plaintiffs’ proof, State Farm moved for a directed verdict under
    Tennessee Rule of Civil Procedure 50.01.4 Plaintiffs’ theory of the case and contention is
    4
    Tennessee Rule of Civil Procedure 50.01 provides:
    9
    that Mr. Kheiv was operating his vehicle at a high rate of speed, beyond the posted speed
    limit along Highway 64, and that he was passing Ms. Taylor’s vehicle on the right when he
    collided with the Sadowski vehicle as Mr. Sadowski pulled into the right lane to merge onto
    Highway 64. State Farm argued that the Kheiv vehicle was “there to be seen” and that Mr.
    Sadowski apparently did not see the oncoming vehicle before proceeding onto Highway 64.
    As grounds for its motion for directed verdict, State Farm relied on Tennessee Trailways,
    Inc. v. Ervin, 
    438 S.W.2d 733
    (Tenn. 1969) and made the following argument at trial:
    This accident was going to happen. . . . And it didn’t matter if
    Mr. Kheiv was going 65 . . . or if he was going the speed limit.
    . . . [Mr. Kheiv] couldn’t miss [Mr. Sadowski] in either scenario.
    This accident was going to happen.
    Now, the Tennessee Trailways case is directly on point.
    . . . [In that case,] [a]n accident reconstructionist testified. . . that
    . . . a bus was speeding down the highway, when a motorcyclist
    against the right-of-way coming out of a private drive entered
    the roadway in front of that speeding bus. . . . And when he did,
    the accident happened. At the close of plaintiff’s case, the bus
    company . . . moved for directed verdict . . . . The Court . . .
    ruled in favor of the bus company.
    It went up to the Tennessee Supreme Court. And the
    Tennessee Supreme Court said, yes, under that situation, that
    exact same situation we have today, the proximate cause of the
    accident isn’t speed. The proximate cause of the accident is the
    motorcyclist, the plaintiff, who pulled from a position of safety
    against the right-of-way. . . for that bus company and caused this
    accident to happen.
    A motion for a directed verdict may be made at the close of the
    evidence offered by an opposing party or at the close of the case. The
    court shall reserve ruling until all parties alleging fault against any
    other party have presented their respective proof-in-chief. A party
    who moves for a directed verdict at the close of the evidence offered
    by an opponent may offer evidence in the event that the motion is not
    granted, without having reserved the right so to do and to the same
    extent as if the motion had not been made. A motion for a directed
    verdict which is not granted is not a waiver of trial by jury even
    though all parties to the action have moved for directed verdicts. The
    order of the court granting a motion for a directed verdict is effective
    without any assent of the jury.
    10
    As a matter of law, the proximate cause of that accident
    was Mr. Sadowski. . . . Mr. Sadowski must be found to be
    guilty of fault because all of the testimony to this point, he
    didn’t see Mr. Kheiv coming. And he has a duty under the law
    to see that which is there to be seen.
    The trial court subsequently denied the motion for directed verdict, finding that the question
    of fault was one for the jury.
    Directed verdicts are appropriate only when reasonable minds cannot differ as to the
    conclusions to be drawn from the evidence. Alexander v. Armentrout, 
    24 S.W.3d 267
    , 271
    (Tenn. 2000); Eaton v. McLain, 
    891 S.W.2d 587
    , 590 (Tenn. 1994); Ingram v. Earthman,
    
    993 S.W.2d 611
    , 627 (Tenn. Ct. App. 1998). A case should not be taken away from the jury,
    even when the facts are undisputed, if reasonable persons could draw different conclusions
    from the facts. Gulf, M. & O.R. Co. v. Underwood, 
    187 S.W.2d 777
    , 779 (Tenn. 1945);
    Hurley v. Tenn. Farmers Mut. Ins. Co., 
    922 S.W.2d 887
    , 891 (Tenn. Ct. App.1995). A trial
    court may, however, direct a verdict with regard to an issue that can properly be decided as
    a question of law because deciding purely legal questions is the court’s responsibility, not the
    jury’s.
    In appeals from a directed verdict, reviewing courts neither weigh the evidence,
    Conatser v. Clarksville Coca–Cola Bottling Co., 
    920 S.W.2d 646
    , 647 (Tenn. 1995); Benton
    v. Snyder, 
    825 S.W.2d 409
    , 413 (Tenn.1992), nor evaluate the credibility of the witnesses.
    Benson v. Tenn. Valley Elec. Coop., 
    868 S.W.2d 630
    , 638–39 (Tenn. Ct. App.1993).
    Instead, they review the evidence in the light most favorable to the motion’s opponent, give
    the motion’s opponent the benefit of all reasonable inferences, and disregard all evidence
    contrary to that party’s position. 
    Alexander, 24 S.W.3d at 271
    ; 
    Eaton, 891 S.W.2d at 590
    ;
    Smith v. Bridgestone/Firestone, Inc., 
    2 S.W.3d 197
    , 199 (Tenn. Ct. App. 1999). A trial court
    may, however, direct a verdict with regard to an issue that can properly be decided as a
    question of law because deciding purely legal questions is the court’s responsibility, not the
    jury’s.
    Concerning State Farm’s reliance on the Tennessee Trailways case, in ruling on the
    motion for directed verdict, the trial court noted that “comparative fault change[d] how we
    look at these cases in measuring fault. [When Tennessee Trailways was decided] in 1969.
    . . we had simply fault, any fault or rule would prevent the plaintiff from prevailing.” It is
    true that historically, Tennessee courts have applied the common law doctrine of contributory
    negligence, which barred recovery by plaintiffs whose own negligence contributed to their
    injury in any way. Carroll v. Whitney, 
    29 S.W.3d 14
    , 16 (Tenn. 2000) (citations omitted).
    However, in 1992, the Tennessee Supreme Court abandoned contributory negligence in favor
    11
    of a system of modified comparative fault. McIntyre v. Balentine, 
    833 S.W.2d 52
    , 56 (Tenn.
    1992). In doing so, the Court sought a tighter fit between liability and fault. 
    Carroll, 29 S.W.3d at 16
    . Under the new system, a defendant would only be liable for the percentage of
    damages that his or her own negligence caused. 
    Id. at 16-17
    (citing 
    McIntyre, 833 S.W.2d at 58
    .) Additionally, the Court adopted the non-party defense, allowing juries to apportion
    fault to a culpable person or entity though they are not a party to the lawsuit. 
    McIntyre, 833 S.W.2d at 58
    . The court recognized that without allowing participants in the negligent act to
    share in the apportionment of fault, the tight fit between fault and liability would be lost.
    
    Carroll, 29 S.W.3d at 20
    . Indeed, this Court has stated that, “[t]he trial court has the
    responsibility to apportion fault to anyone having a degree of culpability.” Lindgren v. City
    of Johnson City, 
    88 S.W.3d 581
    , 585 (Tenn. Ct. App. 2002) (citing 
    Carroll, 29 S.W.3d at 22
    ; Dotson v. Blake, 
    29 S.W.3d 26
    (Tenn. 2000); Bervoets v. Harde Ralls Pontiac–Olds,
    Inc., 
    891 S.W.2d 905
    (Tenn.1994)). Although the Tennessee Trailways case may be
    instructive on the issue of how much fault should be assigned to Mr. Sadowski, following
    the adoption of comparative fault in Tennessee, Tennessee Trailways does not, necessarily,
    preclude assignment of liability to Mr. Kheiv. In fact, the instant case is distinguishable from
    Tennessee Trailways, where the Tennessee Supreme Court held that there was “no doubt that
    plaintiff’s intestate rode his motorcycle up to the intersection, either hesitated or stopped,
    and, with the bus in unobstructed view, suddenly and abruptly crossed the highway into the
    northbound lane to the point of 
    collision.” 438 S.W.2d at 735
    . Under this scenario, the Court
    reasoned that “whether the bus was traveling 73.5 miles per hour or 63 miles per hour, speed
    was not a proximate cause of the accident as a matter of law.” 
    Id. The Court
    stated that it
    was “plain that the immediate cause of the collision was not the speed of the bus; but
    apparently the sudden and heedless entry of plaintiff’s intestate onto the north side of the
    highway.” 
    Id. As noted
    above, in reviewing the denial of a motion for directed verdict, this
    Court must view the evidence in the light most favorable to the motion’s opponent, give the
    motion’s opponent the benefit of all reasonable inferences, and disregard all evidence
    contrary to that party’s position. 
    Alexander, 24 S.W.3d at 271
    ; 
    Eaton, 891 S.W.2d at 590
    ;
    Smith v. Bridgestone/Firestone, 
    Inc., 2 S.W.3d at 199
    . Applying this standard to the facts
    at bar, we conclude that unlike the plaintiff’s intestate in Tennessee Trailways, who
    heedlessly pulled into the path of an observed vehicle, here, there is evidence that Mr.
    Sadowski may not have had the opportunity to observe the Kheiv vehicle as it approached
    from the west.
    Turning to the evidence that was presented in support of Plaintiffs’ case, Ms. Taylor
    testified that she was traveling in the middle lane of Highway 64 when Mr. Kheiv’s vehicle
    came up suddenly behind her. Ms. Taylor testified that she thought Mr. Kheiv’s vehicle was
    going to hit her car until the vehicle suddenly swerved into the right lane to pass her. She
    explained that as the Kheiv vehicle swerved, it was out of control, almost “fishtailing”:
    12
    As I remember, [the Kheiv vehicle] came up so fast behind me
    when I was looking in the rearview mirror I thought he was
    going to hit me. He swerved really sharp and came back and
    then hit the [Sadowski] car. That’s why I said he was out of
    control because it was almost like a fishtailing.
    Ms. Taylor went on to state that, once Mr. Kheiv swerved into the right lane of Highway 64,
    the collision happened “pretty immediately.” There was no evidence that Mr. Sadowski
    failed to stop at the stop sign, and Ms. Taylor further opined that Mr. Sadowski could not
    have seen Mr. Kheiv’s vehicle:
    Q. Could the SUV have seen–well, from the perspective of the
    SUV was there anyone else in the right-hand lane when they
    were making the turn?
    A. No. There was just the three of us right before the accident
    happened.
    Q. And the car that was coming up, it was coming up behind
    you, correct.?
    A. Uh-huh (Witness nods head affirmatively).
    In making its motion for directed verdict, State Farm relied, inter alia, on its cross-
    examination of Plaintiffs’ accident reconstruction expert, Rob Miller. State Farm presented
    Mr. Miller with a hypothetical that required him to assume that, if Mr. Kheiv’s vehicle was
    just 33 feet away from Mr. Sadowski’s vehicle and was only going 45 miles per hour (the
    posted speed limit on Highway 64) as opposed to 65 miles per hour,5 the accident would still
    have occurred:
    Q [to Mr. Miller on cross-examination]. Mr. Sadowski never
    saw Mr. Kheiv at all, did he?
    A. That was his testimony to the officer and his statement to the
    officer he didn’t know what happened.
    5
    It was never established that Mr. Kheiv was traveling 65 miles per hour; accordingly, we
    assume that the 65 miles per hour used in the hypothetical was an estimation of his alleged speed
    based upon Ms. Taylor’s testimony and the other facts surrounding the accident.
    13
    *                             *                           *
    Q. If we back up Mr. Sadowski one half second as we did
    before that is going to put him at or just below the fog line, isn’t
    it?
    A. Yes.
    Q. That is going to put Mr. Kheiv 33 feet away?
    A. Yes, sir.
    Q. Is Mr. Kheiv going to be able to miss Mr. Sadowski?
    A. He couldn’t miss him in either scenario.
    It must be noted that the foregoing testimony is based upon a hypothetical scenario.
    Nonetheless, we must disregard all countervailing proof when reviewing a trial court’s
    decision not to grant a directed verdict. 
    Alexander, 24 S.W.3d at 271
    .
    Concerning the actual circumstances of the collision, Mr. Miller testified that if Mr.
    Kheiv was not speeding when he changed lanes, he would not have been at the collision site
    and would have been observable by Mr. Sadowski:
    Q. It has been said that speed doesn’t matter, that the decision
    to pull out, in some ways it wouldn’t have mattered what speed
    the Kheiv car was going. Would you agree with that?
    A. No.
    Q. Why not?
    A. Well, but for excessive speed on the Kheiv vehicle there
    would have been no collision. If he’s following behind Connie
    Taylor at 30 miles an hour, there’s no collision. If he’s driving
    even at 45 miles an hour there’s probably not going to be a
    collision, because then he’s further back down the road. Even
    if he’s in the right lane at 45 miles an hour there’s probably no
    collision because then Mr. Sadowski looks left and sees a
    vehicle in the right lane and doesn’t pull out, so speed does
    14
    matter in this particular case.
    The testimonies of Mr. Miller and Ms. Taylor bring this case in line with the case of
    Roberson v. Motion Industries, Inc., No. E2004-02310-COA-R3-CV, 
    2005 WL 1584035
    (Tenn. Ct. App. July 7, 2005). In that case, defendant Travis Weathers testified that he
    stopped his vehicle at a stop sign and looked down the street both ways to see if there were
    any vehicles approaching. 
    Id. at *3.
    Seeing that it was safe to proceed, he pulled onto the
    road, where his vehicle collided with plaintiff Carl Roberson’s vehicle. 
    Id. Relying on
    the
    Tennessee Trailways case, Mr. Roberson claimed that his allegedly excessive speed could
    not be a proximate cause of the accident. 
    Id. at *3-*4.
    The jury found Mr. Roberson 38%
    at fault for the accident. The issues on appeal to this Court were whether Mr. Roberson’s
    excessive speed was the proximate cause of the collision as a matter of law and whether the
    trial court erred by not directing a verdict under Tennessee Trailways. 
    Id. at *4-*5.
    This
    Court affirmed the trial court’s denial of directed verdict and distinguished the Tennessee
    Trailways decision. 
    Id. Specifically, we
    noted that the passengers of the bus at issue in
    Tennessee Trailways testified that the “motorcycle driver’s entry onto the highway was
    ‘sudden’ and ‘right in front’ of the bus.” 
    Id. at *4.
    In contrast, Mr. Weathers testified that
    when he looked down the street, the only visible vehicle was a garbage truck that was not
    involved in the accident. 
    Id. We held
    that “[i]f the jury credited Weathers’ testimony, which
    apparently it did, then Weathers cannot be said to have pulled out in front of a vehicle which
    was in his unobstructed view.” 
    Id. at *4.
    We concluded that “[b]ecause there was evidence
    in the . . . case from which a jury could reasonably conclude that Mr. Roberson’s vehicle was
    not yet in sight and therefore not visible when Weathers looked for oncoming traffic and that
    Weathers did not simply pull out in front of an observed vehicle, the above cases [which
    included Tennessee Trailways]. . . are not controlling on the comparative fault issue.” 
    Id. at *5.
    Likewise, in the instant case, there is evidence from which the jury could reasonably
    conclude that Mr. Kheiv’s vehicle was not in sight, either because it was still traveling
    behind Ms. Taylor’s vehicle, or because it swerved into the right lane so suddenly that Mr.
    Sadowski could not have seen it before he proceeded onto Highway 64. Thus, there was
    sufficient conflicting evidence to create an issue of fact for the jury to decide. Accordingly,
    we conclude that the trial court did not err in its refusal to direct a verdict.
    B. Cross-Examination of Mr. Kheiv
    In its second issue, State Farm asserts that the trial court erred by allowing Mr. Kheiv
    to be cross-examined concerning sworn allegations made by the three individuals who were
    passengers in his vehicle on the day of the accident. Mr. Kheiv was State Farm’s witness;
    he was called to give his account of how the accident occurred. Contrary to Mr. Miller and
    Ms. Taylor’s testimonies, Mr. Kheiv testified that he was proceeding down Highway 64 in
    the middle lane when the Sadowskis’ vehicle pulled straight in front of his vehicle. Mr.
    15
    Kheiv testified that Mr. Sadowski was pulling across the three eastbound lanes of Highway
    64 in an attempt to go west onto Highway 64. He further stated that the point of collision
    was in the middle eastbound lane and that he was never in the right lane where Plaintiffs
    assert the accident occurred. On cross-examination, Plaintiffs’ lawyer questioned Mr. Kheiv
    about the differing versions. Mr. Kheiv was asked about the version of events offered by Ms.
    Taylor, the eyewitness. He responded that “she has her version; I have mine.” Then,
    Plaintiffs’ lawyer questioned Mr. Kheiv concerning the version of events offered in Mr.
    Kheiv’s passengers’ sworn complaint:
    Q. Did Mr. Srey file a lawsuit against you?
    A. Yes, he did.
    Q. And did he say you were driving recklessly?
    A. I don’t know what he said.
    Q. Did he say you were speeding?
    A. I don’t know what he said.
    Q. Did he say you failed to maintain a proper lookout?
    A. I don’t know what he said.
    Q. All right. Now, wait a minute. Let’s get this straight. You
    got sued. You got sued by Mr. Srey, the passenger in your car,
    and your testimony to the Jury is that you don’t know whether
    those allegations were made against you?
    A. I don’t remember him saying that.
    Q. Well, do you want to read it or do you want me to read it to
    you or what? You got the complaint, didn’t you, sir? Didn’t
    you get it?
    A. Yeah, I got it.
    Q. You got served. Is this the kind of thing that happens to you
    every day?
    16
    A. No.
    At this point in the cross-examination, State Farm’s lawyer objected and the following bench
    conference was held outside the hearing of the jury:
    MR. MOORE [State Farm’s lawyer]: Objection. Hearsay. He’s
    been cross examined about allegations outside of this courtroom.
    *                                    *                        *
    MR. BAILEY [lawyer for Mrs. Sadowski’s estate]: This is not
    being introduced for the truth of the matter asserted. This is
    being introduced to show that other people obviously had a
    different perception of this than he did. And he knows that he
    got sued and that he acknowledged it and didn’t answer
    any–didn’t cooperate in any way.
    This is all highly relevant to show the kind of person Mr.
    Kheiv is with regard to–
    THE COURT: You’re seeking to introduce the document [i.e.,
    the complaint filed against Mr. Kheiv by his passengers]
    MR. BAILEY: No. I’m not going to introduce the document.
    I’m just going to cross examine this witness.
    THE COURT: Objection overruled.
    MR. MOORE: As I understand it–
    THE COURT: Hang on a second.
    MR. MOORE: As I understand it from what he just said he’s
    trying to introduce it to show the state of mind of these
    passengers. And the state of mind of these passengers is not
    relevant.
    THE COURT: Objection overruled.
    State Farm’s argument concerning Mr. Bailey’s questioning of Mr. Kiev is two-fold.
    First, State Farm contends that the allegations made in the Kheiv passengers’ lawsuit were
    17
    hearsay statements or improper character evidence and, thus, it was improper for Plaintiffs’
    lawyer to cross-examine Mr. Kheiv about what his passengers averred in their sworn
    complaint against Mr. Kheiv. Second, State Farm contends that the alleged error in the scope
    of cross-examination was exacerbated by the fact that Plaintiffs’ lawyer highlighted the
    testimony in his closing argument. State Farm cites the following excerpt from the closing
    argument:
    Now, we have some additional evidence to compare these
    stories to. There were six people at this collision site that saw
    everything. There was Jake Pravongviengkham, Jessica Huyn,
    and Vuthy Srey, who were the three passengers in the Kheiv
    vehicle. That’s three. There was Mr. Kheiv himself. That’s
    four. Connie Taylor, five; Emil Sadowski, six; and Kate
    Sadowski, seven. There’s actually seven people. So the three
    passengers all sued Chamroeun Kheiv and accused him of
    causing the collision.
    State Farm contends that of these “seven witnesses,” only two, i.e., Ms. Taylor and Mr.
    Kheiv, actually testified at the trial. As noted above, Ms. Taylor and Mr. Kheiv gave
    contradictory accounts of how the accident occurred. By not omitting the questioning and
    argument concerning the Kheiv passengers’ complaint, State Farm contends that the trial
    court allowed Plaintiffs to “improperly argue to the jury that there was a weight of evidence
    against Mr. Kheiv which included the passengers in his own vehicle. . . .”
    We note at the outset that State Farm did not make a contemporaneous objection
    during Plaintiffs’ closing argument. The best practice would have been for State Farm to
    object promptly and to request a curative instruction from the trial court. Morgan v. Duffy,
    
    30 S.W. 735
    , 736 (Tenn. 1895); Lee v. Lee, 
    719 S.W.2d 295
    , 299 (Tenn. Ct. App.1986).
    However, even if we allow, arguendo, that State Farm preserved its issue concerning the
    scope of the Plaintiffs’ closing, it is well settled that in reviewing a trial court’s decision with
    respect to arguments made by counsel, including those made in closing argument, this Court
    applies an abuse of discretion standard. Perkins v. Sadler, 
    826 S.W.2d 439
    , 442 (Tenn. Ct.
    App. 1991). Likewise, concerning the scope of cross-examination, we note that the
    admissibility of evidence also rests within the sound discretion of the trial court. Otis v.
    Cambridge Mut. Fire Ins. Co., 
    850 S.W.2d 439
    , 442 (Tenn.1992) Accordingly, we review
    the trial court’s decision under an abuse of discretion standard. State Dep't of Transp. v.
    Veglio, 
    786 S.W.2d 944
    , 948 (Tenn. Ct. App.1989). The abuse of discretion standard requires
    us to consider “(1) whether the decision has a sufficient evidentiary foundation, (2) whether
    the trial court correctly identified and properly applied the appropriate legal principles, and
    (3) whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn
    18
    v. Kaatrude, 
    21 S.W.3d 244
    , 248 (Tenn. Ct. App. 2000). “While we will set aside a
    discretionary decision if it rests on an inadequate evidentiary foundation or if it is contrary
    to the governing law, we will not substitute our judgment for that of the trial court merely
    because we might have chosen another alternative.” 
    Id. If this
    Court finds error, we will only
    set aside the final judgment upon a finding that the error “more probably than not affected
    the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).
    Turning back to Plaintiffs’ cross-examination of Mr. Kheiv, generally, “[a] witness
    may be cross-examined on any matter relevant to any issue in the case, including credibility.
    . . .” Tenn. R. Evid. 611. This rule “retains the English rule permitting wide-open scope of
    cross-examination historically favored in Tennessee.” Tenn. R. Evid. 611 advisory
    commission comment (citing Sands v. Southern Railway Co., 
    64 S.W. 478
    (Tenn. 1901)).
    Accordingly, “[i]t is well established that wide latitude should be afforded on
    cross-examination.” Steele v. Ft. Sanders Anesthesia Group, P.C., 
    897 S.W.2d 270
    , 278
    (Tenn. Ct. App. 1994). “Furthermore, a witness may be cross-examined to show possible
    prejudice or bias, and this right should be limited only upon a showing of the most
    extraordinary circumstances.” 
    Id. (citing Phillips
    v. Pitts, 
    602 S.W.2d 246
    , 249 (Tenn. Ct.
    App. 1980)).
    As noted above, State Farm argues that the Kheiv passengers’ statements were
    hearsay, or, alternatively, that the statements were offered as improper “character evidence,”
    in violation of Tennessee Rule of Evidence 404, which provides, in relevant part, that
    “[e]vidence of a person’s character or trait of character is not admissible for the purpose of
    proving action in conformity therewith on a particular occasion. . . .” As set out in full
    context above, Mr. Bailey defended his cross-examination of Mr. Kheiv, stating that the
    questions concerning Mr. Kheiv’s passengers’ complaint were “not being introduced for the
    truth of the matter asserted. This is being introduced to show that other people obviously had
    a different perception of this than he did.” Mr. Kheiv’s testimony contradicted Ms. Taylor’s
    and Mr. Miller’s. Accordingly, Plaintiffs should have been allowed to impeach Mr. Kheiv’s
    credibility on cross examination. Furthermore, our review of the transcript of the trial
    indicates that State Farm’s lawyer was, in fact, the first to bring the passengers’ statements
    to the attention of the jury. During opening argument, State Farm’s lawyer stated: “[Kheiv’s]
    in the middle of those three eastbound lanes. That’s what he will say, that’s what his three
    friends will say. . . .” Later, when State Farm’s lawyer was cross-examining Plaintiffs’
    expert, Mr. Miller, he brought up the Kheiv passengers’ deposition testimonies, saying: “[I]f
    the accident had instead happened–not in the center, in the middle of those three eastbound
    lanes as the accident report shows and as the witnesses in the Kheiv vehicle say. . . ;” and “I
    want you to confirm for the jury that when you read the depositions of [the three Kheiv
    passengers] that’s what they all said is this accident happened in the middle of those three
    center lanes.” Respectfully, State Farm cannot have its proverbial cake and eat it too.
    19
    Because State Farm opened the door to the Kheiv passengers’ observations, we cannot
    conclude that the trial court erred in declining to shut that same door on the Plaintiffs.
    Regardless, State Farm has not shown that the disputed line of questioning “more probably
    than not affected the judgment or would result in prejudice to the judicial process.” Tenn.
    R. App. P. 36(b).
    C. Mistrial
    In its third issue, State Farm argues that Plaintiffs’ lawyer offered an improper
    argument and injected the issue of insurance into the case by making the following
    statements during his closing argument:
    Another thing I’m concerned about is if anybody says, “Oh,
    well, Mr. Kheiv doesn’t look to me like a very rich guy. He
    probably doesn’t have any money. Maybe we should cut him
    some slack.” Then I hope the rest of you will say, “Wait a
    minute. That’s not a factor for us to consider. We are not
    supposed to guess whether he does or doesn’t have money or
    where the money might come from or anything like that.”
    Following this statement, State Farm objected and the following transpired outside the
    hearing of the jury:
    MR. MOORE: I object and move for a mistrial. That was an
    obvious veiled reference to insurance for which there can be no
    excuse. I saw Your Honor’s eyebrows go up just as mine did.
    *                                  *                      *
    MR. BAILEY: That’s ridiculous. I’m telling the jury they are
    not supposed to even think about that subject.
    MR. MOORE: By bringing it up?
    MR. BAILEY: It’s a correct statement of the law.
    THE COURT: By saying don’t be concerned about where it
    comes from?
    MR. BAILEY: That’s right.
    20
    MR. MOORE: I ask for a mistrial.
    THE COURT: Stay away from that altogether, Mr. Bailey. That
    could mean Mr. Moore or family members, but you are getting
    dangerously close, so leave that subject alone.
    MR. BAILEY: All right.
    THE COURT: Your motion is denied.
    Generally speaking, the more modern cases recognize that before the “liability
    insurance” error will warrant reversal, there must be a showing that the injection of liability
    insurance into the case was an “error involving a substantial right [that] more probably than
    not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
    P. 36(b); Terry v. Plateau Electric Coop., 
    825 S.W.2d 418
    , 422-23 (Tenn. Ct. App.1991).
    Some of the earlier cases analyzed such an error in the context of the so-called “harmless
    error” statute, last codified at Tennessee Code Annotated Section 27-1-117.6 See e.g., East
    Tennessee Natural Gas Co. et al. v. Peltz, 
    270 S.W.2d 591
    , 609 (Tenn. Ct. App.1954).
    In arguing that Plaintiffs’ lawyer’s statement that the jury should not be concerned
    with “where the money might come from” was improper because it was “a deliberate attempt
    to convey the fact of insurance to the jury,” State Farm compares the statements at issue here
    to those made by a lawyer in the case of Lovin v. Stanley, 
    493 S.W.2d 725
    (Tenn. Ct. App.
    1973). In Lovin, this Court reversed the jury’s verdict and remanded the case for new trial
    based, inter alia, upon the following statements made by counsel:
    You do not have to concern yourself one bit with the source of
    whatever you deem is reasonable and proper in this case. I
    normally wouldn’t or couldn’t say that and would be ashamed
    to, but now I have to. She’s in good hands, gentlemen, is all I
    can say. I am ashamed to have to bring it to you in this way.
    
    Id. at 726-27
    (emphasis added). Although State Farm asserts that Mr. Bailey’s statement is
    “virtually identical” to the one that required reversal of the jury’s verdict in Lovin, we
    conclude that Mr. Bailey’s statement, although (as the trial court correctly noted) perhaps
    burgeoned on inappropriate argument, did not rise to the level of the statements made in
    Lovin. In Lovin, the lawyer not only argued that the jury should not concern itself with “the
    6
    Repealed by Chapter 449 of the Public Acts of 1981.
    21
    source” of payment on its verdict, but the lawyer also went so far as to make an overt
    reference to a popular Allstate slogan, i.e., “You’re in Good Hands with Allstate.” The
    Lovin Court reasoned that the statement “She’s in good hands” was a direct reference to
    insurance and, as such, could lead “most jurors [to] equate counsel’s statement to defendants’
    having insurance coverage” because the advertising slogan was universally known. 
    Id. at 727.
    Because the gravamen of our holding in Lovin was the direct reference to the insurance
    company’s advertising slogan, we cannot, as State Farm argues, stretch our holding in that
    case to cover those situations, such as the one at bar, where a lawyer tells the jury not to be
    concerned with the source of any payments. While such tactic may fall in the gray area of
    what is appropriate argument, in order to warrant a mistrial, there would have to be some
    evidence that Mr. Bailey’s statements were willfully made for the purpose of improperly
    influencing the jury. 
    Id. State Farm
    also cites the case of Woods v. Meachum, 
    333 S.W.2d 567
    (Tenn. Ct.
    App. 1960), where this Court remanded the case for a retrial. In Woods, the lawyer
    inappropriately asked the defendant: “If this jury should give a $10,000 verdict against you,
    not one penny of it would come out of your pocket, would it?” Although this statement does
    improperly suggest the existence of insurance, our holding in Woods was also based on the
    fact that the statement suggested the amount the jury should award. 
    Id. at 577.
    Furthermore,
    in Woods, the lawyer repeated the statement after the trial court ruled that it was improper.
    
    Id. It was,
    therefore, the culmination of several errors that led us to order a new trial in
    Woods. In this regard, the instant case is distinguishable. Here, Mr. Bailey’s statement does
    not specifically mention or overtly allude to insurance; he states that the jury should not
    worry about the source of payment. He does not, however, go so far as to indicate that the
    payment would come from insurance proceeds. Furthermore, after the trial court cautioned
    Mr. Bailey that he was proceeding dangerously close to the insurance topic, he immediately
    changed his course and did not attempt to continue the line of argument. In Lasater Lumber
    Co. v. Harding, 
    189 S.W.2d 583
    (Tenn. Ct. App. 1944), this Court noted:
    The tendency of the courts is towards a more liberal rule in
    refusing reversals upon the ground that it appears from the
    evidence that the defendant carries indemnity insurance in such
    cases, especially where it appears that no improper practice has
    been resorted to inject the subject into the record. And this is as
    it should be, in view of the fact that the custom of automobile
    owners in carrying liability insurance against loss or damage has
    become so general that jurors must be assumed to be cognizant
    of the fact.
    
    Id. at 588
    (internal citations omitted). Likewise, in the case of Stroud v. Seaton, No.
    22
    03A01-9802-CV-00060, 
    1998 WL 641923
    (Tenn. Ct. App. Sept. 18, 1998), this Court
    explained:
    It is error for a witness or an attorney to mention–in the presence
    of the jury–liability insurance during the trial of a motor vehicle,
    negligence case such as the one now before us. Lovin v. Stanley,
    
    493 S.W.2d 725
    , 727-28 (Tenn. Ct. App.1973). See also Rule
    411, Tenn. R. Evid. Our cases have emphasized that a party’s
    deliberate attempt to interject such evidence, especially if
    persistently pursued, is more apt to lead to reversal than is
    an inadvertent reference to insurance. See, e.g., Potts v.
    Leigh, 
    15 Tenn. App. 1
    , 5 (1931). In any event, it is clear from
    the cases that the issue of whether a reference to insurance is
    egregious enough to warrant a new trial is a matter that
    addresses itself to the sound discretion of the trial court, and that
    such discretion will be disturbed on appeal “only in exceptional
    cases.” Klein v. Elliott, 
    59 Tenn. App. 1
    , 
    436 S.W.2d 867
    , 880
    (Tenn. Ct. App.1968). See also Prewitt-Spurr Mfg. Co. v.
    Woodall, 
    90 S.W.2d 623
    , 624 (Tenn.1905).
    
    Id. at *2
    (emphasis added). Here, Mr. Bailey’s statement is not sufficiently egregious and
    his pursuit of the insurance line of argument is not so overt as to rise to the level of the
    “exceptional cases” that warrant retrial. Although the trial court was correct to caution Mr.
    Bailey to immediately change the course of his argument, we cannot conclude that the denial
    of State Farm’s motion for mistrial on this issue constitutes an abuse of discretion.
    D.    Medical Records
    During Dr. Mohan’s testimony, Plaintiffs introduced excerpted medical records from
    the emergency room portion of Mr. Sadowski’s hospital bill. One of the portions of the bill
    that was redacted was a handwritten notation concerning a statement that State Farm
    attributed to Mr. Sadowski, wherein he allegedly stated that “the reason he was there [i.e.,
    in the emergency room] was failure to yield, hit by a car.” State Farm’s lawyer asked Dr.
    Mohan, on cross-examination:
    Q. Now, when you saw Mr. Sadowski you were able to speak
    with him and he was able to speak with you?
    A. That’s right.
    23
    Q. You were also able to read what had been written in the
    records before you saw him?
    A. Yes.
    Q. Do you recollect reading out of the emergency room that he
    told them–
    At this point, Plaintiff’s lawyer objected and argued (outside the hearing of the jury) that the
    disputed notation on Mr. Sadowski’s medical record was “double hearsay” in that “we don’t
    know who said it. We don’t know who it was said to.” During further discussion at the
    bench, Plaintiffs’ lawyer argued that “[the disputed notation] doesn’t even say who failed to
    yield . . . [and] it would be unduly prejudicial to us to put this in here because it is not even
    clear who it is referring to.” In addition, Plaintiffs’ lawyer noted that “there is nothing about
    failure to yield, hit by a car that would in any way contribute to [Dr. Mohan’s] treatment of
    Mr. Sadowski.” At this point, the trial court allowed State Farm’s lawyer to voir dire Dr.
    Mohan to establish that the disputed record was kept in the ordinary course of business and
    that the information contained therein was “recorded at the time [Mr. Sadowski] presented
    to the emergency room.” Dr. Mohan also established that “the people who wrote down that
    information. . . were under a business duty to record the information truthfully and
    accurately.” Thereafter, Plaintiffs’ lawyer was given the opportunity to question Dr. Mohan.
    During that portion of the voir dire, Dr. Mohan stated that he did not rely on the statement
    “hit by a car, failure to yield,” in treating Mr. Sadowski. Furthermore, Dr. Mohan could not
    definitively state who made the statement, or who wrote it down, although he assumed it was
    written by an emergency room nurse during Mr. Sadowski’s triage.
    In overruling State Farm’s objection, the trial court stated, in relevant part:
    I have looked at the rules again, the Rules of Evidence and the
    document itself. Based upon what I have read from the
    document and the rules, Mr. Moore, I am going to deny your
    right to introduce this document on the following basis. Number
    one, I have heard that there was no reliance on this document by
    [Dr.] Mohan. Two, it was not used as an exception. It could be
    established as a business record exception, but not as to the
    admission statement contained in the record. And in this
    Court’s mind you have not demonstrated a second exception to
    the hearsay rule to allow this statement. It is not medical
    diagnosis of treatment. The Court did not view this as an
    admission by party opponent for admission against interest.
    24
    Further, I did not look at this and view this as some prior
    inconsistent statement as it was a statement not signed or
    recorded by a physician.
    Regarding relevance, Tennessee Rule of Evidence 401 provides:
    Rule 401. Definition of “relevant evidence.”—“Relevant
    evidence” means evidence having any tendency to make the
    existence of any fact that is of consequence to the determination
    of the action more probable or less probable than it would be
    without the evidence.
    Our Supreme Court recently explained:
    Relevant evidence is admissible, and irrelevant evidence is not,
    unless excepted by the state and federal constitutions, the
    Tennessee Rules of Evidence, or other rules or laws generally
    applicable to the courts. Tenn. R. Evid. 402. Relevant evidence
    is defined as “evidence having any tendency to make the
    existence of any fact that is of consequence to the determination
    of the action more probable or less probable than it would be
    without the evidence .” Tenn. R. Evid. 401. The admission of
    evidence is left to “the sound discretion of the trial judge,” Otis
    v. Cambridge Mut. Fire Ins. Co., 
    850 S.W.2d 439
    , 442
    (Tenn.1992), and “[r]elevancy is always a judicial question to be
    determined according to the issue which is to be tried.”
    Randolph v. State, 
    570 S.W.2d 869
    , 872 (Tenn. Crim.
    App.1978) (quoting Ellison v. State, 
    549 S.W.2d 691
    , 696
    (Tenn. Crim. App.1976)). We review a trial court's admission of
    evidence under an abuse of discretion standard and will reverse
    the decision to admit evidence only if “the court applied an
    incorrect legal standard, or reached a decision which is against
    logic or reasoning” and admission of the evidence “caused an
    injustice to the party complaining.” State v. Gilliland, 
    22 S.W.3d 266
    , 270 (Tenn.2000) (quoting State v. Shirley, 
    6 S.W.3d 243
    , 247 (Tenn.1999)) (internal quotation marks
    omitted).
    In re Estate of Smallman, 
    398 S.W.3d 134
    , 149 (Tenn. 2013). Evidence that is relevant can
    still be deemed inadmissible, however, if its probative value was substantially outweighed
    25
    by the danger of unfair prejudice. See Herbert by Herbert v. Brazeale, 
    902 S.W.2d 933
    , 938
    (Tenn. Ct. App.1995); Tenn. R. Evid. 403. Tennessee Rule of Evidence 403 provides:
    Exclusion of relevant evidence on grounds of prejudice,
    confusion, or waste of time.—Although relevant, evidence may
    be excluded if its probative value is substantially outweighed by
    the danger of unfair prejudice, confusion of the issues, or
    misleading the jury, or by considerations of undue delay, waste
    of time, or needless presentation of cumulative evidence.
    As noted above, Plaintiffs’ objection to the notation “failure to yield, hit by a car,”
    was made on grounds that the statement was inadmissible hearsay contained within a hearsay
    document. Specifically, Plaintiffs argue that “[b]ecause the . . . statement . . . is a statement
    made by some unknown person that was then recorded by a different unknown person who
    was treating Mr. Sadowski in the emergency room, this statement is double hearsay.”
    Tennessee Rule of Evidence 805 addresses hearsay within hearsay and provides: “Hearsay
    within hearsay is not excluded under the hearsay rule if each part of the combined statements
    conforms with an exception to the hearsay rule provided in these rules or otherwise by law.”
    In the first instance, medical records are not admissible unless they meet an
    enumerated exception under Tennessee Rule of Evidence 803. Tenn. R. Evid. 802; State v.
    Goldston, 
    29 S.W.3d 537
    , 540-41 (Tenn. Crim. App. 1999) (verifying that a hearsay
    exception was met before agreeing that medical records were properly admitted by the trial
    court). Here, State Farm makes three arguments. First, State Farm argues that because
    Plaintiffs were permitted to introduce excerpted portions of the medical records “from that
    very same emergency room presentation,” it should be allowed to introduce the portion of
    the record containing the failure to yield statement. We have reviewed the portion of the trial
    transcript where Plaintiffs were allowed to introduce certain portions of Mr. Sadowski’s
    emergency room medical records, and there is no indication that State Farm lodged any
    objection to the Plaintiffs’ proffer of this evidence. Consequently, any issues regarding the
    portion of the medical records that were allowed into evidence are waived. Wright v. United
    Servs. Auto. Ass'n, 
    789 S.W.2d 911
    , 914 (Tenn. Ct. App.1990). Simply because certain
    portions of a hearsay document are allowed into evidence does not, ipso facto, mean that the
    entire document will qualify for admission under the Tennessee Rules of Evidence, see
    
    discussion supra
    .
    State Farm next contends that the disputed portion of Mr. Sadowski’s record should
    come into evidence as an exception to the hearsay rule under Tennessee Rule of Evidence
    803(4). The Rule provides:
    Statements for Purposes of Medical Diagnosis and
    26
    Treatment. Statements made for purposes of medical diagnosis
    and treatment describing medical history; past or present
    symptoms, pain, or sensations; or the inception or general
    character of the cause or external source thereof insofar as
    reasonably pertinent to diagnosis and treatment.
    The rationale for this exception to the hearsay rule is that persons who are seeking medical
    diagnosis and treatment will make reliable statements to assure proper medical care. State
    v. Livingston, 
    907 S.W.2d 392
    , 396 (Tenn. 1995).
    As set out in full context above, Dr. Mohan established that he did not rely on the
    statement “failure to yield, hit by a car” in diagnosing or treating Mr. Sadowski. Specifically,
    Dr. Mohan testified: “I don’t care what they say. For treating this is not an important part of
    information that this accident happened because of failure to yield or red light or green light.”
    Furthermore, there was no evidence that any other physician, nurse, or medical employee
    relied on this statement in treating Mr. Sadowski. In this regard, the instant case is similar
    to State v. Lynn, 
    924 S.W.2d 892
    (Tenn. 1996). In Lynn, our Supreme Court noted that a
    statement in a medical record that the patient had been hit with a baseball bat was hearsay
    by itself and could be admitted only if a hearsay exception existed. 
    Id. at 898.
    In Lynn, the
    proponent of the evidence argued that the statement that the patient had been hit by a baseball
    bat was admissible under Tennessee Rule of Evidence 803(4) as the statement was arguably
    made for purposes of medical diagnosis and treatment. The Supreme Court noted:
    The statements are admissible, however, only if they are
    reasonably pertinent to both diagnosis and treatment. In this
    instance, the state's expert witness, a neurosurgeon, testified
    that, for purposes of treatment, it made no difference whether
    the victim was hit with a baseball bat or a pool cue. This opinion
    contradicted that contained in the paramedic report which was
    admitted over objection. Upon retrial, the trial judge should
    carefully consider whether the statement in the paramedic's
    report satisfies the 803(4) requirements.
    
    Id. at 898
    (internal citation omitted). Dr. Mahon’s testimony that he did not rely on the
    disputed statement in either his diagnosis or treatment of Mr. Sadowski, coupled with the
    lack of any evidence that other medical personnel relied on the statement, precludes the
    operation of Tennessee Rule of Evidence 803(4) in this case.
    Alternatively, State Farm argues that the medical record should come into evidence
    under the exception outlined at Tennessee Rule of Evidence 803(6), which provides:
    27
    Records of Regularly Conducted Activity. A memorandum,
    report, record, or data compilation, in any form, of acts, events,
    conditions, opinions, or diagnoses made at or near the time by
    or from information transmitted by a person with knowledge and
    a business duty to record or transmit if kept in the course of a
    regularly conducted business activity and if it was the regular
    practice of that business activity to make the memorandum,
    report, record or data compilation, all as shown by the testimony
    of the custodian or other qualified witness or by certification
    that complies with Rule 902(11) or a statute permitting
    certification, unless the source of information or the method or
    circumstances of preparation indicate lack of trustworthiness.
    The term “business” as used in this paragraph includes business,
    institution, profession, occupation, and calling of every kind,
    whether or not conducted for profit.
    As noted above, Dr. Mahon testified that the disputed emergency room record was
    “recorded at the time [Mr. Sadowski] presented to the emergency room.” Dr. Mohan also
    established that “the people who wrote down that information. . . were under a business duty
    to record the information truthfully and accurately.” This testimony may establish the medical
    record itself as a business record that would qualify for admission under Rule 803(6).
    However, recall that not only the record itself, but also the disputed statement “failure to
    yield, hit by a car” must fall within a hearsay exception in order to come into evidence over
    Plaintiffs’ objection. Dr. Mahon testified that he did not make the notation on the medical
    record; he further explained that he did not know who made the notation. In short, the source
    of the notation was never established.
    In addition, we note that the statement “failure to yield, hit by a car,” does not answer
    the question of who failed to yield. Accordingly, its probative value is suspect. For this
    reason, and for those enumerated above, we conclude that the disputed statement could
    confuse, mislead, or prejudice the jury in violation of Tennessee Rule of Evidence 403,
    supra. Conley v. Life Care Centers of America, Inc., 
    236 S.W.3d 713
    , 740-41 (Tenn. Ct.
    App. 2007) (affirming the trial court’s exclusion of statements in a hospital record regarding
    patient’s combative behavior where the source of that information was not known because
    it was unreliable hearsay and more prejudicial than probative under Tennessee Rule of
    Evidence 403). Therefore, we cannot conclude that the trial court abused its discretion in
    declining to allow the portion of the medical records containing the statement “failure to
    yield, hit by a car.”
    28
    E. Lawyer Misconduct
    State Farm further submits that it is entitled to a new trial because the jury was guided
    by “bias, passion, and prejudice.” Specifically, State Farm asserts that Plaintiffs’ lawyer was
    guilty of acts of wrongdoing including: (1) displaying photographs of Mrs. Sadowski in her
    hospital bed without offering the photographs into evidence; (2) displaying selected medical
    records with key words highlighted without offering the records into evidence; and (3) telling
    the jury that it should “send through your verdict a message” during his closing argument.
    It is well settled that “[m]isconduct by an attorney that results in prejudice may serve as a
    basis for new trial. The burden of showing prejudice rests with the party seeking the new
    trial, and [trial courts] have broad discretion in deciding whether to grant a motion for new
    trial.” Maday v. Public Libraries of Saginaw, 
    480 F.3d 815
    , 819 (6th Cir. 2007) (citations
    omitted). To be entitled to a new trial on the basis that the trial was unfair, the moving party
    must show that the jury was influenced by prejudice or bias. Holmes v. City of Massillon,
    Ohio, 
    78 F.3d 1041
    , 1045 (6th Cir.1996). This Court must “determine ‘whether there is a
    reasonable probability that the verdict of the jury has been influenced by improper conduct.’”
    
    Maday, 480 F.3d at 819
    (citations omitted). The reviewing court must consider the totality
    of the circumstances, considering the number of comments, the nature of the comments,
    possible relevance to the issues, and the manner in which the parties and the court treated the
    comments. 
    Id. 1. Photos
    of Kathryn Sadowski
    Important to this issue is the fact that Brooks and David Monypeny, as Co-Executors
    of Mrs. Sadowski’s estate, were represented by R. Sadler Bailey at trial. Mr. Sadowski was
    represented by Donald Capparella. During his opening argument, Mr. Bailey allegedly
    displayed photographs of Mrs. Sadowski in extremis, lying in her hospital bed. State Farm’s
    lawyer lodged a timely objection to these photos, arguing that they had not been produced
    during discovery and that the photos were outside the court’s pre-trial instruction limiting the
    photographic evidence that could be presented to the jury. Although Mr. Bailey initially
    insisted that he had produced the photos in response to State Farm’s requests for discovery,
    he later clarified that his office never received a request from State Farm concerning the
    disputed photographs. It was later discovered that State Farm had propounded this discovery
    request only on Mr. Caparella and not on Mr. Bailey. Accordingly, we cannot conclude that
    the trial court erred in denying State Farm’s motion for mistrial on grounds of displaying the
    photographs.
    Furthermore, we note that the offending photographs are not contained in our
    appellate record, as no offer of proof was made following the objection. The Tennessee
    Rules of Appellate Procedure require the appellant to prepare the record on appeal so that it
    29
    conveys a fair, accurate, and complete account of what transpired with respect to those issues
    that are the bases of appeal. Tenn. R. App. P. 24(b). Furthermore, “it is essential that a proper
    offer of proof be made in order that the appellate court can determine whether or not
    [inclusion or exclusion of evidence] was reversible.” Harwell v. Walton, 
    820 S.W.2d 116
    ,
    118 (Tenn. Ct. App. 1991) (citing State v. Goad, 
    707 S.W.2d 846
    , 853 (Tenn. 1986)). We
    will not reverse a trial court’s evidentiary ruling if the appellant fails to make an offer of
    proof regarding the substance of the evidence. Dickey v. McCord, 
    63 S.W.3d 714
    (Tenn. Ct.
    App. 2001); Anderson v. American Limestone, Co., 
    168 S.W.3d 757
    (Tenn. Ct. App. 2005).
    Therefore, in the absence of these photographs, this Court cannot review them so as to make
    an independent assessment of their potential impact on the jury. Accordingly, we defer to
    the trial court’s decision on this issue.
    2. Kathryn Sadowski’s Medical Records
    State Farm also contends that it is entitled to a new trial on the grounds that Mr. Bailey
    displayed highlighted portions of Mrs. Sadowski’s medical records in an attempt to appeal
    to the jury’s emotions. Again, we note that the offending portions of Mrs. Sadowski’s
    medical records were not made part of our record on appeal so as to allow us any meaningful
    review. However, more problematic is the fact that State Farm failed to lodge a timely
    objection to the highlighted records. Any issues relating to the admission of the highlighted
    records are waived because State Farm did not object when the documents were shown to
    the jury. Tenn. R. App. P. 36(a) (providing that failure to contemporaneously object to the
    admission of inadmissible evidence results in waiver of the issue on appeal).
    3. Closing Argument Comments
    During closing argument, Mr. Bailey made the following statements:
    Juries are called sometimes the conscience of the
    community. You set the standard for what is safe, what we will
    tolerate here in Shelby County, Tennessee, whether or not it’s
    okay in Shelby County, Tennessee, to drive like Mr. Kheiv did,
    because if we say that’s okay, then everybody is in danger,
    everybody.
    I would hope and I ask this jury to send through your
    verdict a message that we don’t tolerate that kind of driving.
    We are not going to stand for it, and if you’re going to do that,
    you are going to be held accountable.
    State Farm contends that the instruction to “send through your verdict a message” constitutes
    30
    reversible error and requires remand for re-trial. We reiterate that, “[i]n general, the control
    over the argument of counsel resides with the trial court, and the trial court has broad
    discretion as to what shall and shall not be permitted in argument.” Davis v. Hall, 
    920 S.W.2d 213
    , 217 (Tenn. Ct. App.1995). In reviewing a trial court’s action in Davis, this
    Court stated that it:
    generally will not interfere with the discretionary action of a trial
    court in refusing to grant a mistrial or a new trial for misconduct
    of counsel in argument unless the argument is clearly
    unwarranted and made purely for the purpose of appealing to
    passion, prejudices and sentiment which cannot be removed by
    sustaining the objection of opposing counsel.
    
    Id. (citing Perkins
    v. Sadler, 
    826 S.W.2d 439
    , 442 (Tenn. Ct. App.1991)).
    We note that State Farm did not lodge a contemporaneous objection to this statement,
    but waited until Mr. Bailey, immediately after the foregoing comments, made an alleged
    reference to insurance coverage, see 
    discussion supra
    . In this regard, the instant case is
    similar to Smartt v. NHC Healthcare/McMinnville, LLC, et al., No. M2007-02026-COA-
    R3-CV, 
    2009 WL 482475
    (Tenn. Ct. App. Feb. 24, 2009), on which State Farm relies in its
    brief. In Smartt, this Court held that the trial court did not err in finding that the “argument
    was within the law provided in the jury instructions and defense counsel made no objection
    at the time the argument was made.” 
    Id. at *19.
    Likewise, in the instant case, the trial court
    properly instructed the jury that “any question, objection, statement, or arguments made by
    the lawyers during the trial are not evidence in the case.” Furthermore, the trial court
    cautioned the jury “not [to] be influenced by sympathy, prejudice, or passion.” In light of
    these instructions, and because there was no specific contemporaneous objection, we cannot
    conclude that the trial court abused its discretion in declining to grant State Farm’s motion
    for new trial on this ground.
    F. Jury Instructions
    In its sixth issue, State Farm asserts that the trial court erred in instructing the jury on
    the statute governing the appropriate conditions for passing on the right. The statute,
    Tennessee Code Annotated Section 55-8-118 provides:
    § 55-8-118. Overtaking and passing on right
    (a) The driver of a vehicle may overtake and pass
    upon the right of another vehicle only under the
    31
    following conditions:
    (1) When the vehicle overtaken is making or
    about to make a left turn;
    (2) Upon a street or highway with unobstructed
    pavement not occupied by parked vehicles of
    sufficient width for two (2) or more lines of
    moving vehicles in each direction; and
    (3) Upon a one-way street, or upon any roadway
    on which traffic is restricted to one (1) direction
    of movement, where the roadway is free from
    obstructions and of sufficient width for two (2) or
    more lines of moving vehicles.
    (b) The driver of a vehicle may overtake and pass
    another vehicle upon the right only under
    conditions permitting that movement in safety. In
    no event shall the movement be made by driving
    off the pavement or main-traveled portion of the
    roadway.
    It is the trial court's duty to instruct the jury on “every factual issue and theory of the case
    presented by the parties.” Ricketts v. Robinson, 
    169 S.W.3d 642
    , 646 (Tenn. Ct. App. 2004)
    (citing Cole v. Woods, 
    548 S.W.2d 640
    , 642 (Tenn.1977)). This Court reviews the jury
    charge in its entirety to determine whether the trial judge committed reversible error. Jury
    instructions are not measured against the standard of perfection. The charge will not be
    invalidated if it “fairly defines the legal issues involved in the case and does not mislead the
    jury.” 
    Id. Furthermore, a
    particular instruction must be considered in the context of the entire
    charge. 
    Id. (citing City
    of Johnson City v. Outdoor West, Inc., 
    947 S.W.2d 855
    , 858 (Tenn.
    Ct. App.1996)). Whether a jury instruction is erroneous is a question of law and is, therefore,
    subject to de novo review with no presumption of correctness. Solomon v. First Am.
    National Bank of Nashville, 
    774 S.W.2d 935
    , 940 (Tenn. Ct. App.1989). The legitimacy of
    a jury’s verdict is dependent on the accuracy of the trial court’s instructions, which are the
    sole source of the legal principles required for the jury's deliberations. Therefore, a trial court
    is under a duty to impart “substantially accurate instructions concerning the law applicable
    to the matters at issue.” Hensley v. CSX Transp., Inc., 
    310 S.W.3d 824
    , 833 (Tenn. Ct. App.
    2009) (quoting Bara v. Clarksville Mem'l Health Sys., Inc., 
    104 S.W.3d 1
    , 3-4 (Tenn. Ct.
    App. 2002)). When considering whether a trial court committed prejudicial error in a jury
    32
    instruction, it is our duty to review the charge in its entirety and to consider it as a whole. The
    instruction will not be invalidated if it “fairly defines the legal issues involved in the case and
    does not mislead the jury.” Otis v. Cambridge Mut. Fire Ins. Co., 
    850 S.W.2d 439
    , 446
    (Tenn.1992). The judgment of a trial court will not be set aside based on an erroneous jury
    instruction unless it appears that the erroneous instruction more probably than not affected
    the judgment of the jury. Tenn. R. App. P. 36(b); Gorman v. Earhart, 
    876 S.W.2d 832
    , 836
    (Tenn.1994).
    State Farm argues that the jury instruction based on Tennessee Code Annotated
    Section 55-8-118 has “no applicability in the case before the court.” Despite State Farm’s
    argument, the testimony at trial indicated that the car driven by Mr. Kheiv passed Connie
    Taylor’s vehicle on the right at a high rate of speed before colliding with the Sadowskis’
    vehicle. Because Ms. Taylor’s version of events encapsulated Plaintiffs’ theory of the case,
    Plaintiffs suggested that the trial court only instruct the jury concerning subsection (b) of the
    statute, i.e., “[t]he driver of a vehicle may overtake and pass another vehicle upon the right
    only under conditions permitting that movement in safety.” When asked whether he agreed
    with the use of the truncated statute, State Farm’s lawyer stated: “I have no objection to the
    plaintiff’s proposed instruction other than. . . [i]t is an incomplete excerpted statement of the
    law.” From our reading of the jury charge conference, it appears that State Farm expressed
    no general disagreement with the Tennessee Code Annotated Section 55-8-118 instruction
    except that the entire statute was not proposed by the Plaintiffs. In light of State Farm’s
    objection, the trial court agreed to instruct the jury with the entire statute. The trial court then
    asked whether the following instruction was acceptable: “Number 10 I’m going to put at the
    bottom, as I indicated, overtaking and passing on the right-hand side and I’m going to read
    the entire statute, 55-8-118.” State Farm’s lawyer responded “No objection.” As noted
    above, “a party who invites or waives error, or who fails to take reasonable steps to cure an
    error, is not entitled to relief on appeal.” Tenn. R. App. P. 36(a). However, even if we
    assume, arguendo, that State Farm has preserved this issue for appeal, we nonetheless
    conclude that the trial court properly instructed the jury on Tennessee Code Annotated
    Section 55-8-118 because part of Plaintiffs’ theory of the case was that Mr. Kheiv passed Ms.
    Taylor’s vehicle in the right lane of Highway 64 and in an unsafe manner.
    H. Ave Maria Medical Expenses
    In its next issue, State Farm asserts that the expenses Mr. Sadowski incurred for the
    services provided by the Ave Maria assisted living center were not properly before the jury
    because Plaintiffs failed to establish: (1) that the charges are “causally related to the
    automobile accident;” and (2) that the expenses are “consistent with the customary and
    prevailing charges in the community for the same or similar services.” It is well settled that
    in personal injury lawsuits, the plaintiff “bears the burden of proving that medical expenses
    33
    the plaintiff is seeking to recover are necessary and reasonable.” Borner v. Autry, 
    284 S.W.3d 216
    , 218 (Tenn. 2009).
    Turning to the record, as briefly discussed above, the evidence indicates that, prior to
    the accident, Mr. Sadowski was living independently. However, Mr. Sadowski’s treating
    physician, Dr. Sunita Jain, testified that after Mr. Sadowski left the Baptist Rehabilitation
    Center, he needed supervision:
    Q [to Dr. Jain]: You indicated in your note that Mr. Sadowski
    would be going to an assisted living facility?
    A. Yes.
    Q. And you referred to that earlier as Ave Maria?
    A. Yes, that’s the name of the assisted living facility.
    Q. Did you have an opinion as to whether it was necessary for
    Mr. Sadowski to be discharged to an assisted living facility?
    A. Well, as was indicated in the notes, we . . . reviewed [Mr.
    Sadowski’s] status both from a functional point of view and
    from a disposition point of view . . . and it was determined that
    Mr. Sadowski still required supervision at the time of the
    discharge, which meant either somebody would have to be with
    him available at home or he needed to be in a place where
    another person would be available to provide that supervision.
    *                               *                          *
    Q. Why was it that he could no longer go home?
    A. Looking at his functional status he still required supervision
    for all of those tasks and in order for him to be home by himself
    he would have needed to be at least modified independent level,
    which he was not.
    *                                   *                          *
    Q. What is your opinion about whether his need for this around-
    34
    the-clock supervision was related to the car collision?
    A. Again, based on our history, he was reported to be
    independent prior to the trauma and given the injuries and the
    pain and the range of motion that we saw in the hospital as well
    as the safety issues, that’s what determined the need for
    supervision.
    Q. When you say prior to the trauma do you mean prior to the
    car collision that was reported?
    A. Yes.
    Q. Is this an opinion that you hold to a reasonable degree of
    medical certainty?
    A. Yes.
    We glean from State Farm’s argument that it is of the opinion that because of Mr. Sadowski’s
    advanced age and pre-existing conditions at the time of the accident, the requirement for
    assisted living was not causally related to the accident. We note the well-established
    principle that “a defendant takes a plaintiff as he finds him. The fact that a party is in a
    weakened condition at the time of the injury is not a causal defense available to the
    defendant.” Fuller v. Speight, 
    571 S.W.2d 840
    , 841 (Tenn. Ct. App. 1978). Regardless, from
    Dr. Jain’s testimony, a reasonable jury could conclude that the Ave Maria expenses were
    medically necessary and arose as a direct result of the accident.
    Beyond his initial need for assisted living, the record indicates that Mr. Sadowski
    continued to need assistance for the two years he remained in assisted living. Ave Maria
    Wellness Director Caralena Lawrence, who is a licensed social worker, has worked at the
    Ave Maria facility for more than five years and oversees the day-to-day operations. Ms.
    Lawrence testified that after arriving at Ave Maria, Mr. Sadowski did not improve. Rather,
    he continued to need assistance with maintaining his living space, meal preparation,
    administering his medication, and his personal hygiene. Ms. Lawrence further testified that
    Mr. Sadowski’s cognition continued to decline after he came to the facility. She noted that
    he continued to have difficulty with his “orientation,” especially concerning dates and time,
    and that his short-term memory was affected. The record also indicates that, following the
    accident and in light of the loss of his wife, Mr. Sadowski suffered from depression, which
    further impaired his ability to care for himself.
    35
    Relying on Garner v. Maxwell, 
    360 S.W.2d 64
    (Tenn. Ct. App. 1962), State Farm also
    contends that “[i]n order for medical expenses to be introduced into evidence, there must be
    testimony from a competent witness that the expenses are reasonable and necessary when
    compared to other facilities that offer similar services in the community.” 
    Id. at 68.
    The
    relevant holding in Garner is as follows:
    Defendants’ Assignment of Error VI complains of the
    ruling of the trial judge in allowing witness John W. Headrick,
    Office Manager of the Jackson-Madison County Hospital, to
    testify as to hospital and physical therapy bills incurred by
    plaintiff, without a showing that such medical expenses were
    necessary, and that charges therefor reasonable.
    The witness, Headrick, testified as to the reasonableness
    of the charges made by the hospital as compared to charges
    made by other hospitals in the general area. Also, Dr. Dodson
    testified that he treated plaintiff at the Jackson-Madison County
    General Hospital and ‘put him on physiotherapy to limber up his
    knee’, and Dowling testified, specifically, that the amount of his
    bill, $200.00, was reasonable. We think the testimony objected
    to was competent. At most, even if the testimony objected to
    were considered as having been improperly admitted, it would
    not justify a reversal of the cause, but only a remittitur.
    
    Id. at 167.
    Contrary to State Farm’s contention, Garner does not stand for the proposition
    that proof of medical expenses may only be admitted in a personal injury or wrongful death
    case when accompanied by proof that the charges are reasonable and necessary when
    compared to other similar facilities in the community. In Garner, we held that testimony
    from a hospital office manager that certain charges made by the hospital were reasonable as
    compared to charges made by other hospitals in the area was competent evidence and
    properly admitted. 
    Id. at 168-69.
    In addition, we held that testimony from the plaintiff’s
    treating physician that his own bill “was reasonable” was also competent and properly
    admitted evidence to show the reasonableness of plaintiff’s medical expenses. 
    Id. In short,
    Garner stands for the proposition that “in a personal injury action the reasonableness of a
    charge for medical or hospital services can be shown by testimony of a member of the
    nonmedical staff of the hospital in which the injured party was treated.” Id.; see also L.C.
    DiStasi, Jr., Annotation, Necessity and Sufficiency, in Personal Injury or Death Action, of
    Evidence as to Reasonableness of Amount Charged or Paid for Accrued Medical, Nursing,
    or Hospital Expenses. 
    12 A.L.R. 1347
    (2011).
    36
    Here, Ms. Lawrence testified, in relevant part, that Mr. Sadowski’s medical charges
    for his care at Ave Maria were reasonable:
    Q. Ms. Lawrence, you are familiar with the charges for Ave
    Maria, is that correct?
    A. Yes, I am . . . . I determine the level of care the person will
    [receive] and let the business office know . . . so she will know
    what to charge them.
    Q. Are the charges of Ave Maria for [Mr. Sadowski] living
    there, are they reasonable?
    A. Yes.
    Under the holding in Garner, Ms. Lawrence was qualified to give testimony regarding the
    reasonableness of Mr. Sadowski’s medical expenses. Furthermore, we note that State Farm
    did not make a contemporaneous objection to the foregoing portion of Ms. Lawrence’s
    testimony so as to dispute the foundation of her testimony. For these reasons, we cannot
    conclude that the trial court erred in denying re-trial on this issue.
    I. Excessive Jury Award
    In its next issue, State Farm argues that the jury’s award vis Mr. Sadowski is so
    excessive and beyond the range of reasonableness that the trial court should have granted
    State Farm remittitur of the entire award pursuant to Tennessee Code Annotated Section 20-
    10-102, which provides in pertinent part as follows:
    (a) In all jury trials had in civil actions, after the
    verdict has been rendered and on motion for a
    new trial, when the trial judge is of the opinion
    that the verdict in favor of a party should be
    reduced and a remittitur is suggested by the trial
    judge on that account, with the proviso that in
    case the party in whose favor the verdict has been
    rendered refuses to make the remittitur, a new
    trial will be awarded, the party in whose favor
    such verdict has been rendered may make such
    remittitur under protest, and appeal from the
    action of the trial judge to the court of appeals.
    37
    In denying this issue in its ruling on State Farm’s motion for new trial, the trial court, acting
    as thirteenth juror, approved the jury’s verdict and specifically found that the damages
    assessed were within the range of reasonableness. Where the trial court approves the verdict
    as thirteenth juror, the appellate courts maintain the statutory authority to suggest or require
    a remittitur on appeal. See Tenn. Code Ann. § 20-10-103(a). Specifically,
    if after the case was tried in the lower court with a jury and no
    remittitur was suggested by the trial judge, a remittitur is first
    suggested or required in the [C]ourt of [A]ppeals, on penalty
    of granting a new trial, then ... the party in whose favor the
    verdict or judgment has been rendered may make the remittitur
    under protest in the [C]ourt of [A]ppeals, and take the case, by
    application for permission to appeal, for review upon that point,
    to the [S]upreme [C]ourt.
    
    Id. (emphasis added);
    see Ellis v. White Freightliner Corp., 
    603 S.W.2d 125
    , 129 (Tenn.
    1980); Murphy Truck Lines v. Brown, 
    313 S.W.2d 440
    , 443 (Tenn. 1958).
    Where the trial judge has approved the verdict in its role as thirteenth juror—as the
    trial court did in this case—this Court’s review of the verdict and its ability to suggest a
    remittitur is limited to a review of the record to determine whether the verdict is supported
    by material evidence. Poole v. Kroger Co., 
    604 S.W.2d 52
    , 54 (Tenn.1980); see also
    Thrailkill v. Patterson, 
    879 S.W.2d 836
    , 841 (Tenn.1994); 
    Ellis, 603 S.W.2d at 129
    .
    Material evidence is “evidence material to the question in controversy, which must
    necessarily enter into the consideration of the controversy and by itself, or in connection with
    the other evidence, be determinative of the case.” Knoxville Traction Co. v. Brown, 
    89 S.W. 319
    , 321 (Tenn. 1905). An appellate court is required to take “the strongest legitimate view
    of all the evidence in favor of the verdict, assume the truth of all evidence that supports the
    verdict, allowing all reasonable inferences to sustain the verdict, and to discard all
    countervailing evidence.” Akers v. Prime Succession of Tenn., Inc., 
    387 S.W.3d 495
    , 501-
    502 (Tenn. 2012) (quoting Barkes v. River Park Hosp., Inc., 
    328 S.W.3d 829
    , 833 (Tenn.
    2010)). The material evidence analysis is very deferential to the award by the jury and the
    judgment of the trial court when it affirms the verdict as the thirteenth juror. See 
    Ellis, 603 S.W.2d at 129
    (“[W]hen the trial judge has approved the verdict, the review in the Court of
    Appeals is subject to the rule that if there is any material evidence to support the award, it
    should not be disturbed.”). “It matters not a whit where the weight or preponderance of the
    evidence lies under a material evidence review.” Hohenberg Bros. Co. v. Mo. Pac. R.R. Co.,
    
    586 S.W.2d 117
    , 119-20 (Tenn. Ct. App. 1979). “It is simply a search of the record to
    ascertain if material evidence is present to support the verdict.” 
    Id. Because the
    material
    evidence standard lies at the foundation of the right to trial by jury, if there is material
    38
    evidence to support a jury verdict, the appellate courts must affirm it. See Tenn. Const. art.
    I, § 6; Truan v. Smith, 
    578 S.W.2d 73
    , 74 (Tenn.1979) (quoting D.M. Rose & Co. v. Snyder,
    
    206 S.W.2d 897
    , 901 (Tenn. 1947)); see also Grandstaff v. Hawks, 
    36 S.W.3d 482
    , 497
    (Tenn. Ct. App. 2000) (“We have a duty to uphold a jury’s verdict whenever possible.”). In
    Meals ex rel. Meals v. Ford Motor Co., 
    417 S.W.3d 414
    (Tenn. 2013), our Supreme Court
    reiterated the role of the jury in assessing damages. Specifically, the Court held that the
    plaintiff (here, Mr. Sadowski) has the burden of “proving damages to such a degree that,
    while perhaps not mathematically precise, will allow the jury to make a reasoned assessment
    of the plaintiff’s injury and loss.” 
    Id. at 419.
    Then, “[w]e entrust the responsibility of
    resolving questions of disputed fact, including the assessment of damages, to the jury.” 
    Id. Turning to
    the record, as set out above, the jury awarded Mr. Sadowski the following
    damages:
    Physical Pain and Suffering–Past            $150,000
    Physical Pain and Suffering–Future          $ 50,000
    Emotional Pain and Suffering–Past           $150,000
    Emotional Pain and Suffering–Future         $250,000
    Loss of ability to enjoy life–Past          $150,000
    Loss of ability to enjoy life–Future        $200,000
    Medical Expenses–Past                       $125,746
    Medical Expenses–Future                     $200,000
    Loss of consortium–past                     $ 50,000
    (period Kathryn Sadowski survived
    after collision)
    Loss of services of his wife, Katryn        $ 50,000
    Sadowski–past (period she survived
    after collision)
    *                               *                         *
    Loss of Emil Sadowski of the love,          $375,000
    society and companionship of his
    Wife, Kathryn Sadowski
    From the record, Mr. Sadowski spent several weeks in Baptist Hospital and in its
    rehabilitation facility. He incurred over $58,000 in medical bills. State Farm asserts that Mr.
    Sadowski had no overt injuries from the accident, i.e., no broken bones and no internal
    injuries. State Farm further asserts that, during his hospital stay, Mr. Sadowski “was
    consistently noted to be resting comfortably . . . without any complaint other than an
    39
    overwhelming desire to ‘go home’.” The proof at trial does not fully support State Farm’s
    contention on this point. Mr. Sadowski’s daughter, Terri McCord, testified about having to
    leave Mr. Sadowski’s hospital room when the nurses would move him because she could not
    listen to her father cry out in pain:
    [Mr. Sadowski] was in the hospital for about nine days. The
    first two or three days he was in absolute horrific pain. His back
    was hurting him real bad. Whenever he moved or if they tried
    to move him like if they would come in and want to turn him or
    move him and I would go out in the hallway and just wait and
    let them do their thing and I would hear him just yelling like,
    stop, stop, put me back.
    His back was really in a lot of pain. He was on pain
    medication and it made him not clear headed. . . .
    Likewise, Dr. Mohan testified that Mr. Sadowski “was in a lot of pain so we put him on
    Morphine. IV Morphine he was getting as needed, every four hours as needed and also at that
    same time we put him on Hydrocodone.” Dr. Mohan explained that, “[a]lthough he did not
    break his bones . . . [Mr. Sadowski] had a pretty rough impact on his chest,” which
    exacerbated his previous sternal injury.
    We have previously discussed the fact that, after he was discharged from the
    rehabilitation center, his doctors required him to go to Ave Maria. According to Ms.
    Lawrence’s testimony, by the time of trial, Mr. Sadowski had incurred an additional $74,000
    in medical expenses at the assisted living facility. All evidence suggests that, prior to the
    accident, Mr. Sadowski was independent and very able to care for himself. By the time of
    trial, Mr. Sadowski had lost his wife of thirty years; had lost his ability to drive, which was
    a favorite past time; and had lost his independence. From the time he came to live at Ave
    Maria, the testimony indicates that Mr. Sadowski’s physical and mental condition continued
    to decline, and he suffered from depression over the loss of Mrs. Sadowski and his
    independent life. He also suffered from chronic back pain. The foregoing proof was largely
    unrefuted in the record. At any rate, State Farm did not present countervailing evidence to
    dispute either the losses Mr. Sadowski suffered or the costs of his care. From the totality of
    the circumstances, we conclude that there was ample material evidence on which the jury
    could base its award of both non-economic and economic damages to Mr. Sadowski.
    Concerning the damages for loss of consortium, it is well settled that damages
    awarded for loss of enjoyment of life are intended to compensate a plaintiff for the
    impairment of the ability to enjoy the normal pleasures of living. Lang v. Nissan N. Am.,
    Inc., 
    170 S.W.3d 564
    , 571-72 (Tenn. 2005). Here, the trial court, without objection from
    40
    State Farm, instructed the jury as follows:
    Loss of enjoyment of life takes into account the loss of the
    normal enjoyments and pleasures of life in the future, as well as
    limitations on the person’s lifestyle resulting from the injury.
    “The determination of such non-pecuniary . . . damages involves a subjective element not
    present in the determinations of ordinary facts. The jury trial guarantee requires that the
    subjective element involved be that of the community and not of judges.” Smartt, 
    2009 WL 482475
    at *21 (citing Duran v. Hyundai Motor Am., Inc., 
    271 S.W.3d 178
    (Tenn. Ct. App.
    2008)). Based upon the foregoing evidence concerning the effect of the accident on Mr.
    Sadowski’s quality of life, there is ample evidence to justify the jury’s verdict for loss of
    enjoyment of life and loss of consortium with Mrs. Sadowski.
    J. Application of Comparative Fault to Total Damages
    In its order on the jury’s verdict, the trial court reduced the total damages awarded to
    Mr. Sadowski as follows:
    After reducing the [total] amount [of damages awarded] by the
    15% of fault allocated to Emil Sadowski, the judgment to Emil
    Sadowski is reduced from $1,050,000 in non-economic damages
    and $325,746 in economic damages to $892,500 in non-
    economic damages and $276,884.10 in economic damages. The
    $750,000 cap on non-economic damages in personal injury
    cases contained in Tenn. Code Ann. Sec. 29-39-102 further
    reduces the damages to Emil Sadowski as follows: non-
    economic damages of $892,500 is reduced to $750,000. Adding
    the economic damages after 15% fault reduction of $274,884.10
    to the remaining non-economic damages leaves a final judgment
    to Emil Sadowski of $1,026,884.10 ($750,000 + 276,884.10).
    [Mr. Sadowski was also awarded loss of consortium damages in
    addition to the $1,026,884.10].
    The damages awarded to the other Plaintiffs were similarly reduced by the court upon the
    application of comparative fault and the statutory cap on non-economic damages. On appeal,
    State Farm argues that the trial court’s computation of the amount awarded to the Plaintiffs
    was erroneous. Specifically, instead of reducing the total amount of the jury award first by
    the 15% of fault assigned to Mr. Sadowski, and then applying the statutory cap to the reduced
    amount, State Farm argues that the trial court should have first applied the statutory cap and
    41
    then reduced the capped amount by the 15% for Mr. Sadowski’s fault.
    Although the statute governing the award of damages in civil actions, i.e., Tennessee
    Code Annotated Section 29-39-102, does not specifically address the question of whether
    comparative fault reductions should precede the application of the statutory cap, the statute
    does state that “[t]he limitation on the amount of noneconomic damages . . . shall not be
    disclosed to the jury, but shall be applied by the court to any award of noneconomic
    damages.” Tenn. Code Ann. §29-39-102(g). In other words, the jury should make its award
    as if the statutory cap does not exist, and the jury’s award should be based only on its
    determination of the allocation of fault in the case and its determination of the type and
    amount of damages. As noted above, “[w]e entrust the responsibility of resolving questions
    of disputed fact, including the assessment of damages, to the jury.” 
    Meals, 417 S.W.3d at 419
    . To apply the statutory cap before reducing the award by the percentage of fault–as State
    Farm proposes– would undermine the autonomy of the jury and its role in the trial.
    In arguing its position, State Farm relies on subsection (b) of Tennessee Code
    Annotated Section 29-39-102, which provides:
    If multiple defendants are found liable under the principle of
    comparative fault, the amount of all noneconomic damages, not
    to exceed seven hundred fifty thousand dollars ($750,000) for
    each injured plaintiff, shall be apportioned among the
    defendants based upon the percentage of fault for each
    defendant, so long as the plaintiff's comparative fault (or in a
    wrongful death action, the fault of the decedent) is not equal to
    or greater than fifty percent (50%), in which case recovery for
    any damages is barred.
    The foregoing statute is applicable to those situations where liability has been assigned to
    multiple tortfeasors. This is not the situation presented in the instant appeal. As correctly
    noted by Plaintiffs in their brief:
    [P]aragraph [(b)] of the statute . . . does not apply to the issue
    presented by State Farm because an allocation of fault among
    multiple defendants does not reduce the overall award like the
    allocation of fault to a plaintiff. Indeed, in some cases, a fault
    allocation to a plaintiff can reduce the damages to an amount
    below the $750,000 cap, making the cap inapplicable and
    unnecessary.
    Although the statute addressing multiple defendants is not applicable in this case, and
    42
    there are no Tennessee cases that directly address the question of whether a jury’s award on
    non-economic damages in a personal injury case should be reduced to the statutory cap
    before the application of comparative fault, we find the holding in Lindgren v. City of
    Johnson City, 
    88 S.W.3d 581
    (Tenn. Ct. App. 2002), involving another statutory cap, to be
    instructive. By way of comparison, in Lindgren, which addressed the question of the
    application of the statutory cap set out in the Governmental Tort Liability Act, Tennessee
    Code Annotated Section 29-20-101 et seq., this Court held:
    The trier of fact in a comparative fault case, such as this, should
    first determine the total amount of the plaintiff's damages
    without regard to fault, and then apportion damages on the
    percentage of fault attributable to each tortfeasor. Grandstaff v.
    Hawks, 
    36 S.W.3d 482
    (Tenn. Ct. App.2000). In this case, the
    Trial Court did not follow this procedure, although defendant
    Johnson City had raised the comparative fault of Frizzell as an
    affirmative defense. In a post-trial Motion, the plaintiff's
    attorney sought to correct this error. However, at defendant's
    urging, the Court ruled that it had lost jurisdiction of the case to
    the appellate process. We vacate the award of damages and
    remand with directions to the Trial Court on this record, without
    hearing further proof, to determine the total amount of damages
    to which plaintiff would be entitled, and then determine the
    percentage of fault, if any, attributable to Frizzell, and then enter
    Judgment against defendant, based upon the percentage of fault
    attributed to the City in accordance within the constraints of the
    Governmental Tort Liability Act. . . .
    
    Id. at 585.
    Although Tennessee has not yet had the opportunity to specifically address this
    question in the context of a personal injury case, other jurisdictions that have addressed the
    interaction between a damages cap and principles of comparative fault have almost
    unanimously held that any reduction or allocation based on comparative fault must be done
    before applying the statutory cap where a plaintiff’s damages are subject to reduction based
    on his or her comparative fault.7 See, e.g., In re Asbestos Litigation, Nos. 91-MD-875, 04-
    7
    As discussed in 1 Jacob A. Stein, Stein on Personal Injury Damages § 4:43 (3d ed.
    2014):
    A Texas Court of Appeals held that the statutory punitive damages
    43
    CV-2405, 
    2013 WL 424687
    (E.D.N.Y. Jan. 22, 2013) (“The starting point for imposing
    applicable caps will be the total award determined by the jury for the cause of action. Where
    the jury allocates fault . . . pursuant to the comparative negligence statute, the court will first
    reduce each defendant’s damages so they are proportionate to the percentage of fault
    attributable to that specific defendant. What remains after deduction of any percentage of the
    [uncapped] damage award imputed to [the defendant] is the ‘aggregate sum’ to which the
    statutory cap is applied. If the fault attributed to a defendant on an award subject to the
    statutory cap is less than $250,000, no further deduction need be applied” (internal citations
    omitted)); General Elec. Co. v. Niemet, 
    866 P.2d 1361
    (Colo. 1994) (holding that, in cases
    involving multiple defendants or plaintiff who is partially at fault, the trial court should
    ascertain pro rata liability of defendants and plaintiff before applying statutory cap on non-
    economic damages);8 Collins v. Commonwealth of Ky. Natural Resources and
    cap of four-times actual damages is calculated using actual damages
    amount awarded by jury, not amount reduced after comparative fault
    calculation. The jury awarded plaintiff $2.5 million on plaintiff's
    defective design claim against the manufacturer of a radial saw
    without a lower blade guard. The jury found that plaintiff sustained
    $592,704.91 in damages and award $2 million in punitive damages.
    Because the jury found plaintiff 30 percent liable, however, the
    damages amount was reduced to $414,893.44. Defendants argued that
    $2 million in punitives exceeded four times $414,893.44, and
    therefore must be reduced. The Texas Court of Appeals held that the
    cap applied to the damage award prior to reduction for comparative
    fault. Sears, Roebuck & Co. v. Kunze, 
    996 S.W.2d 416
    (Tex. App.
    Beaumont 1999), reh'g overruled, (Oct. 7, 1999) and petition for
    review filed, (Nov. 23, 1999).
    
    Id. From our
    research, Texas is the only jurisdiction that has specifically held that the damages cap
    applies before comparative liability percentages.
    8
    We note that Chief Justice Rovira and Justice Lohr filed a separate dissent in Niemet,
    arguing:
    The majority holds that the statutory cap for noneconomic damages
    applies to individual defendants, and therefore, it does not act as a cap
    on the total amount of noneconomic damages awarded to a plaintiff.
    In so holding, the majority concludes that in cases involving multiple
    defendants a trial court must first apportion liability to the appropriate
    parties, pursuant to the pro rata liability statute, and then apply the
    statutory cap for noneconomic damages to each individual defendant.
    Maj. op. at 1362. I disagree with this interpretation. Section
    44
    Environmental Protection Cabinet, 
    10 S.W.3d 122
    (Ky. 1999) (holding that where damages
    totaled $900,000 and decedent was found to be 80% comparatively negligent, Board erred
    when it calculated damage award by first reducing the damages to the $100,000 statutory cap
    and then further reducing this figure to $20,000 due to decedent’s comparative negligence
    where the proper procedure is to apply reduction for comparative negligence to total amount
    of damages and then limit recovery to statutory maximum); Hall v. Brookshire Bros., Ltd.,
    
    848 So. 2d 559
    (La. 2003) (holding that, in a case covered by the Louisiana Medical
    Malpractice Act, comparative fault is allocated prior to application of the damages cap);
    Brown v. Crown Equipment Corp., 
    960 A.2d 1188
    , 1195 (Me. 2008) (“A jury’s finding of
    comparative negligence should be applied before any statutorily mandated caps on [loss of
    consortium] damages are subtracted from the total amount of damages.”); McAdory v
    Rogers, 
    264 Cal. Rptr. 71
    (2nd Dist. 1989) (holding that when a percentage of fault has been
    attributed to a malpractice plaintiff, the jury’s verdict should be reduced by the percentage
    of fault attributable to the plaintiff before the statutory limitation on damages is applied);
    Gann v. Joeckel, 
    884 P.2d 451
    (Kan. Ct. App. 1994) (holding that the then-existing
    $100,000 cap on non-economic damages in the Kansas wrongful death statute is applied after
    any reduction of the total non-economic damages to reflect the decedent’s or the plaintiff’s
    comparative fault); Guiliani v. Shehata, 
    19 N.E.3d 971
    (Ohio Ct. App. 2014) (holding that
    trial court properly applied jury's comparative fault finding in medical malpractice action
    before, rather than after reducing non-economic damage award under statute placing cap of
    $250,000 on recovery of non-economic damages).
    We adopt the reasoning in the foregoing cases, which represent the holdings of the
    majority of jurisdiction that have specifically addressed this question. Accordingly, we hold,
    as a matter of law, that, in personal injury cases, the trial court should first reduce the jury’s
    award of non-economic damages by the percentage of comparative fault, and then, if the
    adjusted award is still above the statutory cap, the court should reduce the award further to
    comport with the cap.
    13–21–102.5, 6A C.R.S. (1987 & 1993 Supp.), which creates the
    statutory cap for noneconomic damages, is clear and unambiguous.
    The statute is intended to limit a plaintiff's total recovery for
    noneconomic damages regardless of the number of defendants
    involved. Thus, in my view, a trial court should apply the statutory
    cap for noneconomic damages prior to apportioning liability among
    the defendants. Further, this application of the statutory cap is not
    inconsistent with the purposes inherent in the pro rata liability statute.
    
    Niemet, 866 P.2d at 1368
    .
    45
    K. Reduction of Verdict by Policy Amounts Paid
    State Farm further asserts that it is entitled to a reduction of the total judgment by the
    amount of the pre-verdict payments it made to the Sadowskis. Specifically, it requests a
    credit for the $5,000 it paid in medical coverage payments and $20,000 in death benefits.
    This issue rests upon an interpretation of the insurance policy entered by and between the
    Sadowskis and State Farm. The policy was made part of the record as an exhibit to
    Plaintiffs’ response to State Farm’s motion for new trial. The policy provides, in relevant
    part:
    12. Our right to Recover Our Payments
    Death, Dismemberment and Loss of Sight Coverage and Loss of
    Earnings Coverage payments are not recoverable by us. Under
    all other coverages the following apply:
    a. Subrogation
    If we are obligated under this policy to make payment to or for
    a person who has a legal right to collect from another party, then
    we will be subrogated to that right to the extent of our payment.
    The person to or for whom we make payment must help us
    recover our payments by:
    (1) doing nothing to impair that legal right;
    (2) executing any documents we may need to assert that legal
    right; and
    (3) taking legal action through our representatives when we ask;
    and
    b. Reimbursement
    If we make payment under this policy and the person to or for
    whom we make payment recovers or has recovered from
    another party, then that person must:
    (1) hold in trust for us the proceeds of any recovery; and
    (2) reimburse us to the extent of our payments.
    (Emphasis added).
    In Garrison v. Bickford, our Supreme Court set out the principle guiding the
    46
    interpretation of insurance policies:
    Equally well-established is the principle that “[i]nsurance
    policies are, at their core, contracts.” As such, courts interpret
    insurance policies using the same tenets that guide the
    construction of any other contract. Thus, the terms of an
    insurance policy “ ‘should be given their plain and ordinary
    meaning, for the primary rule of contract interpretation is to
    ascertain and give effect to the intent of the parties.’ ” The
    policy should be construed “as a whole in a reasonable and
    logical manner,” and the language in dispute should be
    examined in the context of the entire agreement.
    Garrison v. Bickford, 
    377 S.W.3d 659
    663-64 (Tenn. 2012) (internal citations omitted).
    Applying the Garrison holding to the policy at issue here, it is clear that the first sentence
    of paragraph 12 precludes State Farm from recovering the $20,000 death benefits paid on
    behalf of Mrs. Sadowski (i.e., “Death . . . payments are not recoverable by us” (emphasis
    added)).
    Concerning the $5,000 in medical payments, in order to recover this amount, the
    reimbursement clause (i.e., paragraph 12b of the policy) would need to apply. The
    Sadowskis, however, did not recover any funds “from another party,” which is the triggering
    event for State Farm’s right to reimbursement. Rather, because State Farm defended under
    the uninsured motorist section of the policy, and because State Farm itself, as opposed to
    another person, paid these amounts, which were never subsequently recouped from another
    tortfeasor, the plain language of the policy precludes State Farm’s recovery of the $5,000.
    L. Discretionary Costs
    Finally, we consider State Farm’s issue concerning whether the trial court erred in
    granting Plaintiffs’ motion for discretionary costs. We review a trial court’s decision to
    award discretionary costs for an abuse of discretion. Quebecor Printing Corp. v. L & B Mfg.
    Co., 
    209 S.W.3d 565
    , 583 (Tenn. Ct. App. 2006). As this Court has explained:
    Tenn. R. Civ. P. 54.04(2) permits prevailing parties in
    civil actions to recover “discretionary costs.” The purpose of
    this provision is not to punish the losing party but rather to help
    make the prevailing party whole. Owens v. Owens, 
    241 S.W.3d 478
    , 496–97 (Tenn.Ct.App.2007); Scholz v. S.B. Int'l, Inc., 
    40 S.W.3d 78
    , 85 (Tenn.Ct.App.2000). The particular equities of
    47
    the case may influence a trial court’s decision to award
    discretionary costs, Perdue v. Green Branch Mining Co., 
    837 S.W.2d 56
    , 60 (Tenn.1992), and, therefore, parties are not
    entitled to discretionary costs simply because they prevail.
    Scholz v. S.B. Int'l, 
    Inc., 40 S.W.3d at 85
    ; Sanders v. Gray, 
    989 S.W.2d 343
    , 345 (Tenn. Ct. App.1998).
    The party seeking discretionary costs has the burden of
    convincing the trial court that it is entitled to these costs.
    Carpenter v. Klepper, 
    205 S.W.3d 474
    , 490 (Tenn.Ct.
    App.2006); Stalsworth v. Grummons, 
    36 S.W.3d 832
    , 835
    (Tenn.Ct.App.2000). As a general matter, a party seeking
    discretionary costs can carry its burden by filing a timely and
    properly supported motion demonstrating (1) that it is the
    prevailing party, (2) that the costs being sought are included in
    Tenn. R. Civ. P. 54.04(2), (3) that the costs are necessary and
    reasonable, and (4) that it has not engaged in conduct during the
    litigation that would justify depriving it of the costs it is
    requesting. Trundle v. Park, 
    210 S.W.3d 575
    , 582
    (Tenn.Ct.App.2006); Waggoner Motors, Inc. v. Waverly
    Church of Christ, 
    159 S.W.3d 42
    , 65–66 (Tenn.Ct.App.2004);
    Mass. Mut. Life Ins. Co. v. Jefferson, 
    104 S.W.3d 1
    3, 35–36
    (Tenn. Ct. App. 2002).
    Duran v. Hyundai Motor America, Inc., 
    271 S.W.3d 178
    , 214-15 (Tenn. Ct. App. 2008).
    In pertinent part, Tennessee Rule of Civil Procedure 54.04, provides:
    Costs not included in the bill of costs prepared by the clerk are
    allowable only in the court's discretion. Discretionary costs
    allowable are: reasonable and necessary court reporter expenses
    for depositions or trials, reasonable and necessary expert witness
    fees for depositions (or stipulated reports) and for trials,
    reasonable and necessary interpreter fees not paid pursuant to
    Tennessee Supreme Court Rule 42, and guardian ad litem fees;
    travel expenses are not allowable discretionary costs . . . .
    Tenn. R. Civ. P. 54.04(2).
    State Farm argues that the award of $7,100 for the costs of the testimony of the
    Sadowskis’ treating physicians was improper because the physicians are not “experts,” as
    48
    contemplated by the Rules of Civil Procedure. The cases relied upon by State Farm in its
    appellate brief, i.e., Alessio v. Crook, 
    633 S.W.2d 770
    (Tenn. Ct. App. 1982) and Small ex
    rel. Russell v. Shelby County Schools, No. W2007-00045-COA-R3-CV, 
    2008 WL 360925
    (Tenn. Ct. App. Feb. 12, 2008), stand only for the proposition that treating physicians should
    not be considered “expert witnesses” for purposes of pre-trial disclosure under Tennessee
    Rule of Civil Procedure 26. Rather, an expert for Rule 26 purposes develops his or her
    opinion “in anticipation of litigation or for trial.” Tenn. R. Civ. P. 26.02(4). A treating
    physician develops his or her opinions in the course of treating a patient and, thus, parties are
    not required to fashion discovery requests in accordance with Rule 26.02(4) in order to learn
    the identity and opinions of a treating physician. See 
    Alessio, 633 S.W.2d at 779-80
    ; see also
    Buckner v. Hassell, 
    44 S.W.3d 78
    , 84 (Tenn. Ct. App. 2001) (distinguishing Alessio where
    a treating physician was “rendered . . . an expert witness under Tennessee Rule of Civil
    Procedure 26" when he considered matters outside his treatment of the plaintiff in rendering
    his opinion on the standard of care). In short, State Farm’s reliance on cases addressing the
    definition of “expert” for Rule 26 purposes is misplaced. Merely because treating physicians
    are not “experts” under Rule 26 does not, ipso facto, mean that they are not experts for other
    purposes. For example, a treating physician may be considered an “expert” as that term is
    used in Tennessee Rule of Evidence 702 because of his or her “specialized knowledge” in
    the areas of medical treatment. Furthermore, in personal injury lawsuits, “plaintiffs must
    present competent expert testimony” to establish that the medical expenses plaintiff incurred
    are “necessary and reasonable.” Borner v. Autry, 
    284 S.W.3d 216
    , 218 (Tenn. 2009); see
    also Miller v. Choo Choo Partners, L.P., 
    73 S.W.3d 897
    , 901 (Tenn. Ct. App. 2001)
    (holding that causation of medical condition must be established by a medical expert).
    Typically, this “expert testimony” to meet the personal injury plaintiff’s burden is supplied
    by the treating physician. Here, the testimonies of Dr. Jain and Dr. Mohan were “necessary”
    to Plaintiff’s proof. Without these witnesses, Plaintiffs would not have shown that the
    medical costs were necessary and reasonable or that they were related to the accident.
    Accordingly, we cannot hold that the trial court abused its discretion in awarding Plaintiff’s
    discretionary costs for this testimony under Tennessee Rule of Civil Procedure 54.04(b).
    V. Conclusion
    For the foregoing reasons, we affirm the judgment of the trial court. The case is
    remanded for such further proceedings as may be necessary and are consistent with this
    opinion. Costs of the appeal are assessed against the Appellant, State Farm Mutual Insurance
    Company, and its surety, for all of which execution may issue if necessary.
    _________________________________
    KENNY ARMSTRONG, JUDGE
    49