Day on Torts

The Tennessee Supreme Court has released its opinion in Health Cost Controls, Inc. v. Gifford,  No. W2005-01381-SC-R11-CV  (Tenn. S. Ct. Oct. 17, 2007).  If the style of this case sounds you familiar you are not losing your mind - this case was before the Supreme Court  on the made-whole four years ago earlier.

This time the case was before the court on the issue of whether the plaintiff was made-whole.  The Supreme Court said this about the responsibilities of lawyers and judges in resolving this important issue in any particular case:

Trial courts should support their made-whole determinations with specific findings of fact regarding the monetary value of the injured party’s recovery from all sources and the monetary value of the injured party’s total damages. Furthermore, trial courts should make specific findings as to the value of each separate element of an injured party’s damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party’s total recovery exceeds the injured party’s total damages. These requirements are necessary to ensure that the made-whole doctrine is consistently applied and to facilitate appellate review of made-whole determinations.

How much proof do you need on issues of pain, suffering, loss of enjoyment of life, disfigurement, and impairement?  The court said this:

[W]e conclude that for purposes of the made-whole doctrine it is sufficient for an injured party to present evidence of non-economic damages that is “as certain as the nature of the case permits” and that “enable[s] the trier of fact to make a fair and reasonable assessment of the damages.” Overstreet, 4 S.W.3d at 703.

Of course.   You just prove the value of your client's case.    You use evidence.  And you put that evidence in the record.  Then you help your trial judge reach a decision that is sufficiently documented in the record so that an appellate court can review the decision under the appropriate standard of appellate review.  Just like you do in any case.

It is as simple as that.

Read the opinion here.

This decision from a federal judge in Pennsylvania will cause excitement throughout the tort bar:  he ruled for a plaintiff who worked to  protect assets from a claimed ERISA subrogation interest by having the proceeds of a settlement go from the defendant to a special needs trust.

Law.com  published this article about the decision from Judge John P. Fullam.  The article does a nice job of explaining the articles put forward by all parties.

If you want to read the full decision in Mills v. London Grove Township, 2005-00122 (July 19, 2007), click here.

The Tennessee Supreme Court issued an opinion yesterday in the Abbott v. Blount County, Tennessee case.

In an opinion by now retired Justice Al Birch, the Court made it crystal clear that an insurance company could not require a plaintiff to get approval of plaintiff's health insurance company before settling a personal injury suit.  The Court said that it is  "clear that the made-whole doctrine applies regardless of the language found in the insurance contract. Contract terms that require the consent of the insurer would allow the insurer to withhold consent from any settlement that does not make the insured whole and thereby compel the insured to seek a larger award at trial. We disapproved of allowing insurers to contract away the right to be made whole in York, and we do so again today. Finally, we note that the lack of an insurer’s consent does not make an insured more likely to receive a double recovery."

The Court said that there was a genuine issue of material fact about whether the plaintiffs were made whole.

The Court also said that "if Blount County had knowledge of the Abbotts’ lawsuit and settlement negotiations but did not intervene or warn the insured that Blount County’s subrogation rights could affect the Abbotts’ recovery, then Blount County will be deemed to have waived those rights. However, the facts concerning whether Blount County had notice of the lawsuit and settlement negotiations are disputed, and, thus, we affirm the Court of Appeals’ holding that summary judgment as to this issue is inappropriate."

The cite to the Abbott case is No. E2004-00637-SC-R11-CV ; it was filed on November 7, 2006.  Read the opinion here.

Two points.  First, note that this case is governed by state law, not ERISA.  ERISA is a much different breed of cat.

Second, this opinion points out the need for the plaintiff to prove that he or she was not made whole.  It is not enough to say "look how bad I am hurt" or "See how much my medical bills are."  The plaintiff must introduce evidence from which the value of the case can be determined.  Evidence.  Real evidence.  Just like you use in court.  Oh, that's right, we are talking about court. 

For example, in our recent hearing on this subject, the insurer stipulated to the medical bills and records.  The insurer also stipulated that the judge could draw reasonable conclusions from the records about the permanency of the injuries (to avoid the cost of taking medical depositions).  We had a nurse testify about the medical treatment of each client.  We used illustrations - no reason a nurse cannot testify as to the accuracy of those.  We had our clients testify.  The total testimony was under 90 minutes.