Ronald Hayes v. John Doe and Shelter Insurance Company - Concurring ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
ROLAND HAYES, )
)
Plaintiff/Appellant, ) Shelby Circuit No. 36853 T.D. & 72286 T.D.
)
VS. ) Appeal No. 02A01-9610-CV-00251
)
JOHN DOE and SHELTER )
INSURANCE COMPANY, )
)
Defendants/Appellees. )
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE GEORGE H. BROWN, JR., JUDGE
FILED
September 4, 1997
RITA L. STOTTS Cecil Crowson, Jr.
Memphis, Tennessee Appellate C ourt Clerk
Attorney for Appellant
JAMES E. CONLEY, JR.
THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL
Attorney for Appellee, Shelter Insurance Company
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
In this automobile accident case, Roland Hayes (“Plaintiff”) filed suit against John
Doe (“Doe”) for damages sustained when Plaintiff was forced to drive off the road into a
tree in order to avoid a head-on collision with Doe’s vehicle. Plaintiff filed a second suit
against Shelter Insurance Company (“Defendant”) for Defendant’s alleged bad faith failure
to pay Plaintiff’s uninsured motorist claim under the insurance contract existing between
Plaintiff and Defendant. The trial court later consolidated Plaintiff’s negligence suit against
Doe with Plaintiff’s bad faith suit against the Defendant. After the parties stipulated that
the Defendant paid Plaintiff $11,262.89 prior to trial and after the jury returned a verdict of
$2,337 in favor of Plaintiff on Plaintiff’s negligence claim against Doe, the trial court held
that Plaintiff should recover nothing from the Defendant in accordance with the jury’s
verdict. Plaintiff appeals the judgment of the trial court arguing that the trial court erred in
consolidating Plaintiff’s negligence action against Doe with Plaintiff’s bad faith action
against the Defendant and in refusing to grant Plaintiff an additur or a new trial. For the
reasons stated hereafter, we affirm the judgment of the trial court.
FACTS
On January 4, 1990 at approximately 7:00 p.m., Plaintiff was driving east on
Simmons Road, a two-lane road. As Plaintiff proceeded along the road, Plaintiff noticed
an unidentified car traveling west on Simmons Road which had its lights on high beam and
was swerving. The unidentified car crossed the double line in the road and forced Plaintiff
to swerve right in order to avoid a head-on collision. Plaintiff swerved, struck a tree and
was injured.
Plaintiff filed a negligence action in circuit court against Doe, the unknown driver,
and Plaintiff filed a second action in chancery court against the Defendant, alleging the
Defendant’s bad faith refusal to pay Plaintiff’s unisured motorist claim. These cases were
later consolidated and transferred to circuit court.
The parties stipulated that the Defendant was Plaintiff’s uninsured motorist carrier
on January 4, 1990, the day of the accident, and that the Defendant paid Plaintiff
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$11,262.89 prior to trial.
At trial, two eyewitnesses testified that they saw the unknown driver swerve in front
of Plaintiff’s vehicle, forcing Plaintiff off the road and into a tree.
Dr. John Howser, a neurosurgeon, first examined the Plaintiff on May 18, 1983 after
Plaintiff had been involved in a car accident wherein Plaintiff was forced off the road and
into a ditch. Suffering from black-outs, dizziness, headaches, neck and low back pain,
Plaintiff was treated by Dr. Howser. Dr. Howser opined that Plaintiff was possibly suffering
from a ruptured disk.
Dr. Howser next saw Plaintiff on May 21, 1986 after Plaintiff had been involved in
another automobile accident in which his head hit the windshield and he was jerked around
in the car. Plaintiff complained of neck pain, low back pain and headaches as a result of
this accident. Dr. Howser diagnosed Plaintiff as having cervical lumbar strain and opined
that Plaintiff possibly had a central ruptured disk. Plaintiff visited Dr. Howser again on
September 14, 1987 whereupon Plaintiff was experiencing no pain and was doing well.
After the January 4, 1990 car accident, Plaintiff returned to Dr. Howser on January
9, 1990 complaining of neck pain, back pain and headaches. Plaintiff again visited Dr.
Howser on January 16, 1990, July 18, 1990, April 18, 1991, and on October 1, 1991. As
a result of Plaintiff’s January 4, 1990 accident, Dr. Howser opined that Plaintiff was
possibly suffering from a ruptured disk.
After being mugged, struck in the head, and knocked unconscious on December 24,
1991, Plaintiff again visited Dr. Howser. Dr. Howser saw Plaintiff in February, March and
April 1992.
Although Dr. Howser opined that Plaintiff was possibly suffering from a ruptured
disk, none of Dr. Howser’s tests confirmed the existence of a ruptured disk.
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According to Plaintiff’s testimony, Plaintiff was treated in 1979 by Dr. Horn for head
and neck injuries after Plaintiff was involved in an automobile accident. Plaintiff was
involved in other automobile accidents in 1981, 1982, 1983, and in 1985 or 1986. In
Plaintiff’s 1982 car accident, Plaintiff was a passenger in a car which landed in a ditch and
hit a tree. Plaintiff filed suit and collected a judgment for his injuries sustained in the 1983
car accident. As a result of the 1985 automobile accident, Plaintiff experienced severe
neck pain, back pain and headaches. In 1986, Plaintiff was attacked by the police.
Plaintiff pled guilty to leaving the scene of an accident which occurred on May 4,
1990. In October 1990, Plaintiff had another car accident on Simmons Road wherein
Plaintiff’s tire blew out. Plaintiff suffered neck pain, back pain and headaches as a result
of the October 1990 accident.
Other insurance policies Plaintiff had in effect at the time of the January 4, 1990
accident in addition to the policy Plaintiff had in effect with the Defendant include: an
insurance policy with Mutual of Omaha issued on December 26, 1989, an insurance policy
with Associated Doctor’s Health issued on November 30, 1989, an insurance policy with
National Home Life issued on December 11, 1989 and a disability policy with Monumental
General Insurance Group.
According to the testimony of Marie Cornelius, an administrator of medical insurance
employed by the Steam Fitters Local Union and Welfare Fund (“Steam Fitters”), Plaintiff’s
insurance with Steam Fitters went into effect on January 1, 1990. Plaintiff filed a claim with
Steam Fitters after his January 4, 1990 accident. Plaintiff filed another claim after being
hit by an unidentified object in July 1990. Another claim was filed by Plaintiff in October
1990 after Plaintiff was involved in a car accident. Plaintiff filed additional claims in March
1991, May 1991, August 1991, and September 1991 for injuries resulting from falling off
a horse. In October 1991, Plaintiff’s foot slipped out from under him as he was changing
a tire, and he filed another claim. Plaintiff filed a claim in December 1991 after being
attacked and beaten. On November 16, 1992, Plaintiff filed a claim for a sprained neck.
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On November 19, 1992, Plaintiff filed a claim for contusion of the face and skull.
According to the testimony of Dr. Richard Ennis, an orthopaedic surgeon, Dr. Ennis
first saw Plaintiff during the mid-1980's for a back injury resulting from an automobile
accident. Dr. Ennis treated Plaintiff for a period of time following this accident, and
Plaintiff’s back finally healed. Dr. Ennis saw Plaintiff again on October 18, 1988 after
Plaintiff had been involved in an automobile accident on October 9, 1988 wherein Plaintiff
was a front seat passenger in a car which was forced to swerve in order to avoid a head-on
collision with another car. The car in which Plaintiff was riding struck a tree. Complaining
of headaches, neck pain, shoulder pain and lower back pain, Plaintiff was diagnosed as
having neck and low back strain.
On January 29, 1990, Dr. Ennis treated Plaintiff for injuries resulting from his
January 4, 1990 car accident and diagnosed Plaintiff as having acute cervical strain and
acute lumbar strain. Dr. Ennis saw Plaintiff again on March 12, 1990 whereupon Plaintiff
still had some neck pain, but his back was much better. Dr. Ennis stated that there was
no evidence indicating that Plaintiff had suffered a serious injury as a result of his January
4, 1990 car accident and no evidence indicating that Plaintiff had a ruptured disk due to
this accident.
Dr. Ennis next treated Plaintiff in July 1991 for injuries resulting from Plaintiff’s fall
from a horse. Complaining of injuries to his back and neck, Plaintiff was treated by Dr.
Ennis from July through November 1991 for injuries resulting from his fall off a horse. Dr.
Ennis opined that when he saw Plaintiff in July 1991, Plaintiff had fully recovered from his
car accident which occurred on January 4, 1990. Dr. Ennis opined that Plaintiff suffered
no permanent impairment as a result of his January 4, 1990 automobile accident.
After examining Plaintiff on April 20, 1994, Dr. James Rodney Feild, a
neurosurgeon, stated that Plaintiff had no significant back problems, that Plaintiff had no
disability resulting from his January 4, 1990 car accident and that Plaintiff needed no
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further treatment. Dr. Feild opined that Plaintiff sustained a sprained back as a result of
the January 4, 1990 car accident, that Plaintiff should have been off work for forty-eight
hours, and that Plaintiff required no additional treatment after forty-eight hours of rest from
work. It was also Dr. Feild’s opinion that Plaintiff did not have a ruptured disk and that
Plaintiff falsified his clinical examination and symptoms. Upon reviewing a CAT scan of
Plaintiff’s lumbar spine, Dr. Feild stated that there was no evidence of disk herniation or
abnormality. None of Plaintiff’s tests revealed any sign of a ruptured disk or nerve
impingement which could cause pain.
LAW
The three issues raised on appeal are as follows:
1) Whether the trial court erred in consolidating Plaintiff’s negligence action with
Plaintiff’s bad faith action;
2) Whether material evidence exists to support the jury’s verdict; and
3) Whether the trial court erred in refusing to grant Plaintiff an additur or a new trial.
Plaintiff argues that the trial court erred in consolidating Plaintiff’s negligence action
with Plaintiff’s bad faith action. Plaintiff, however, has produced no evidence indicating that
Plaintiff objected to the trial court’s consolidation of the two actions. In absence of such
evidence, Plaintiff has waived his right to raise this as an issue on appeal. Ehrlich v.
Weber, 88 S.W. 188, 189 (Tenn. 1905); Harwell v. Walton, 820 S.W.2d 116, 119-20
(Tenn. Ct. App. 1991); Wright v. United Services Auto. Ass’n, 789 S.W.2d 911, 914 (Tenn.
Ct. App. 1990); Dement v. Kitts, 777 S.W.2d 33, 35 (Tenn. Ct. App. 1989); Yarbrough v.
Stiles, 717 S.W.2d 886, 887-88 (Tenn. Ct. App. 1986); Pyle v. Morrison, 716 S.W.2d 930,
936 (Tenn. Ct. App. 1986); Baxter v. Vandenheoval, 686 S.W.2d 908, 911 (Tenn. Ct. App.
1984).
Review of findings of fact by the trial court in civil actions shall be de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding,
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unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d). Findings of fact
by a jury in civil actions shall be set aside only if there is no material evidence to support
the verdict. T.R.A.P. 13(d). In the instant case, Dr. Ennis testified that there was no
evidence indicating that Plaintiff had suffered a serious injury as a result of the January 4,
1990 car accident and no evidence indicating that Plaintiff had a ruptured disk due to the
accident. Dr. Ennis opined that Plaintiff suffered no permanent impairment as a result of
the January 4, 1990 automobile accident and that Plaintiff had fully recovered from any and
all injuries which he incurred due to the accident when Dr. Ennis examined Plaintiff in July
1991. In addition, Dr. Feild testified that Plaintiff sustained a sprained back as a result of
the January 4, 1990 car accident, that Plaintiff should have been off work for forty-eight
hours after the accident, and that Plaintiff required no additional treatment after forty-eight
hours of rest from work. Dr. Feild opined that Plaintiff incurred no disability from the
January 4, 1990 car accident, that Plaintiff had no significant back problems, and that
Plaintiff needed no further treatment. Dr. Feild further opined that Plaintiff did not have a
ruptured disk and that Plaintiff falsified his clinical examination and symptoms. Upon
reviewing a CAT scan of Plaintiff’s lumbar spine, Dr. Feild stated that there was no
evidence of disk herniation or abnormality. None of Plaintiff’s tests revealed any sign of
a ruptured disk or nerve impingement which could cause pain. Based on the foregoing
testimony, there is material evidence indicating that Plaintiff did not suffer a serious injury
as a result of the January 4, 1990 automobile accident, that Plaintiff did not incur a
ruptured disk due to this accident, and that Plaintiff suffered no permanent physical
impairment which was caused by the accident. We, therefore, affirm the jury’s verdict
which awarded Plaintiff $2,337.
Because of our disposition of the foregoing issue, it is not necessary to address the
final issue raised on appeal.
The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to
Appellant for which execution may issue if necessary.
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HIGHERS, J.
CRAWFORD, P.J., W.S.
FARMER, J.
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