STATUTE OF LIMITATIONS
- Personal Property3 YearsT.C.A. § 28-3-105
- Personal Injury/Death1 YearT.C.A. § 28-3-104
- Breach of Contract/Written6 YearsT.C.A. § 28-3-109(a)(3)
- Breach of Contract/Oral6 YearsT.C.A. § 28-3-109(a)(3)
- Breach of Contract/Sale of Goods4 YearsT.C.A. § 47-2-275
- Statute of Repose/Products10 YearsT.C.A. § 29-28-103
- Statute of Repose/Real Property4 YearsT.C.A. § 28-3-202
- Breach of Warranty/U.C.C.4 YearsT.C.A. § 47-2-725(1)
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If plaintiff is 10% at fault, 90% recovery. If plaintiff is 50% at fault, zero recovery.
Med Pay/PIP Subrogation
Med Pay:Yes. Hubble v. Dyer Nursing Home, 188 S.W.3d 525 (Tenn. 2006). Carrier entitled to reimbursement only if so provided for in policy. Subrogation is simplest when the policy provides for complete assignment of the insured’s claim against third-party tortfeasor. When the policy doesn’t accomplish insured’s entire claim against tortfeasor, the insurer has a right to reimbursement from any recovery the insured obtained in suit instituted by insured against tortfeasor and any subrogation agreement isn’t void as an unlawful assignment of a personal injury cause of action. Wilson v. Tenn. Farms’ Mut. Ins. Co., 411 S.W.2d 699 (Tenn. 1966).
The one year personal injury statute of limitations runs from the date of the insured’s accident. T.C.A. § 28-3-104 (2000).
PIP: Coverage not available.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
Tennessee adheres and subscribes to the Made Whole Doctrine. Wimberly v. American Cas. Co. of Reading, Pa., 584 S.W.2d 200 (Tenn. 1979); York v. Sevier County Ambulance Auth., 8 S.W.3d 616 (Tenn. 1999); Abbott v. Blount County, 207 S.W.3d 732 (Tenn. 2006). An insurer’s contractual right to subrogation and reimbursement are both subject to the Made Whole Doctrine. York, supra. The Supreme Court in Wimberly established that the right of an insured to be made whole before subrogation rights could be enforced could not be waived or modified by the insurance policy. Whether an insurer’s right of subrogation is contractual or equitable only comes into play to determine “whether there is a right of subrogation in the first instance, rather than in the enforcement of such right.” Id. While an insurer can not contractually modify the common law Made Whole Rule, a failure on the part of the insured to obtain contractually required permission of the insurer to a settlement preserves the latter’s subrogation rights even if the insured is not made whole. Eastwood v. Glens Falls Ins. Co., 646 S.W.2d 156, 158 (Tenn. 1983); Rader v. Traylor, No. 03A01-9403-CV-00079, 1994 Tenn. App. LEXIS 418, at *4-5 (Aug. 1, 1994). Thus, where the insurer does not participate in the settlement negotiations between its insured and the tortfeasor or does not waive any subrogation rights, such rights must be honored and the Made Whole Doctrine is inapplicable. This exception to the Made Whole Rule is subject to a further caveat which provides that if the parties agree that the insured has not been made whole or the underlying facts make clear that the recovery is for less than full compensation, the insurer’s subrogation claim is extinguished. Doss v. Tenn. Farmers Mut. Ins. Co., No. M2000-01971-COA-R3-CV, 2001 Tenn. App. LEXIS 906, at *10-11 (Dec. 10, 2001).
However, it is the insured in Tennessee who has the burden of proving that he is not made whole by a particular settlement or recovery. Hamrick’s, Inc. v. Roy, 115 S.W.3d 468 (Tenn. App. 2002); Nelson v. Innovative Recovery Services., Inc., 2001 WL 1480515 (Tenn. App. 2001) (unreported decision); Abbott, supra. An insured must be made whole for damages before an insurer is entitled to either subrogation or reimbursement, even if the insurer claims that it made a payment because it did not know of a third-party’s liability. Healthcost Controls, Inc. v. Gifford, 108 S.W.3d 227 (Tenn. 2003). This is true regardless of the language in the insurance policy. Id; Blount, supra. It is also true regardless of whether the insurer is asserting a right of subrogation or a right of reimbursement. Simpson v. Doe, 2006 WL 1627292 (Tenn. App. 2006). Whether an insured has been made whole is a matter of fact, upon which the insured has the burden of proof. Gifford, supra. Furthermore, whether or not an insured has been made whole must be determined by considering all benefits and recoveries received as a result of an incident. Id. Basically, this case means that if the insured recovers $100,000 and there is a lien of $101,000, it is not presumed that the insured has not been made whole. Instead, the court would say that the plaintiff suffered a minimum of $101,000 in damages but received $201,000 in compensation, improving the chances of recovery in spite of the made whole argument.
It should be noted that where an insured settles directly with a tortfeasor, with full knowledge of an insurer’s subrogation rights, and that settlement, together with the benefits paid under the insurance policy, do not make the insured whole, no subrogation will be allowed because the insured was not made whole. Wimberly, supra; Tennessee Farmers Mut. Ins. Co. v. Farmer, 1998 WL 695637 (Tenn. App. 1998) (unreported decision).In the absence of a judgment or jury verdict establishing a specific dollar value of each element of an injury, a court can make an equitable determination as to whether an injured party has been made whole. Farmer, supra. Ordinarily, the injured party may make such determination by settlement. Failing that, it may be made by the jury or by the judge. Id. In extraordinary circumstances, equity may intervene and make such a determination. Id.
In the absence of a judgment or jury verdict establishing a specific dollar value of each element of an injury, a court can make an equitable determination as to whether an injured party has been made whole. Id. Ordinarily, the injured party may make such determination by settlement. Failing that, it may be made by the jury or by the judge. Id. In extraordinary circumstances, equity may intervene and make such a determination. Id.
The Made Whole Doctrine applies in both legal and conventional subrogation or reimbursement disputes between insurers and their insureds. Gifford, supra; York, supra; Wimberly, supra. Thus, where the issue of whether the insured has been made whole is raised at the trial level the insurer’s subrogation claim is stayed until this issue is resolved.
Tennessee recognizes two methods for determining the subrogation rights of insurers in the context of statutory subrogation disputes. The primary objective of the court under both frameworks is to identify and give effect to the intent and purpose of the legislature. Blankenship v. Estate of Joshua, 5 S.W.3d 647, 651 (Tenn. 1999); Castleman v. Ross Eng’g, Inc., 958 S.W.2d 720, 724 (Tenn. 1997); Graves v. Cocke County, 24 S.W.3d 285, 289 (Tenn. 2000). Under one analysis, if the statute merely creates a subrogation right without embracing or abandoning the Made Whole Rule the court is prone to conclude that the legislature “intended for the statute to reflect the equitable principle that subrogation is subject to the Made Whole Doctrine.” Blankenship, supra. This method is based on the idea “that subrogation is founded upon principles of equity and ‘not dependent upon statute or custom or … contract.”’ Wimberly, supra. The second method is used when the statute provides an insurer with a statutory lien, such as in workers’ compensation. Pursuant to this analysis, a statutory lien is not subject to the equitable requirement that the insured be made whole. Castleman, supra.; Graves, supra.
In Abbott, the Tennessee Supreme Court determined that insurers may not bind the insured’s rights to settlements by using artful contract terms because “[c]ontract 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.” Abbott, supra.
Economic Loss Doctrine
Majority Rule. In a contract for the sale of goods where the only damages alleged are damages to the product itself, the rights and obligations of the buyer and seller are governed exclusively by the contract. Trinity Indus., Inc. v. McKinnon Bridge Co., Inc., 77 S.W.3d 159 (Tenn. Ct. App. 2001). Tennessee accepts the ELD as a “crude proxy” for the dividing line between what is tort and what is not. The Tennessee Supreme Court decided a case involving a farmer who had used a product on tomato plants in attempt to protect plants from frost damage, resulting in economic loss in the form of lost profits due to damage to the tomatoes. Because the plaintiffs sued for “lost profits” instead of damage to the tomatoes, the Court held they could not proceed on tort theories – only warranty and contract. Ritter v. Custom Chemicides, Inc., 912 S.W.2d 128 (Tenn. 1995). In Ritter, the door appears to have been left open to pursue a tort action for damages to the product only when “the plaintiff has been exposed to an unreasonable risk of injury to his person or his property” as opposed to mere failure of the product to perform as expected. However, the Tennessee Supreme Court more recently announced that Tennessee does not adopt exceptions for unreasonably dangerous products or sudden, calamitous events. Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., 293 S.W.3d 487 (Tenn. 2009).
According to a U.S. Federal District Court, a tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Tate v. Trialco Scrap, Inc., 745 F.Supp. 458, 467 (M.D. Tenn. 1989) (subrogation was denied because the lease required the lessor to purchase insurance coverage on the building). In 2007, in an unreported decision (limited precedential value) the Tennessee Court of Appeals has decided that the case-by-case review of the lease terms to determine the intent and expectations of the parties is not the best approach, and has indicated that absent an express agreement to the contrary, a tenant should be considered a co-insured under the landlord’s property casualty insurance policy, and the insurance carrier should therefore be precluded from asserting subrogation rights against the tenant. Dattel Family Limited Partnership v. Wintz, 250 S.W.3d 883 (Tenn. App. 2007).
Adverse Inference: The Doctrine of Spoliation Of Evidence permits a court to draw a negative inference against a party that has intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed evidence. Foley v. St. Thomas Hosp., 906 S.W.2d 448, 453-54 (Tenn. Ct. App. 1995); Bronson v. Umphries, 138 S.W.3d 844, 854 -855 (Tenn. Ct. App. 2003).
Liability is imposed on the parent when child willfully or maliciously injures person or property. Child must be under 18-years-old. Cap on damages does not apply when parent knows, or should know, of child’s propensity to commit injurious acts. The parent’s liability is limited to $10,000, unless propensity to commit injurious acts. T.C.A §§ 37-10-101 and 37-10-103.
Pure Several Liability. Joint tortfeasors have right of contribution, unless intentional. Contribution action can be brought in original action or in a separate action. T.C.A. § 29-11-102; McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The statute of limitations is one year after payment (judgment or settlement). Security Fire Protection v. City of Ripley, 608 S.W.2d 874 (Tenn. App. 1980).