New Made-Whole Decision

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.

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