Borne v. Celadon Trucking Servs., Inc.

• Decision Date: 31 July 2014
• Docket Number: No. W2013-01949-COA-R3-CV,W2013-01949-COA-R3-CV
• Court: Tennessee Court of Appeals
• Parties: DONRIEL A. BORNE v. CELADON TRUCKING SERVICES, INC.

DONRIEL A. BORNE v. CELADON TRUCKING SERVICES, INC.

No. W2013-01949-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

April 23, 2014 Session

July 31, 2014

Direct Appeal from the Circuit Court for Shelby County

No. CT-003273-10

Robert S. Weiss, Judge

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was driving a tractor-trailer, sued the other truck drivers and the trucking company owners of the vehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant's motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000. Plaintiff accepted the remittitur under protest and the non-agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court's suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which DAVID R. FARMER, J., joined and J. STEVEN STAFFORD, J., dissented separately.

Dwight E. Tarwater, Ryan M. Connor, Knoxville, Tennessee; Jim Summers, Kevin W. Washburn, Memphis, Tennessee, for the appellant, Celadon Trucking Services, Inc.

R. Sadler Bailey, Thomas R. Greer, Memphis, Tennessee, for the appellee, Donriel A. Borne

OPINION

I. FACTS & PROCEDURAL HISTORY

On July 1, 2009, three tractor-trailer trucks were involved in an accident on Interstate 55 in Memphis, Tennessee. The first tractor-trailer, driven by Donriel A. Borne ("Plaintiff"), was stopped in a construction zone when it was rear-ended by a tractor-trailer owned by Celadon Trucking Services, Inc. ("Celadon") and driven by Harold Foster. The Celadon truck was then apparently rear-ended by a tractor-trailer owned by Chickasaw Container Services, Inc. "(Chickasaw") and driven by Steve Dondeville.

On June 30, 2010, Plaintiff,¹ who allegedly suffered back and neck injuries in the accident, filed a personal injury lawsuit in the Shelby County Circuit Court against Celadon and Chickasaw alleging the negligence of the employee tractor-trailer drivers Foster and Dondeville,² seeking $5,000,000.00 in compensatory damages. Celadon and Chickasaw filed answers denying liability.

The matter was set for trial on May 20, 2013. On May 17, 2013, Plaintiff and Chickasaw entered into a letter agreement ("Agreement") drafted by Plaintiff's counsel and executed by both parties' counsel, as follows:

I am writing to set forth my understanding of the facts and to confirm our agreement regarding this case.

As I understand, Chickasaw has tried to persuade Celadon to admit that Chickasaw is not at fault in this case. Celadon has refused to make such an admission. Celadon intends to pursue the frivolous blaming Chickasaw for the injuries suffered by Mr. Borne.

My client, by and through the efforts of his attorneys, has come to the conclusion that Chickasaw is not at fault in this matter. I am troubled that Chickasaw is a defendant in this case. As you know, we only named Chickasaw as a defendant in this case because it was obvious to us that Cel[a]don was going to attempt to blame Chickasaw. My investigation reflects

that Chickasaw is not a responsible party for the injuries suffered by Mr. Borne. We have agreed to fully cooperate with each other with regard to this litigation. It is agreed that Borne has no basis to blame Chickasaw in this matter, and Borne will take no actions in litigation adverse to the interests of Chickasaw. Mr. Borne acknowledges that Chickasaw is not at fault and will communicate that to the jury. It is further agreed that Chickasaw has no factual basis to deny the injuries suffered by Mr. Borne and that those injuries are attributable to the negligence of Cel[a]don. Chickasaw agrees to take no action in this litigation which is any way contrary to the interests of Mr. Borne. In fact, Mr. Borne and Chickasaw agreed to work in concert to expose the defenses being asserted by Cel[a]don in this litigation.

It is anticipated that the jury will come to the conclusion that Chickasaw is not at fault. However, in the event that Cel[a]don is successful in persuading the jury that a judgment should be entered against Chickasaw, and in favor of Borne, it is hereby the agreement between Borne and Chickasaw that Borne will accept payment from Chickasaw of one-half of the amount of any judgment entered against Chickasaw in favor of Mr. Borne. . . .

The Agreement was immediately disclosed to Celadon including that Plaintiff and Chickasaw would work in concert to select the jury.

The case was tried over six days in May of 2013. At the commencement of trial, Celadon's counsel brought the Agreement to the trial court's attention and counsel asked that the agreement "be available to use to impeach witnesses" and that it "be admissible as evidence[.]" For reasons discussed hereinafter, the Agreement was scarcely mentioned at trial, it was not admitted into evidence, and the jury was not instructed regarding it.

At the close of Plaintiff's proof, Chickasaw moved for a directed verdict, but given Celadon's assertion of comparative fault against Chickasaw, the motion was taken under advisement. On the second-to-last day of trial, Celadon struck its comparative fault allegation against Chickasaw, and Chickasaw was dismissed on a directed verdict. The jury returned a verdict in favor of Plaintiff for $3,705,000. Specifically, the jury awarded $1,455,000 for loss of earning capacity, $750,000 for physical pain and mental suffering, $750,000 for permanent injury, and $750,000 for loss of enjoyment of life.

Celadon filed a Motion for New Trial or, in the Alternative, for Remittitur. Following a hearing, the circuit court entered an Order denying Celadon's motion for new trial, but granting a remittitur based upon its finding that the jury's award was "excessive." The trial court reduced the total verdict by $1,605,000 to $2,100,000 as follows:

Loss of Earning Capacity reduced from $1,455,000 to $1,100,000

Physical Pain and Mental Anguish reduced from $750,000 to $500,000

Permanent Injury reduced from $750,000 to $100,000

Loss of Enjoyment of Life reduced from $750,000 to $400,000

Plaintiff accepted the remittitur under protest.³ Celadon timely appealed to this Court.

II. ISSUES PRESENTED

Appellant presents the following issues for review, as restated:

1. Whether the agreement between Plaintiff and Chickasaw violates public policy;

2. Whether the trial court erred in its treatment of the agreement by failing to (1) strike the jury panel; (2) enter the agreement into evidence; and (3) issue an appropriate jury instruction;

3. Whether the trial court erred in failing to instruct the jury on superseding cause;

4. Whether the trial court sufficiently remitted the jury verdict. Additionally, Appellee presents the following issues:

1. Whether Appellant waived its right to object to the agreement; and

2. Whether the trial court erred in reducing the jury verdict.

For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court's suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

III. DISCUSSION

A. Public Policy

On appeal, Celadon first argues that the Agreement between Plaintiff and Chickasaw violates public policy necessitating vacation of the jury verdict. Specifically, Celadon contends that the Agreement misled the jury by obfuscating the parties' true allegiances, that the Agreement misallocated peremptory challenges in violation of Tennessee Code Annotated section 22-3-104,⁴ that it disregarded the link between fault and liability, and that it compromised the integrity of the legal profession and the justice system.

Plaintiff rejects Celadon's contention that the Agreement violates public policy. Plaintiff points out that the Agreement was fully disclosed to Celadon and to the trial court, that the jury was not prohibited from knowing about the Agreement, and that Chickasaw was not required to assist Plaintiff in increasing his damages. According to Plaintiff, the Agreement does not inhibit settlement because Chickasaw retains no authority over future settlement terms between Plaintiff and Celadon. Plaintiff further argues that Celadon has not identified any harm resulting from the peremptory challenge allocation and that Chickasaw's dismissal obviated any comparative fault concerns.

At the outset, however, Plaintiff argues that we should not reach the public policy issue because Celadon failed to raise it at any time in the trial court. In response to Plaintiff's waiver argument, Celadon claims that it preserved its public policy objections by raising the issue in its memorandum of law incorporated into its motion for new trial (together, "motion for new trial"). Specifically, it points to the following statements in its nearly fifty-page motion for new trial: that the Agreement "perpetrate[d] a fraud on this Court and the jury[,]"and that "Mary Carter Agreements⁵ are...