Fault Allocation Against the Plaintiff and Its Impact on the Noneconomic Damages Cap

The adoption of the Tennessee Civil Justice Act of 20111 meant the words “noneconomic damages” formally entered the lexicon of Tennessee tort lawyers. The phrase has, of course, a comprehensive, statutory definition,2 but suffice it to say that “noneconomic damages” are awarded for human losses and do not include medical bills, lost earnings or earning capacity, or property damage.

The General Assembly determined, subject to eight exceptions,3 that the human losses in personal injury and wrongful death cases could not have a value of more than $750,000.4 Predictably, (a) the constitutionality of the limitation on the right to trial by jury is being challenged;5 and (b) the legislature is starting the process to amend the state constitution to specifically give it the power to limit the right of juries to award noneconomic or punitive damages.6

The jury is not told about the limitation on their traditional power.7 Instead, if the jury’s award exceeds the damages cap, the judge has the duty to reduce the award and enter a judgment for noneconomic damages that does not exceed the applicable cap.8

One question: If a plaintiff is found to be partially at fault for causing her injuries, should the trial judge apply the fault percentage to the noneconomic damages as determined by the jury before or after reducing the noneconomic damages to the capped amount?

An example will help explain the issue.  Assume Mary is severely injured in a truck crash. A jury determines her human losses are $1 million. No exception to the damages cap applies. She is found 10% at fault in causing the crash. Assuming the trial judge otherwise approves of the verdict, should she (a) apply the noneconomic damages cap, reduce the award to $750,000, then apply the comparative fault percentage and reduce it again by $75,000 (10% of $750,000) for the fault of the plaintiff, making the judgment for noneconomic damages $675,000; or (b) apply the fault percentage against the $1 million (reducing the award to $900,000) and then cut the award to the cap ($750,000)?

The difference? $75,000 at 10% fault, a differential that increases as the fault of the plaintiff increases. Under the hypothetical, Mary would receive $750,000 in noneconomic damages if the rule described in (b) was applied until her fault reached 25%. Between 26 and 49% fault, her recoverable noneconomic damages would fall below the cap of $750,000. For example, if Mary’s fault was 49%, her noneconomic damages recovery under the rule described in (b) would be $510,000. If the rule described in (a) was applied when Mary’s fault was pegged at 49%, her noneconomic damages recovery would be $382,500 — a difference of $127,500 as compared with her recovery under the rule as applied in (b).

The correct rule to apply under Tennessee law is (b) — the fault percentage is applied to noneconomic damages as awarded by the jury before further reducing the jury’s award to the mandated cap. The Tennessee Court of Appeals has held “that, 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.”9 This result is consistent with a prior holding addressing interaction of comparative fault and the caps imposed under the Governmental Tort Liability Act.10

True, the referenced Court of Appeals decision is unreported and only one court11 that faced the issue has cited it with approval. But, (a) it is all we have to work with at the present time; (b) the Court of Appeals said that it was following what it found to be the majority rule as applied in other states;12 and (c) the result appears just, at least to this admittedly biased observer.  



John A. Day is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. He wrote this column while watching the sun rise over the Atlantic Ocean in Juan Dolio, Dominican Republic, debating whether he should return to Middle Tennessee.  Good judgment did not prevail (again).


NOTES
1. 2011 Tennessee Laws Pub. Ch. 510.
2. Tenn. Code Ann. § 29-39-101(2).
3. If one of the four circumstances described in Tenn. Code Ann. § 29-39-102(d) occurs, Tenn.Code Ann. § 29-39-101(c) allows the cap on noneconomic damages to rise to $1,000,000. If one of the four scenarios described in Tenn. Code Ann. § 29-39-102(h) occurs, there is no cap on noneconomic damages.
4. Tenn. Code Ann. § 29-39-102(b).
5. The author is aware of at least one case working its way through the Tennessee Court of Appeals that will challenge the constitutionality of the cap on noneconomic damages. No appellate decision has, as of the date this column was written, addressed the substance of a constitutional challenge to the caps.
6. SBR0176 (by McNally) (“Authorizes the Legislature to limit the amount of noneconomic and punitive damages that may be awarded in civil actions and specifies that these limits do not diminish the right to trial by jury”).
7. Tenn. Code Ann. § 29-39-102(g).
8. Id.
9. Monypeny v. Kheiv, 2015 WL 1541333, *26 (Tenn. Ct. App. Feb. 24, 2015).
10. Lindgren v. City of Johnson City, 88 S.W.3d 581, 585 (Tenn. Ct. App.2002).
11. Kelley v. Apria Healthcare LLC, 2017 WL 2703520, *9 (E.D. Tenn. June 22, 2017).
12. Monypeny v. Kheiv, 2015 WL 1541333, *25 (Tenn. Ct. App. Feb. 24, 2015).

          | TBA Law Blog