Is Plaintiff’s Fault Percentage Applied Before or After Tort Reform Damage Cap?

The Court of Appeals recently released an extensive opinion in a Tennessee car accident case, full of issues regarding evidence and trial questions. Three of the findings in this opinion are critical for tort lawyers to familiarize themselves with: (1) that where there is evidence that a plaintiff could not see an approaching car, a directed verdict for the defendant was not negligent would not be appropriate; (2) that long-term care damages can be causally related to the accident and recoverable, despite the age of the plaintiff; and (3) that an award of non-economic damages should be reduced by any comparative fault finding before the statutory cap is applied.

In Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct App. April 1, 2015), a married couple who were 82 and 90 years old were driving in a vehicle that was struck by defendant. Evidence showed that prior to the accident, the husband and wife were both quite active and lived completely independently. Following the accident, however, the wife died a few months later in the hospital as a result of injuries sustained therein, and the husband went through the hospital, rehabilitation facility, and then an assisted living center, never able to live independently again. Plaintiffs filed suit for economic and non-economic damages, asserting that defendant’s driving caused the crash, while defendant responded that plaintiff husband (the driver at the time) was at fault. Because the driver of the other car was not insured, plaintiffs’ uninsured motorist carrier acted as defendant. At trial, the jury found for plaintiffs, and the Court of Appeals affirmed.

No Directed Verdict where there was Evidence that Plaintiff Could Not See Other Vehicle Approaching

The first issue addressed by the Court of Appeals was whether the trial court should have granted a directed verdict to defendant on the issue of fault. Plaintiffs’ theory of the case was that other driver, Kheiv, was speeding excessively and was passing another car on the right, and that Kheiv collided with plaintiffs’ vehicle as plaintiffs merged onto the highway. Defendant asserted, though, that “the Kheiv vehicle was ‘there to be seen’ and that [husband] apparently did not see the oncoming vehicle before proceeding onto Highway 64.” At trial, defendant argued: “This accident was going to happen…And it didn’t matter if Mr. Kheiv was going 65…or if he was going the speed limit. …Mr. Kheiv couldn’t miss [husband] in either scenario. This accident was going to happen.” Defendant’s essential argument was that husband was the proximate cause of the accident, as he did not see Kheiv coming, and thus despite any speeding on Kheiv’s part, a directed verdict was proper.

The Court of Appeals rejected this argument, noting that “a case should not be taken away from the jury even when the facts are undisputed, if reasonable persons could draw different conclusions from the facts.” (citation omitted). First, the Court pointed out that the case relied upon by defendant, Tennessee Trailways, Inc. v. Ervin, 438 S.W.2d 733 (Tenn. 1969), was decided under the old system of contributory negligence, so a finding of any fault on plaintiff’s part would have made it impossible for plaintiff to prevail. Under today’s comparative fault system, though, some fault on plaintiff’s part does not prevent recovery. Further, the Court distinguished the instant case because “there is evidence that [husband] may not have had the opportunity to observe the Kheiv vehicle as it approached from the west.” The Court pointed to testimony at trial that the Kheiv vehicle was swerving and that the collision occurred almost immediately upon the Kheiv vehicle passing another car on the right, meaning that husband would not have been able to see Kheiv approaching. Because there was evidence from which a jury could have found that husband could not have seen Kheiv, directed verdict was not appropriate in this case.

This was clearly the correct result. Whether the Kheiv car was driving in such a way that it appeared out of nowhere and collided with the plaintiffs was a central factual issue in this case; granting a directed verdict would have improperly taken this crucial question of fact away from the jury.

Long-term Expenses for Assisted Living Care were Causally Related to Accident

The jury awarded plaintiff husband damages, including expenses he incurred at an assisted living center to which he was eventually discharged. On appeal, defendant argued that these damages were improper because “plaintiffs failed to establish: (1) that the charges are ‘causally related to the automobile accident;’ and (2) that the expenses are ‘consistent with the customary and prevailing charges in the community for the same or similar services.’” Defendant essentially argued that due to the husband’s “advanced age and pre-existing conditions at the time of the accident, the requirement for assisted living was not causally related to the accident.” However, the Court pointed out that a defendant takes a plaintiff as he finds him, and that based on the testimony that husband lived independently before the accident but could not do tasks required by independent living and thus needed supervision after the accident, the jury could reasonably find that the assisted living expenses were a result of the accident. Despite the fact that these expenses continued for two years, evidence was presented that this level of care was necessary and the damages award was affirmed.

The Court also rejected defendant’s argument that plaintiff had to show that the charges were “reasonable and necessary when compared to other similar facilities in the community.” The Court held that the testimony of a licensed social worker who worked at the assisted living facility was sufficient regarding the reasonableness of the facility’s fees and expenses.

The Court clearly decided this issue correctly, as there is no time limit regarding how far into the future economic damages may be incurred. Here, husband’s manner of living and quality of life was greatly affected by the accident, and he never had need of assisted living before. The fact that he was 90 should not prohibit him from seeking damages for the long-term care the accident caused him to need. This case is one that plaintiffs’ lawyers should be aware of, as it is a good example of economic damages that are stretched over a longer period of time but still caused by the incident and, thus, recoverable.

Comparative Fault and Non-Economic Damages Cap

A third issue of note from this case is that defendant took issue with the way the trial court applied the comparative fault findings and statutory cap on non-economic damages. The jury found husband to be 15% at fault, so for the non-economic damages, the Court first reduced the award of $1,050,000 by 15% to $892,500, then applied the damages cap found in Tenn. Code Ann. § 29-39-102 to reduce the amount to $750,000. Defendant argued, though, that the cap should be applied first and then the $750,000 amount reduced by the 15% fault finding. The Court rejected this approach, stating that “[t]o apply the statutory cap before reducing the award by the percentage of fault—as [defendant] proposes—would undermine the authority of the jury and its role in the trial.” The Court noted that although Tennessee courts had not yet addressed this issue, other jurisdictions interpreting similar damages cap had almost all used the approach adopted herein. Accordingly, the Court held that “as a matter of law, in personal injury cases, the trial court should first reduce the jury’s award of non-economic damages by the percentage of comparative fault, and then, if the adjusted award is still above the statutory cap, the court should reduce the award further to comport with the cap.”

This was clearly the correct result. Reducing by a fault percentage before applying the cap would make no sense and would give defendants an unfair benefit. When this issue is eventually taken up by the Supreme Court, this is the approach they should adopt.