The Tennessee Supreme Court today issued an opinion regarding whether or not an injured party has been made whole in a non-ERISA subrogation case. It's the second time the Court has had an opportunity to visit this case, to wit: Health Cost Controls Inc. v. Gifford, No. W2005-01381-SC-R11-CV (Tenn. S. Ct. Oct. 17, 2007) ("Health Cost Controls II").
Here's the link to the case:
The last paragraph of Health Cost Controls II sums it up and states:
We conclude that the trial court erred in its computation of Gifford's total recovery by failing to consider Gifford's recovery from all sources. We further conclude that the record is insufficient to determine whether Gifford has been made whole. On remand to the trial court, both parties will be permitted to present evidence. Gifford will have the burden of presenting evidence that sufficiently enables the trial court to make a reasonable assessment of his damages. The trial court will determine the monetary value of Gifford's recovery from all sources and the monetary value of all elements of Gifford's damages. Finally, if the trial court finds that Gifford has been made whole, reimbursement should be awarded to HCC only to the extent that Gifford's total recovery exceeds his total damages....
Id., slip op. at 6 (emphasis added).
The Court took issue with the fact that the trial court ignored Mr. Gifford's non-economic damages; it pointed out that the trial court should have calculated Mr. Gifford's non-economic damages "'as certain as the nature of the case permits'" Id., slip op. at 5-6 (quoting Overstreet v. Shoney's Inc., 4 S.W.3d 694, 703).
(By the way, Overstreet is a "must-read" case authored by Justice Koch when he was on the Court of Appeals.)
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