Mar 14, 2016 — STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. ROBERT BLONDIN. Appeal from the Circuit Court for Rutherford County.

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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs July 07, 2015 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. ROBERT BLONDIN Appeal from the Circuit Court for Rutherford County No. 66926 Robert E. Corlew, III, Judge ________________________________ No. M2014 – 01756 – COA – R3 – CV Filed March 14, 2016 _________________________________ Automobile insurance company brought action to recover from the defendant payments made under the policy to its insured and her passenger for personal injuries a nd property damage resulting from an automobile accident between the insured and the uninsured Judgment was entered in favor of company in the amount of $ s apportionment of 20% fault to the policy holder. Defendant appeals the denial of his motion to dismiss, the award of damages, and the allocation of fault. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part and Affirmed in Part; Remanded R ICHARD H. D INKINS , J., delivered the opinion of the court, in which F RANK G. C LEMENT , J R ., P.J., M. S., and W. N EAL M C B RAYER , J. joined. Kerry Knox, Murfreesboro , Tennessee, for the appellant, Robert Blondin. John R. Cheadle, Jr. and Mary Barnard Cheadle, Nashville , Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company. OPINION I. F ACTUAL AND P ROCEDURAL H ISTORY This appeal ha s its genesis in a civil warrant filed on May 17, 2010 by State Farm Mutual Automobile I to recover amounts paid to its insured and Lisa Martin , a passenger in the car being driven by Ms. Rone, under the uninsured motorist ;

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2 terms . The claim had been filed by Ms. Rone as a result of a two – vehicle accident she had on July 7, 2009 , the daughter o f R ob ; at all times material the Blondin s w ere uninsured . Ms. Rone sustained damage to the front right side and was not driveable. B oth she and Ms. Martin were transported from the scene by ambulance to a nearby hospital , t reated , and released . Ms. Rone subsequent ly received p hysical therapy and chiropractic care ; Ms. Martin also received chiropractic care . On May 17, 2010, State Farm filed a civil warrant in Rutherford County General Sessions Court against Robert Blondin. The warrant rec ited that State Farm brought the the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $7,371 .22, plus pre – On July 15 , State Farm filed a motion to amend the warrant to state the following: Rone, cause d by the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $24,999.99, plus pre – judgment interest, court cost and private process server fees. Attached are medical bills pursuant to T.C.A. § 24 – 5 – 113. Th e motion was heard in general sessions court on July 16; the judge wrote on the 1 On February 3, 2011, f ollowing an unsuccessful attempt to appeal the denial of the motion to amend to circuit court, State Farm filed a motion to remove the case to circuit court; this motion was denied on March 18 , and t he case was set for trial on May 20. When the case came on for trial , State Farm voluntarily dismissed the ca se without prejudice. State Farm refiled the action in general sessions court on January 31, 2012. This time, the warrant stated that suit was brought: Jenny R. Rone , caused by negligence of the defendant(s). The date of loss was July 7, 2009. The amount of damages totaled $7,371.22, plus pre – judgment 1 On August 3 the court entered a separate order reiterating the notations which were hand – w ritten on the motion.

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3 interest, court costs and private process server fees. Any applicable medical bills are attached pursuant to T.C.A. § 24 – 5 – 113. [ 2 ] In due course, Mr. Blondin moved to dismiss the action on the grounds that the action: . . . was not re – filed within one year of the prior dismissal or re – filed within the three year statute of limitations period for torts involving property damage. Likewise, Plaintiff appears to be suing for personal injury, which claim is well past the one year sta tute of limitation, and it is worth noting that the personal injury claim was never part of the prior lawsuit, as this Court disallowed On August 16, 2013, a hearing was held and the case di smissed with prejudice . On August 21, State Farm appealed t o the circuit c ourt and subsequently filed an A mended C omplaint for Damages seek ing $44,124.57 in damages. 3 Mr. Blondin moved to dismiss the c laim for personal injury as barred by the statute of limitations. The motion was denied , and the cas e proceeded to trial, resulting in a judgment for State Farm in the amount of $20,575.00, which was reduced by 20% to $16,460.00 upon the determination that M s. Rone was 20% responsible for the accident. Mr. Blondin appeals , raising the following issues: 1. Whether the trial court erred in awarding damages for medical bills when State Farm failed to offer competent medical proof of the reasonableness and necessity of treatment. 2. Whether the trial court erred i n awarding uninsured motorist damages against Mr. Blondin when State Farm failed to offer the basis for the damages. 3. Dismiss e barred. 4. Whether the trial court erred in its allocation of fault. 2 3 Attached as an exhibit to the Amended Complaint was a list of medical and other expenses paid by State Farm.

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4 I I. A NALYSIS A. Motion to Dismiss We first address the issue of whether the trial court erred by denying – What we perceive to be the actual issue, however, is whether the January 31, 2012 warrant, which State Farm filed after nonsuiting the prior warrant , properly stated an additional claim for personal injuries. 4 Personal injury actions have a one – year sta tute of limitations, while actions for injury to property have a three year statute of limitations. Tenn. Code Ann. §§ 28 – 3 – 104(a)(1), – 105. Brown v. Erachem Comil og , Inc ., 231 S.W.3d 918, 921 (Tenn. 2007) (citing Owens v. Truckstops of Am ., 915 S.W.2d 420, 424 (Tenn. 1996)) . The court reviews legal issues under a de novo standard for review, according no deference to the conclusions of law made by the lower court. T oms v. Toms, 209 S.W.3d 76, 79 (Tenn. Ct. App. 2005). State Farm did not assert a cause of action for personal injuries in the first warrant it filed in general sessions court; the claim was not made until after the applicable statute of limitations , Tenn. Code Ann. § 28 – 3 – 104, h ad run. The general sessions court properly denied the attempt to add the cause of action to recover for personal injuries as barred by the statute of limitations . The later action of State Farm in voluntarily dismissing and subsequently refiling the action could not serve to expand the subject matter jurisdiction of the general sessions court to hear a claim barred by the statute of limitations. State Farm argues that it was entitled to amend its warrant because pleading s in general sessions court are not required to be in writing ; citing language in Ware v. Meharry Medical College , 898 S.W.2d 181 (Tenn. 1995), State Farm asserts that the general sessions court erred in failing to apply Tenn. Code Ann. § 16 – 15 – 729 5 to all ow the amendment to the 4 Though State Farm attempted to amend the warrant to add a cause of action for personal injuries shortly after the statute of limitations ran, the general sessions court denied the motion , stating in an order that from the face of the Civil Warrant that the accident givi ng rise to the claim for personal injury occurred more than one year prior to the filing of the Motion to Amend such claim . . . [which] has not been filed within the 5 Tenn. Code Ann. § 16 – 15 – 729 reads in full: No civil case, originating in a general sessions court and carried to a higher court, shall be

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5 warrant. We do not agree. Neither the statute nor the language in Ware stands for the proposition that an action which is barred by the statute of limitations in the general sessions court may be made timely as a result of an appeal from the general sessions court to the circuit court. In this case, the statute of limitations operated to deprive the general sessions court of subject matter jurisdiction to hear the claim for personal injuries; the appeal to the circuit court co uld not extend the statute o f limitations applicable to that claim and confer subject matter juris diction on the circuit court. 6 Neither is State Farm assisted by Tenn. R. Civ. P. 15.01 and 15.03. 7 The T ennessee Rules of Civil Procedure re in the circuit or chancery courts in all civil actions . . . and in all other courts while exercising the civil jurisdiction of the circuit or sessions court, except in those instances where that court exercises equivalent jurisdiction to Vinson v. Mills , 530 S.W.2d 761, 765 (Tenn. 1975) ; see also Brown v. Roland , 357 S.W.3d 614, 618 (Tenn. 2012) . On a case appealed from general sessions court, the Rules of Civil Procedure do not operate to Tenn. Code Ann. § 28 – 1 – 105, permit ted State Farm to re file the previous action filing of the lawsuit to toll the statute of limitations , dismissed by such court for any informality whatever, but shall be tried on its merits; and the court shall allow all amendments in the form of action, the parties thereto, or the statement of the cause of action, necessary to reach the merits, upon such terms as may be deemed just and proper. The trial shall be de novo, including damages. 6 Given the timeline of this case, if the warrant ori ginally filed in general sessions court had sought to recover only for personal injuries, there would have been no impediment to the amendment to add a claim for property damage either in general sessions court or when the case was appealed to circuit cour t. 7 Tenn. R. Civ. P. 15.01 provides in relevant part : responsive pleading is served or, if the pleading is one to which no responsive pleadi ng is permitted and the action has not been set for trial, the party may so amend it at any time within 15 days after it is served. written consent of the adverse party or by leave of court; and le ave shall be freely given when justice so requires. When the matter pled in an amendment falls outside the applicable statute of limitations, Tenn. R. Civ. P. rose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the

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6 for personal injuries. an action within the applicable statute of limitations to nonsuit the cause of action and refile it in the trial court within one year of the order of dismissal. Crowley v. Thomas , 343 S.W.3d 32, 34 – 35 (Tenn. 2011) (citing Frazier v. E. Tenn. Baptist Hosp., 55 S.W.3d 925, 927 – 28 (Tenn. 2001); Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995)). This is not the situation presented here. to recover damage s for perso nal injur ies. Our decision in this regard pretermits a consideration of the i ssues pertaining to payments made for medical treatment. B . Allocation of Fault of fault of 80 percent to Ms. Blondin and 20 percent to Ms. Rone. He contends that Ms. /50, which he comparison and allocation of fault is a question of fact to be decided by the finder – of – fact, that is the jury or the trial court sitting without a jury. Henley, 2002 WL 100402, at *6 ( citing Brown v. Wal – Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000); Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997); Prince v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996) ) . he de novo standard of review in Rule 13(d) is the applicable standard of appellate review for findings Cross v. City of Memphis , 20 S.W.3d 642, 645 (Tenn. 2000) . Thus, our review centers on whether the evidence preponderates against the factual findings of the trial court; to do so, we determine whether the evidence support s another finding of fact with greater convincing effect. N w . Tennessee Motorsports Park, LLC v. Tennessee Asphalt Co. , 410 S.W.3d 810, 816 (Tenn. Ct. App. 2011) (c iting Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)) . The trial court found as follows: Upon consideration of all of the testi mony, the evidence shows that the daughter of the Defendant substantially contributed to the cause of the accident. Her travel was subject to a traffic control device, a stop – sign. Under the law, this sign placed on her a duty not to enter the intersecti on until she could do so with safety. The law also places on Ms. Rone and duty to observe that which was there to be seen and to take reasonable steps to avoid another

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