Posted by: John Day on Apr 24, 2020

Journal Issue Date: May 2020

Journal Name: Vol. 56 No. 5

An unusual case decided by the Court of Appeals presents an interesting mix of the law of comparative fault and the law of summary judgment: under what circumstances may a trial judge find a plaintiff 50% at fault as a matter of law and dismiss the case before trial?

The quick answer, of course, is that the trial judge must find that reasonable minds could conclude only that the plaintiff was 50 percent or more at fault when the evidence is looked at in the light most favorable to the plaintiff. A simple enough test, but of course it is too simple to be of much use. What evidence does the trial judge review to make that decision? And how does the judge weigh it?

Great American Ins. Co. v. Pilot Travel Centers LLC.1 provides some guidance on these issues. Great American is the subrogee of a trucking company. The trucking company was a customer of a financial network that, among other things, allows trucking companies to pay their employees via an instrument called a “Comchek” that was issued by an approved vendor. Defendant Pilot was such a vendor, and it was permitted to issue Comcheks to persons presenting an appropriate code. A rogue employee of the subrogor fraudulently caused numerous Comcheks to be issued by Pilot, which the employee promptly cashed at a Pilot truck stop. The loss: $368,050.55 in nine months.2

The trucking company filed suit against Pilot, arguing that it negligently failed to require the payee of the Comcheks to match the identification of the person seeking payment of the Comcheks. Great American later stepped into the trucking companies’ tires3 to serve as the plaintiff in the case.4 

Pilot sought summary judgment, arguing that Great American’s subrogor was no less than 50% at fault. It relied on 19 uncontested Tenn. R. Civ. P. 56.03 material facts, which supported its argument that the trucking company did not maintain proper financial controls, thus allowing the scoundrel to obtain the code necessary to cause the Comcheks to be issued. Great American responded with 27 uncontested material facts of its own, including this one: “If Trotter had presented a Pilot clerk with a Comchek printed in that particular Pilot store payable to ‘Mickey Mouse,’ it would be consistent with Pilot policy to allow Trotter to endorse that Comchek and negotiate that Comchek for cash in the Pilot store.”5 That statement was unchallenged by Pilot.

The trial court granted summary judgment for Pilot, referencing Pilot’s Rule 56.03 submission but not that of Great American, and holding that Great American’s subrogor was 50 percent or more at fault as a matter of law.6 The Court of Appeals reversed, indicating that (a) it was puzzled that the trial judge apparently only looked to the Rule 56.03 submission of Pilot and not that of Great American; (b) when Great American’s submission was considered (citing specifically to the “Mickey Mouse” statement quoted above) “reasonable minds could disagree as to whether Great American’s subrogor was 50% or more at fault.”7

So, what can the reasonably prudent tort lawyer take from this opinion? First, while a trial judge has the right to find as a matter of law that a plaintiff is 50% or more at fault, the judge must look at the entire record properly before the court before making that determination. Rule 56.03 statements were designed to make it easier for judges to determine whether a genuine issue of material fact exists by requiring the parties to highlight, with citations to the record, contested material facts. A judge cannot ignore a properly supported Rule 56.03 submission. 

Second, drafting Rule 56.03 submissions (and challenges to them) is a special skill. The lawyers on both sides of the “v” in this case did such an excellent job drafting their own submissions that the opponent could not challenge. Equally importantly, no lawyer attempted to muck up the record by making frivolous objections to his or her opponent’s submission, but rather pointed to other facts in the hope of creating a genuine issue. 

Third, the opinion reminds us that discovery tools can do more than just get a grasp on bare facts in the possession of the adverse party. Discovery, particularly depositions, are weapons that can be used to support or defeat dispositive motions or to win a case at trial. A Great American Insurance Company lawyer obtained admissions from a representative of Pilot that were not only legally significant but memorable (“Mickey Mouse!”) to defeat Pilot’s motion. Thoughtful deposition preparation wins cases. 

Finally, if there is undisputed evidence of fault of the plaintiff and defendant  in the record, it is still possible for a trial judge to dismiss the plaintiff’s case on summary judgment if she finds that, while reasonable minds may differ on whether the plaintiff’s fault is 50% or 90%, reasonable minds cannot differ that the fault of the plaintiff was at least 50%. No appellate decision in Tennessee has engaged in such analysis to date. 

JOHN A. DAY is a trial lawyer with offices in Brentwood, Murfreesboro and Nashville. He accepts the blame for bringing the substance of Rule 56.03 to Federal District Court for the Middle District of Tennessee during his service on the Court’s Civil Justice Reform Act Advisory Group, resulting in a local rule, which in turn resulted in uncontrolled spread of the rule to our state courts in 1997. He did not create the rule, but rather saw it referenced in a federal district court decision from a court somewhere in the Midwest. 


1. 2020 WL 1062966 (Tenn. Ct. App. Mar. 5, 2019).

2. Id. at *1-2.

3 Trucking companies do not have shoes; they have tires.

4. The opinion does not say this, but one assumes Great American paid a claim submitted by the trucking company for its losses and thereby acquired the right to seek recovery of its payment.

5. 2020 WL 1062966 at * 3.

6. Id.

7. Id. at *8.