New Tennessee Supreme Court Opinion: Mary Carter Agreements, Remittitur & Causation

The Tennessee Supreme Court recently issued its opinion in Borne v. Celdaon Trucking Services, Inc., No. W2013-01949-SC-R11-CV (Tenn. Oct. 20, 2017).  The syllabus from the slip opinion states as follows:

This appeal arises out of sequential rear-end collisions involving three tractor trailer vehicles. The plaintiff’s tractor trailer was rear-ended by a tractor trailer owned by the defendant, which was in turn rear-ended by a third tractor trailer. The plaintiff sued the owners and drivers of both of the other tractor trailers, seeking compensation for personal injuries. Before trial, the plaintiff entered into an agreement with the owner of the third tractor trailer that neither would take any action adverse to the other and that the owner of the third tractor trailer would only owe the plaintiff half of any judgment entered against it. The owner of the third tractor trailer was later dismissed on a directed verdict. The jury returned a verdict for the plaintiff against the defendant. The trial court denied the defendant’s motion for new trial and, with little explanation, also suggested a remittitur of the jury’s verdict in all four categories of damages awarded. After the defendant appealed, the Court of Appeals affirmed the trial court’s rulings regarding the pretrial agreement between the plaintiff and the owner of the third tractor trailer. Regarding the trial court’s remittitur, the Court of Appeals reinstated the jury’s award for lost earning capacity, suggested a further remittitur to the award for loss of enjoyment of life, and affirmed the remitted award in the remaining two categories of damages. On appeal, we affirm the trial court’s rulings regarding the pretrial agreement. We find no error in the trial court’s decision not to give the jury a special instruction on superseding cause. We hold that the Court of Appeals had no authority to suggest a further remittitur absent a finding that the jury’s award—as remitted by the trial court—exceeds the uppermost boundary of the range of reasonableness under the evidence at trial, and so we reverse the Court of Appeals’ remittitur of the award for loss of enjoyment of life. As to the trial court’s remittitur, in view of the sharply conflicting evidence on the plaintiff’s damages, the trial court’s failure to indicate the reasons for its suggested remittitur leaves us unable to determine whether the evidence preponderates against the remittitur and, consequently, unable to conduct a proper appellate review of the trial court’s remittitur decision. Accordingly, we remand the case to the trial court for explanation of its reasons for suggesting remittitur of the jury’s award. For the same reason, the Court of Appeals was without sufficient information to perform a meaningful review of the trial court’s suggested remittitur, so we vacate the Court of Appeals’ decision to reverse the trial court’s remittitur of the award on lost earning capacity. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/borne.donriel.opn_.pdf

Justice Lee wrote a separate opinion in which she concurred in part and dissented in part, to wit:

https://www.tncourts.gov/sites/default/files/borne.donriel.sep_.opn_.pdf

NOTE: Like all opinions from the Tennessee Supreme Court this one is a must-read opinion.