Hindman v. Doe

• Decision Date: 24 May 2007
• Docket Number: No. M2006-01034-COA-R3-CV.,M2006-01034-COA-R3-CV.
• Parties: James W. HINDMAN, III v. John DOE et al.
• Court: Tennessee Court of Appeals

241 S.W.3d 464

James W. HINDMAN, III v. John DOE et al.

No. M2006-01034-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

May 8, 2007 Session.

May 24, 2007.

Permission to Appeal Denied by Supreme Court September 17, 2007.

John Thomas Feeney, Nashville, Tennessee, for the appellant, Specialty Risk Insurance Company.

W. Gary Blackburn, Nashville, Tennessee, for the appellee, James W. Hindman, III.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves a dispute regarding the availability of uninsured motorist coverage for a motorist who was seriously injured after striking a large rock in the roadway. The motorist filed suit in the Circuit Court for Davidson County against the unknown owner and operator of the dump truck whom he believed were responsible for the rock being in the roadway. He also made an uninsured motorist claim against his own insurance company. A jury apportioned fault between the motorist and the unknown owner or operator and assessed the motorist's damages. The trial court entered a $143,925 judgment for the motorist against his insurance carrier. Thereafter, the trial court determined that the jury's award for medical expenses exceeded the motorist's proof and suggested a $10,135.55 remittitur. The motorist accepted the remittitur under protest, and the trial court entered a $134,296.23 judgment for the motorist. On this appeal, the insurance carrier asserts that the motorist failed to prove that an unknown, uninsured motorist caused the rock to be in the roadway and that he had not been negligent in his efforts to locate the owner or operator of the dump truck. The motorist takes issue with the trial court's decision to suggest a remittitur. We have determined that the record contains sufficient evidence to support a judgment against the insurance carrier and that the trial court did not err by suggesting a remittitur.

I.

James Hindman, III was driving on Nolensville Road in Nashville on the morning of January 10, 2004. Although the road was not particularly crowded, traffic was moving approximately fifteen to twenty miles per hour below the speed limit. When the vehicle directly in front of him suddenly swerved to the left, Mr. Hindman looked to his right to see what the driver was trying to avoid. He observed a large pile of dirt on the paved shoulder of the road that extended to the white line on the roadway and possibly into the travel lane. As soon as Mr. Hindman looked back to the road in front of him, he observed a large rock—approximately two feet wide and just under two feet tall—in the lane in front of him. In the split second before impact, Mr. Hindman attempted to swerve to avoid the rock, but he was too late. His vehicle struck the rock. His front tire blew out, and a wheel broke and began digging into the asphalt roadway. Mr. Hindman's vehicle careened across the lane of traffic and into a ditch, flipped over, and barrel-rolled before coming to rest upside down.

Mr. Hindman was taken to the hospital where he was operated upon for approximately eight hours. The right side of his face, which had been torn from his scalp to his chin, was sutured. His ear was reconnected. A few weeks later he returned to the hospital for an operation to remedy a vision problem. One of Mr. Hindman's eyes was sinking into his sinus cavity causing him to suffer double division, dizziness, nausea, and headaches. Bone chips from the orbital plate that had fallen into the sinus cavity were removed. Unable to repair the bone structure itself, an artificial plate was implanted to cover the bottom part of the eye to prevent it from sinking. Mr. Hindman's medical expenses totaled $44,864.45.

In the days preceding the accident, Mr. Hindman had seen a three-axle white dump truck on the side of the road near the location of the pile of dirt and the large rock he struck. The truck was apparently disabled. Following the treatment for his injuries, Mr. Hindman attempted to find the owner of the dump truck because he believed that the rock he struck had come from the dump truck. After reviewing the police accident report, he focused his attention on W.L. Hailey & Company ("W.L.Hailey") and another construction company with a similar name. He retained an attorney who sent letters to both companies inquiring whether they owned the three-axle dump truck that had been observed on the side of the road. The companies responded that the dump truck was not theirs.

Mr. Hindman, who is a general contractor himself, continued to investigate. He learned that W.L. Hailey had been working on a sewer construction project in the area of the accident. He also knew that such projects required fill material and that rock and dirt were often used for fill material. Mr. Hindman personally went to W.L. Hailey's construction yard looking for a three-axle white dump truck similar to the one that had been parked on the side of the road. He did not find one.

Approximately five months after the accident, Mr. Hindman hired Integrated Resource Group ("IRG"), a private investigative agency, to identify the owner or operator of the white three-axle dump truck. He told IRG that he suspected that the dump truck belonged to W.L. Hailey or to one of W.L. Hailey's subcontractors. At a cost of thousands of dollars to Mr. Hindman, IRG interviewed more than forty witnesses during a sixteen-day investigation that stretched from May 3, 2004 to May 19, 2004. IRG also contacted Metro Water Services as part of its investigation but Metro Water Services was not helpful. IRG was also unable to determine to whom the dump truck belonged.

Mr. Hindman filed suit in the Circuit Court for Davidson County on August 12, 2004. He named as defendants the unknown driver and unknown owner of the dump truck. Because he was seeking to recover under his uninsured motorist coverage, he also named Progressive Insurance Company ("Progressive"), his automobile insurance carrier, as a defendant. In its answer, Progressive identified Specialty Risk Insurance Company ("Specialty") as its subsidiary that issued Mr. Hindman's uninsured motorist coverage.¹

The case was tried to a jury in January 2006. Mr. Hindman presented evidence to substantiate his claim that the large rock in the roadway had been dumped from the white three-axle dump truck and had subsequently rolled onto the roadway. He also put on evidence regarding his damages, as well as his efforts to identify the owner or operator of the white dump truck. Specialty elected not to present any evidence. The jury determined that Mr. Hindman was five percent at fault and that the unknown operator of the dump truck was ninety-five percent at fault. The jury also determined that Mr. Hindman had sustained $151,500 in damages, including $55,000 for the medical expenses he had incurred by the time of the trial. The trial court thereafter entered a $143,925 judgment for Mr. Hindman.

Mr. Hindman filed a motion for $2,919 in discretionary costs, and Specialty filed a post-trial motion seeking relief alternatively under Tenn. R. Civ. P. 50.02 and Tenn. R. Civ. P. 59.01. One of the grounds of Specialty's motion was that the jury's award of $55,000 for medical expenses exceeded Mr. Hindman's proof of damages. The trial court awarded Mr. Hindman $2,919 in discretionary costs and, following a hearing, denied Specialty's motion for a judgment in accordance with its motion for a directed verdict. The trial court also denied Specialty's motion for a new trial except for the award for medical expenses. The court determined that Mr. Hindman had proved only $44,864.45 in medical expenses and, therefore, suggested a $10,135.55 remittitur. Mr. Hindman accepted the remittitur under protest. On September 18, 2006, the trial court entered a $134,296.23 judgment for Mr. Hindman.

Specialty perfected an appeal. It asserts that Mr. Hindman did not submit sufficient evidence to permit the jury to find that the large rock that Mr. Hindman struck was in the roadway as the result of the negligence of an uninsured motorist. It also asserts that Mr. Hindman failed to present sufficient evidence demonstrating that he had not been negligent in his efforts to identify the owner or operator of the "phantom vehicle." For his part, Mr. Hindman takes issue with the trial court's suggestion of a $10,135.55 remittitur.

II.

Specialty's first argument is that Mr. Hindman failed to present sufficient evidence to enable the jury to conclude that the negligence of an uninsured motorist set in motion the chain of events that caused the large rock to be in the roadway. The argument is based on Specialty's belief that Tenn.Code Ann. § 56-7-1201(e)(1)(B) (2000) requires causation to be proved by clear and convincing evidence. Specialty's interpretation of the statute is incorrect. We have determined, using the correct standard, that Mr. Hindman presented sufficient evidence to enable the jury to conclude that the presence of the rock in the roadway was caused by the negligence of the unknown operator of the white three-axle dump truck.

A.

We turn first to Specialty's argument regarding Mr. Hindman's burden of proof. Citing Tenn.Code Ann. § 56-7-1201(e)(1)(B), Specialty insists that Mr. Hindman was required to present clear and convincing evidence regarding causation. While Tenn.Code Ann. § 56-7-1201(e)(1)(B) requires that the existence of the unknown motorist be established by clear and convincing evidence, the remainder of the claim need only be proved by a preponderance of the evidence. The Tennessee Supreme Court addressed this matter head-on ten years ago when it held that the clear and convincing evidence standard in Tenn.Code Ann. § 56-7-1201(e) "applies only to the existence of the unknown motorist, the other essential elements of the claim, including causation, may be established by the preponderance of the evidence." Fruge v. Doe, ...