Beal v. Doe
| Decision Date | 21 October 1998 |
| Citation | 987 S.W.2d 41 |
| Parties | Rusty Jolene BEAL, Plaintiff/Appellee, v. John DOE , Defendants/Appellants. |
| Court | Tennessee Court of Appeals |
Thomas H. Peebles, G. Brian Jackson, Trabue, Sturdivant & DeWitt, Nashville, Tennessee, Attorneys for Defendants/Appellants.
George M. Allen, Wischhof & Allen, Goodlettsville, Tennessee, Attorney for Plaintiff/Appellee.
This is an appeal by Tennessee Farmers Mutual Insurance Company and an unknown motorist alleged to be uninsured pursuant to the provisions of Tennessee Code Annotated section 56-7-1201(e).
Rusty Jolene Beal filed suit against James M. Sloan as driver, and William Sloan as owner of a vehicle which struck plaintiff vehicle in the rear on White Bridge Road, Nashville, Tennessee January 2, 1994. The allegations asserted proximate negligence, family purpose doctrine and injuries to the plaintiff.
Beal was insured by Tennessee Farmers Mutual Insurance Company under a policy providing $50,000 per person liability limits and $100,000 per accident limits. The same limits were applicable to uninsured or underinsured motorists.
Process was served on Tennessee Farmers Mutual under Tennessee Code Annotated section 56-7-1206, and on February 8, 1995, Tennessee Farmers answered admitting the policy of insurance and the limits therein and claimed subrogation of $9,317.01 under the provisions of its medical pay clause. In this answer Tennessee Farmers demanded a jury of twelve to try the cause and provided further:
Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers") files this answer pursuant to T.C.A. § 56-7-1201, et seq., and specifically reserves the right to defend in its own name or in the name of the alleged uninsured/underinsured motorist, pursuant to T.C.A. § 56-7-1206.
In the original complaint Beal charged that the negligence of James Sloan "... constituted the sole and proximate cause of the accident ..."
On April 6, 1995, defendants Sloan filed an answer to the original complaint admitting that the negligence of James M. Sloan was a proximate cause of the automobile accident but denying that such negligence was a proximate cause of the injuries alleged by the plaintiff. In this answer defendants Sloan demanded a jury of twelve to try the action just as Beal had demanded such a jury in the original complaint.
On May 23, 1996, defendants Sloan filed an amended answer asserting that an unknown driver of a vehicle had abruptly stopped ahead of plaintiff, thus forcing plaintiff to abruptly stop and at least partially causing defendant Sloan to strike plaintiff's vehicle in the rear. Thus, defendant Sloan sought through comparative fault to allocate part of the responsibility to the unknown driver of the unknown vehicle. Sloan reiterated his demand for a twelve person jury to try the cause.
On May 24, 1996, Tennessee Farmers Mutual amended its answer by adding the following:
15. Alternatively, this accident was proximately caused by the negligence of an unknown driver, who caused the plaintiff to stop abruptly and unexpectedly. The negligence of the unknown driver was the sole proximate cause of any injuries to the plaintiff. Alternatively, the negligence of the defendant Sloan, if any, should be compared with that of the unknown driver and/or the plaintiff, according to the principles of comparative fault.
On July 5, 1996, plaintiff filed her first amended complaint making the unknown driver a "John Doe" defendant and seeking judgment against both the Sloan defendants and the unknown driver, John Doe.
On June 23, 1997, Tennessee Farmers Mutual filed an answer to the amended complaint acknowledging its defense of John Doe and again demanding a twelve person jury to try the cause.
Tennessee Farmers made a tactical decision not to participate in the trial of the case, acting pursuant to Tennessee Code Annotated section 56-7-1206(a)(1994). See generally McCall v. Maryland Casualty Co., 516 S.W.2d 353 (Tenn.1974).
When the case came on for trial on the jury docket on June 25, 1997, only counsel for the plaintiff Beal and counsel for the defendants Sloan appeared for trial.
Counsel for these parties in the voluntary absence of counsel for Tennessee Farmers waived their respective demands for trial by jury and proceeded with a bench trial. At the close of the plaintiff's proof, the defendants Sloan settled with plaintiffs and the bench trial continued between plaintiff and the unknown motorist. Counsel for Tennessee Farmers appeared before the completion of the proof and demanded that a jury be impaneled in accordance with Tennessee Farmer's demand for a jury in its pleadings. Such demand was denied by the trial court and the case taken under advisement as a bench trial.
On July 24, 1997, the trial court rendered its judgment in part as follows:
Before the conclusion of the Plaintiff's proof, G. Brian Jackson, primary counsel for John Doe and TFMIC, appeared at Court. Immediately following completion of the Plaintiff's proof, said counsel objected in open court to trial of the case non-jury and reiterated his clients' demand that a jury be empaneled to hear the case. Counsel for the Plaintiff objected to the right of counsel for TFMIC, who was not present at the beginning of the trial, to later appear and contest the non-jury proceeding. Counsel for John Doe and TFMIC stated to the Court that those parties were not withdrawing and had never withdrawn their demand for a trial by jury.
After hearing the statements of counsel for the Plaintiff and counsel for John Doe and TFMIC, the Court overruled the objection to the non-jury proceeding and announced that the cause would be taken under advisement and decided by the Court.
Having considered the proof, giving due weight to the demeanor and credibility of the parties and the witnesses, and the entire record in the cause, the Court finds the following:
1. The testimony of Defendant James M. Sloan, who was not then and there an occupant of Plaintiff's insured automobile, is clear and convincing evidence of the contributory fault of a John Doe driver in the case at bar.
2. Rusty Jolene Beal reported the automobile accident at bar to the appropriate law enforcement agency, to-wit the Metropolitan Police Department, and was not negligent in failing to determine the identity of the John Doe driver.
3. Total compensatory damages awarded to the Plaintiff for personal injuries proximately resulting from the automobile accident at bar are $44,750.00.
4. The comparative fault of all parties alleged to have contributed to causing the automobile accident at bar is apportioned as follows:
James M. Sloan 50%
John Doe 50%
Tennessee Farmers filed post-trial motions protesting the non-jury trial on a basis best articulated by the affidavit of attorney G. Brian Jackson, which accompanied the July 30, 1997 motion for a new trial. This affidavit provided in part:
2. The complaint in this case, which was filed on or around December 20, 1994, contained a jury demand. On or around, February 8, 1995, I filed an answer on behalf of Tennessee Farmers. The answer contained a jury demand. The named defendants, James Sloan and William Sloan answered on or around April 6, 1995. Their answer contained a jury demand. The case proceeded through discovery for more than a year and a half. I participated actively in the discovery, attending all depositions and participating in written discovery.
3. The plaintiff filed an amended complaint on July 29, 1996. Tennessee Farmers answered the amended complaint on June 23, 1997. This answer also contained a jury demand.
4. On or around November 25, 1996, the plaintiff moved to set the case for trial. The motion moved to set the case "on the jury trial docket...."
5. An agreed order was submitted to the court on around December 4, 1996, setting the case "for trial to a jury on June 25, 1997 at 9:00 a.m...."
6. Some settlement negotiations took place in the spring of 1996. Although I made an offer on behalf of my client, the parties were unable to agree to resolve the case.
7. After careful consideration, I made a tactical decision not to participate actively in the trial of the case. I knew the named defendants' attorney to be capable and was confident he would keep the plaintiff's damages low enough to avoid any underinsured motorist coverage exposure. Because Tennessee Farmers had a subrogation lien for medical payments, any underinsured exposure would require a verdict of at least $35,000. I believed a jury would be unlikely to award more than that amount. I also believed that the jury would be unlikely to assess any substantial percentage of fault to "John Doe" if "John Doe" was not represented at trial. For these and other tactical reasons, I determined not to participate actively in the jury trial. In underinsured motorist cases, it is relatively common for counsel to decide not to participate actively in trials.
8. On or around April 30, 1997, I sent a letter to the counsel for the named defendants informing him that I did not intend to participate actively in the jury trial. I spoke with counsel for the named defendants on June 18, 1997, again telling him that I would not be participating in the trial and discussing his strategy for defending the case at the jury trial.
9. On June 19, 1997, I spoke to counsel for the plaintiff and informed him that I would not be participating actively in the jury trial.
10. On or around June 23, 1997, I received proposed jury instructions from the named defendants.
11. On June 24, 1997, I received a telephone call from the Court concerning scheduling of the jury trial. I informed the Court that I would not be actively participating in the trial, although I did expect to monitor...
To continue reading
Request your trial
-
Poole v. Bank
...G.R. Co. v. Martin, 85 Tenn. 134, 2 S.W. 381, 382 (1886); Nagarajan v. Terry, 151 S.W.3d 166, 176 (Tenn.Ct.App.2003); Beal v. Doe, 987 S.W.2d 41, 48–49 (Tenn.Ct.App.1998); Davis v. Ballard, 946 S.W.2d 816, 817 (Tenn.Ct.App.1996). The Tennessee Rules of Civil Procedure expressly provide for ......
-
Henley v. Amecher
...541 S.W.2d 101, 106 (Tenn. 1976); Paducah, Tenn. & Ala. R.R. v. Muzzell, 95 Tenn. 200, 201, 31 S.W. 999, 999 (1895); Beal v. Doe, 987 S.W.2d 41, 46-47 (Tenn. Ct. App. 1998). 14 Tenn. R. App. P. 13(d)'s material evidence standard is similar to the federal courts' substantial evidence standar......
-
McGill Restoration, Inc. v. Lion Place Condo. Ass'n
...; McLyman v. Miller , 52 R.I. 374, 161 A. 111 (1932) ; Smith v. Barnes , 9 Misc. 368, 29 N.Y.S. 692 (N.Y. Sup. 1894) ; Beal v. Doe , 987 S.W.2d 41 (Tenn. App. 1998). But see, Blanton v. Womancare, Inc. , 38 Cal. 3d 396, 696 P.2d 645, 212 Cal. Rptr. 151 (1985) ; Graves v. P. J. Taggares Co. ......
-
Grandstaff v Hawks
...Ms. Grandstaff's failure to object because he would have entrusted all trial decisions to Ms. Grandstaff's lawyer. See Beal v. Doe, 987 S.W.2d 41, 48 (Tenn. Ct. App. 1998). 9 This exception applies only to erroneous instructions; it does not relieve a party of the responsibility to bring th......