                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0280p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 TAMARIN LINDENBERG, individually and as natural          ┐
 guardian of her minor children ZTL and SML,              │
                    Plaintiff-Appellee/Cross-Appellant,   │
                                                          │
                                                          │
        v.                                                 >     Nos. 17-6034/6079
                                                          │
                                                          │
 JACKSON NATIONAL LIFE INSURANCE COMPANY,                 │
                                                          │
                 Defendant-Appellant/Cross-Appellee,      │
                                                          │
                                                          │
 STATE OF TENNESSEE,
                                                          │
                                  Intervenor-Appellee.    │
                                                          ┘

                          Appeal from the United States District Court
                       for the Western District of Tennessee at Memphis.
                    No. 2:13-cv-02657—Jon Phipps McCalla, District Judge.

                                      Argued: May 3, 2018

                             Decided and Filed: December 21, 2018

                  Before: CLAY, STRANCH, and LARSEN, Circuit Judges.
                                  _________________

                                           COUNSEL

ARGUED:         Gadson W. Perry, BUTLER SNOW LLP, Memphis, Tennessee, for
Appellant/Cross-Appellee. Molly A. Glover, BURCH, PORTER & JOHNSON, PLLC,
Memphis, Tennessee, for Appellee/Cross-Appellant. Joseph Ahillen, OFFICE OF THE
ATTORNEY GENERAL OF TENNESSEE, Nashville, Tennessee, for Intervenor Appellee. ON
BRIEF: Gadson W. Perry, Daniel W. Van Horn, Michael C. McLaren, BUTLER SNOW LLP,
Memphis, Tennessee, for Appellant/Cross-Appellee. Molly A. Glover, Charles S. Higgins,
BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee, for Appellee/Cross-Appellant.
Joseph Ahillen, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE, Nashville,
Tennessee, for Intervenor Appellee.
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 2


        CLAY, J., delivered the opinion of the court in which STRANCH, J., joined, and
LARSEN, J., joined in part. LARSEN, J. (pp. 26–47), delivered a separate opinion concurring in
part and dissenting in part.
                                            _________________

                                                  OPINION
                                            _________________

        CLAY, Circuit Judge.              Defendant Jackson National Life Insurance Company
(“Defendant”) appeals from the district court’s judgment enforcing a jury trial verdict of
$350,000 in actual damages, $87,500 in bad faith damages, and $3,000,000 in punitive damages
in favor of Plaintiff Tamarin Lindenberg (“Plaintiff”), individually and in her capacity as natural
guardian of her minor children, ZTL and SML.1 Plaintiff cross-appeals, challenging a statutory
cap that the district court applied to reduce the award of punitive damages to $700,000. The
State of Tennessee (“the State”) intervened to defend the statute. For the reasons that follow, we
AFFIRM the district court’s judgment on all issues raised in Defendant’s appeal, REVERSE on
the issue raised in Plaintiff’s cross-appeal, VACATE the judgment as to punitive damages, and
REMAND with instructions for the district court to recalculate the award of punitive damages in
accordance with the jury verdict and with this Court’s holding that the statutory cap on punitive
damages, T.C.A. § 29-39-104, is unconstitutional.

                                              BACKGROUND

        This case arises in diversity and concerns a dispute over a $350,000 life insurance policy
issued by Defendant to Thomas A. Lindenberg (“Decedent”). Plaintiff Tamarin Lindenberg, the
former wife of Decedent, brought suit individually and in her capacity as the natural guardian of
her minor children, ZTL and SML, the two children of Plaintiff and Decedent. Plaintiff’s claims
included breach of contract and both statutory and common law bad faith.

        Plaintiff is the primary beneficiary designated in the life insurance policy at issue (the
“Policy”) and was to receive 100% of the proceeds of the Policy upon Decedent’s death. The

        1During    the pendency of this lawsuit, Plaintiff’s minor child ZTL joined the suit as co-plaintiff after
reaching the age of majority. Because this change was otherwise immaterial to the proceedings, we refer in this
opinion to the parties as they were represented in the original complaint.
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                             Page 3


contingent beneficiaries of the Policy are Decedent’s “surviving children equally.” (R. 125 at
PageID #1854.) During their marriage, Plaintiff and decedent adopted ZTL and SML. Third-
Party Defendant Mary Angela Williams (“Williams”) is Decedent’s daughter from a prior
marriage.

         Plaintiff and Decedent executed a Marital Dissolution Agreement (“MDA”) in 2005, and
a divorce decree was issued in 2006. The MDA required that “Wife shall pay for the Life
Insurance premium for the Columbus and [Defendant] policies for so long as she is able to do so
and still support the parties[’] children.” (Trial Ex. 10 at 7.) Additionally, the MDA required
“Husband at his expense [to] maintain in full force insurance on his life having death benefits
payable to the parties’ children as irrevocable primary beneficiaries[.]” (Id. at 9.)

         Decedent died on January 22, 2013. On February 6, 2013, Plaintiff filed a claim under
the Policy for the death benefit. On March 11, 2013, Plaintiff’s attorney sent Defendant a letter
seeking expedited review of the claim and payment of the death benefit. On March 22, 2013,
Defendant responded with a letter requiring further action by Plaintiff, including obtaining
“waivers to be signed by the other potential parties” and “court-appointed Guardian(s) for the
Estates of the two minor children.” (Trial Ex. 23.) Defendant stated that another option would
be for Plaintiff to waive her rights to the claim so that Defendant could disburse the proceeds to
the minor children. Throughout the month of May 2013, Plaintiff and Defendant were in
communication about how to proceed and whether Defendant would interplead the funds with
the court. This discussion culminated in Plaintiff filing the instant lawsuit.

         With its answer, Defendant included an interpleader complaint that implicated Plaintiff
and Williams. Defendant later maintained that its interpleader complaint also implicated the
minor children, ZTL and SML.2 Defendant asserted that it was “not in a position to determine,

         2When   Plaintiff filed her original claim on the Policy, Defendant insisted that Plaintiff must obtain waivers
from Decedent’s children before the Death Benefit could be distributed. (See, e.g., R. 1-1 at PageID #9–10
(describing March 22, 2013, letter from Defendant to Plaintiff demanding “waivers for the minor children” and
“other children”).) However, Defendant’s interpleader complaint did not clearly implicate the minor children,
alleging only that Williams had an “actual or potential claim[].” (R. 4 at PageID #87 ¶ 20.) Defendant later
characterized its complaint as implicating the minor children when it opposed Plaintiff’s motion to dismiss the
interpleader complaint. (See R. 27 at PageID #195 (“[Defendant] has at all times during the course of this litigation
contended that interpleader is appropriate because [Defendant] is or may be exposed to multiple liabilities given the
actual or potential claims of [Plaintiff], her minor children, and/or Ms. Williams.”) (emphasis in original).)
 Nos. 17-6034/6079          Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 4


factually or legally, who is entitled to the Death Benefit,” and requested that the district court
“determine to whom said benefits should be paid.” (R. 4 at 7.)

          Plaintiff and Williams jointly moved to dismiss the interpleader complaint. While the
motion was pending, and after several months of litigation, the parties filed a joint motion to
appoint guardians ad litem for the minor children, which the district court granted. The court
then granted the motion to dismiss Defendant’s interpleader complaint.           The court further
ordered Defendant “to disburse life insurance policy benefits to Plaintiff in the amount of
$350,000 with interest from January 23, 2013, until the date of payment.” (R. 32 at 17.)
Plaintiff’s claims against Defendant remained.

          Defendant filed a motion to dismiss, attacking Plaintiff’s claims for punitive damages and
bad faith. Through a series of orders, the court granted in part and denied in part Defendant’s
motion. The court dismissed Plaintiff’s claims for common law bad faith. The court allowed
Plaintiff to proceed with her claims for common law breach of contract, statutory bad faith, and
common law punitive damages predicated on breach of contract.

          Following discovery, Defendant filed for summary judgment. The district court denied
the motion on all claims Plaintiff asserted in her personal capacity but granted the motion on all
claims Plaintiff asserted on behalf of the minor children, ZTL and SML. The court held a
weeklong trial. Defendant moved for judgment as a matter of law, which the district court
denied.     The jury returned a verdict finding that (1) Defendant breached its contract with
Plaintiff, resulting in actual damages in the amount of $350,000; (2) Defendant’s refusal to pay
was in bad faith, resulting in additional damages in the amount of $87,500; and (3) Defendant’s
refusal to pay was either intentional, reckless, malicious, or fraudulent. The jury then returned a
special verdict awarding Plaintiff punitive damages in the amount of $3,000,000. Defendant
renewed its motion for judgment as a matter of law.

          Defendant also argued that the district court must apply T.C.A. § 29-39-104, a Tennessee
statute that caps punitive damages at two times the amount of compensatory damages awarded or
$500,000, whichever is greater. In response, Plaintiff argued that the statutory punitive damages
cap violates the Tennessee Constitution. On this basis, Plaintiff filed a motion to certify the issue
 Nos. 17-6034/6079        Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 5


of the punitive damages cap’s constitutionality to the Tennessee Supreme Court. The State of
Tennessee then moved to intervene, which the district court permitted. The district court agreed
to certify the following two questions to the Tennessee Supreme Court:

       1. Do the punitive damages caps in civil cases imposed by Tennessee Code
       Annotated Section 29-39-104 violate a plaintiff’s right to a trial by jury, as
       guaranteed in Article I, section 6 of the Tennessee Constitution?
       2. Do the punitive damages caps in civil cases imposed by Tennessee Code
       Annotated Section 29-39-104 represent an impermissible encroachment by the
       legislature on the powers vested exclusively in the judiciary, thereby violating the
       separation of powers provisions of the Tennessee Constitution?

(R. 188 at PageID # 4270.) The Tennessee Supreme Court recognized that the “certified
questions raise issues of first impression not previously addressed by the appellate courts of
Tennessee” but declined to provide an opinion on either of the certified questions. (R. 209-1 at
PageID #4916.)

       The district court then rejected Defendant’s renewed motion for judgment as a matter of
law, rejected Plaintiff’s constitutional challenge to the punitive damages cap, and entered
judgment.    In doing so, the court applied the statutory punitive damages cap to reduce
Defendant’s liability for punitive damages from $3,000,000 to $700,000. The parties filed
timely cross-appeals.

                                         DISCUSSION

       The parties challenge multiple aspects of the proceedings below. Defendant argues that
the district court erred by dismissing its interpleader complaint, failing to dismiss Plaintiff’s
punitive damages claim, and failing to grant its motion for judgment as a matter of law.
Meanwhile, Plaintiff argues that the statutory punitive damages cap, T.C.A. § 29-39-104,
violates the Tennessee Constitution. We address Defendant’s three arguments before turning to
Plaintiff’s argument.

       A. Dismissal of Defendant’s Interpleader Complaint

       Defendant first argues that the district court erred when it dismissed Defendant’s
interpleader complaint. “Interpleader is an equitable proceeding that ‘affords a party who fears
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                Page 6


being exposed to the vexation of defending multiple claims to a limited fund or property that is
under his control a procedure to settle the controversy and satisfy his obligation in a single
proceeding.’” United States v. High Tech. Prods., Inc., 497 F.3d 637, 641 (6th Cir. 2007)
(quoting 7 Charles Alan Wright, et al., Federal Practice and Procedure § 1704 (3d ed. 2001)).
Interpleader may be invoked either via Rule 22 of the Federal Rules of Civil Procedure (“rule
interpleader”) or via 28 U.S.C. § 1335 (“statutory interpleader”).         In this case, Defendant
attempted to invoke statutory interpleader.

       “An interpleader action typically proceeds in two stages.” High Tech. Prods., 497 F.3d at
641. “During the first stage, the court determines whether the stakeholder has properly invoked
interpleader . . . .” Id. In order to properly invoke statutory interpleader, a stakeholder must
satisfy the statutory jurisdictional requirements by properly pleading: (1) the existence of actual
or potential conflicting claims to a limited fund or property held by the stakeholder, 28 U.S.C.
§ 1335(a); see High Tech. Prods., 497 F.3d at 642; (2) an amount in controversy of at least $500,
28 U.S.C. § 1335(a); and (3) minimal diversity among the competing claimants. Id.; see State
Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530–31 (1967). “During the second stage, the
court determines the respective rights of the claimants to the fund or property at stake via normal
litigation processes, including pleading, discovery, motions, and trial.”       High Tech Prods.,
497 F.3d at 641.

       In this case, Defendant does not challenge the district court’s dismissal of its interpleader
complaint on the merits. Instead, Defendant asserts that the dismissal must be reversed because
the district court improperly relied on extrinsic evidence that “the guardians ad litem of the
minor children ha[d] waived any claim the remaining contingent beneficiaries—ZTAL and
SML—may have to the benefits.” (First Br. at 27.) We need not reach this issue, however,
because Defendant did not raise it below. See United States v. Huntington Nat’l Bank, 574 F.3d
329, 332 (6th Cir. 2009) (holding that an argument is preserved if a litigant (1) states “the issue
with sufficient clarity to give the court and opposing parties notice that it is asserting the issue”
and (2) provides “some minimal level of argumentation in support of it”).
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 7


       In fact, rather than challenging the waivers as extrinsic evidence, Defendant invited the
district court to consider the waivers. Defendant discussed the waivers at length in its opposition
to Plaintiff’s motion to dismiss, arguing that the waivers were inadequate for substantive reasons:

       The Court should likewise reject [Plaintiff]’s contention that [Defendant]’s refusal
       to distribute the benefits is improper in light of the affidavits and waivers that
       have been submitted on behalf of the minor children. Though the appointed
       guardians have submitted their own affidavits and waivers on behalf of the minor
       children, these “reports” have not been approved by the Court as required by
       statute. Thus, because [Defendant] is not aware of any authority that would confer
       the guardians with the inherent and independent ability to lawfully waive the
       minor children’s rights to the benefits, [Defendant] cannot disburse the benefits
       directly to [Plaintiff] without further approval from this Court. Accordingly,
       [Defendant] respectfully requests permission to interplead the life insurance
       benefits and that it be relieved from further liability with respect to this matter
       because [Defendant] has pled sufficient facts evidencing “two or more” potential
       adverse claims to the benefits.

(R. 27 at PageID #195–96; see also id. at PageID #204–06.)                Furthermore, Defendant
specifically asked the district court to dismiss its interpleader complaint if the court found the
waivers to be valid:

       Alternatively, if the Court finds that the best interests of the minor children have
       been served and that . . . the minor children have lawfully waived any potential
       claim to the life insurance benefits, [Defendant] requests that the Court exercise
       its discretion under Tennessee Code Ann. § 34-1-121 to approve [Defendant]’s
       disbursement of the life insurance proceeds to [Plaintiff] and dismiss its action for
       interpleader because all of the potentially adverse interests have been waived.

(R. 27 at PageID #196.) We decline to consider Defendant’s complaints about an analysis and
an outcome that Defendant itself requested. See United States v. Hanna, 661 F.3d 271, 293 (6th
Cir. 2011) (holding that an invited error does not warrant reversal).

       B. Plaintiff’s Punitive Damages Claim

       Defendant next argues that the district court should have dismissed Plaintiff’s claim for
punitive damages in its entirety rather than allowing the claim to proceed to the extent that it was
based on breach of contract. This Court reviews de novo the district court’s dismissal of a
complaint for failure to state a claim. Ass’n of Cleveland Fire Fighters v. City of Cleveland,
502 F.3d 545, 548 (6th Cir. 2007). We must accept the factual allegations in the complaint as
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                 Page 8


true and construe the complaint in the light most favorable to the plaintiff. Hill v. Blue Cross
& Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005).

       Defendant argues that the district court’s denial of its motion to dismiss runs afoul of this
Court’s decision in Heil Co. v. Evanston Insurance Co., 690 F.3d 722 (6th Cir. 2012). In Heil,
an insurer refused to defend Heil for the first two years of a wrongful death suit before
eventually taking over the defense. Id. at 726. Heil then sued for breach of contract due to the
failure to pay attorney fees, violation of the bad faith statute, and bad faith failure to settle. Id.
A jury found in Heil’s favor on the first two of the three claims and awarded punitive damages.
Id. This court found clear error, holding that the statutory remedy for bad faith is the “exclusive
extracontractual remedy for an insurer’s bad faith refusal to pay on a policy.” Id. at 728.
Therefore, under Heil, punitive damages—whether predicated on bad faith, breach of contract, or
any other type of claim—may not be awarded in a case involving an insurer’s bad faith refusal to
pay. Id.

       If Heil remains good law—which Plaintiff disputes—then the district court should have
dismissed Plaintiff’s claim for punitive damages in its entirety. Defendant invokes the general
rule that, “[a] panel of this Court cannot overrule the decision of another panel.” Salmi v. Sec’y
of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). But this rule “is not absolute.”
Hampton v. United States, 191 F.3d 695, 701 (6th Cir. 1999). An inconsistent decision from the
Supreme Court or from this Court sitting en banc “overrules the prior decision.” Salmi, 774 F.2d
at 689 (quoting Gist, 736 F.2d at 357–58). Similarly, an interpretation of Tennessee law applied
by one panel of this Court is not binding on future panels where there has been “an indication
from the Tennessee courts that they would have decided [the prior decision] differently.”
Hampton, 191 F.3d at 701 (alteration in original) (quoting Blaine Constr. Corp. v. Ins. Co. of N.
Am., 171 F.3d 343, 350–51 (6th Cir. 1999)). In Hampton, we found that a single decision of a
state court of appeals may abrogate this Court’s interpretation of state law, at least in
circumstances where (1) state law treats an appellate court decision as controlling in the absence
of a ruling from the state supreme court; (2) there is no indication from the state supreme court
that it would reach a different outcome; and (3) the state appellate court’s decision is
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                  Page 9


irreconcilable with our own ruling. See id. at 702 (quoting Wieczorek v. Volkswagenwerk, A.G.,
731 F.2d 309, 310 (6th Cir. 1984) and citing Hicks v. Feiock, 485 U.S. 624, 630 n. 3 (1988)).

       Our review of Tennessee caselaw reveals that the Tennessee Court of Appeals has
abrogated Heil’s pronouncement that the statutory remedy for bad faith is the “exclusive
extracontractual remedy for an insurer’s bad faith refusal to pay on a policy.” 690 F.3d at 728.
In Riad v. Erie Insurance Exchange, the defendant relied on Heil to argue that the plaintiff “was
not entitled to damages beyond those contemplated in” the bad faith statute and so could not
recover punitive damages. 436 S.W.3d 256, 275 (Tenn. Ct. App. 2013), perm. app. denied
(Tenn. 2014). The appellate court rejected this contention, stating:

       we reaffirm our conclusion that Plaintiff was entitled to recover any damages
       applicable in breach of contract actions and was not statutorily limited to the
       recovery of the insured loss and the bad faith penalty. Punitive damages, while
       generally not available in a breach of contract case, may be awarded in a breach
       of contract action under certain circumstances. To recover punitive damages, the
       trier of fact must find that a defendant acted either intentionally, fraudulently,
       maliciously, or recklessly. Erie does not argue that the jury was improperly
       instructed or that the jury failed to consider the applicable factors. Accordingly,
       we further conclude that the issue of punitive damages was properly submitted to
       the jury.

Id. at 276 (citations and internal quotation marks omitted). Most relevant for our purposes, Riad
specifically quoted and disclaimed Heil’s statement that the bad faith statute is an exclusive
remedy, explaining that it “ignores the Myint progeny of cases . . . .” Id. Indeed, Myint—which
Heil never mentioned, even though Myint was decided before Heil and after the unpublished
cases that Heil relied upon—is irreconcilable with Heil’s holding that the bad faith statute
provides an exclusive remedy.        In Myint, the Tennessee Supreme Court held exactly the
opposite, concluding that “nothing in . . . the bad faith statute . . . limits an insured’s remedies to
those provided therein.” Myint v. Allstate Ins. Co., 970 S.W.2d 920, 925 (Tenn. 1998).

       A published opinion of the Tennessee Court of Appeals is “controlling authority for all
purposes unless and until such opinion is reversed or modified by a court of competent
jurisdiction.” Tenn. Sup. Ct. R. 4(G)(2); see Court of Appeals Precedent, Tenn. Op. Att’y Gen.
No. 07-98, 2007 WL 2221359 (July 3, 2007) (explaining rule’s application to published opinions
of Tennessee Court of Appeals). We find no indication that the Tennessee Supreme Court
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                     Page 10


disagrees with Riad, which is a published case.3 See Tenn. Sup. Ct. R. 4(A)(1) (explaining that a
“published” case is one that is published in the Southwestern Reporter). As in Hampton, then, a
state appellate court in this case has abrogated this Court’s interpretation of state law. See
Hampton, 191 F.3d at 702 (“[T]he Michigan Court of Appeals decision in Froede controls and,
until or unless the Michigan Supreme Court decides otherwise, or in some other way casts
sufficient doubt on that decision, we must abandon our interpretation of Michigan law . . . .”).
We find that Heil is no longer good law to the extent that it held that the statutory remedy for bad
faith is the “exclusive extracontractual remedy for an insurer’s bad faith refusal to pay on a
policy.” 690 F.3d at 728. The law in Tennessee now provides that the statutory remedy for bad
faith is the exclusive statutory remedy for an insurer’s bad faith refusal to pay on a policy, but a
plaintiff may freely pursue common law claims and remedies alongside a statutory bad faith
claim.4 See Riad, 436 S.W.3d at 276; T.C.A. § 56-8-113. Accordingly, we reject Defendant’s
argument that Heil requires us to reverse the district court’s ruling.

        Defendant challenges this conclusion for two reasons, neither of which is persuasive.
First, Defendant argues that Riad and Myint are limited to cases involving tortious or quasi-
tortious acts because both cases involved claims under the Tennessee Consumer Protection Act
(“TCPA”), T.C.A. §§ 47-18-101, et seq. But although both cases indeed involved TCPA and
breach-of-contract claims, neither court’s underlying analysis of the bad faith statute was
concerned with the nature of the plaintiff’s related claims. The Myint court looked to the text of
the bad faith statute to conclude that “nothing in . . . the bad faith statute . . . limits an insured’s
remedies to those provided therein.” 970 S.W.2d at 925. Applying this rule to the case before it,
the court concluded that the plaintiff could assert a TCPA claim alongside a bad faith claim; only
then did the court find that the TCPA claim failed on the merits. Id. at 926. Meanwhile, when
the Riad court discussed punitive damages, it did not link the availability of such damages to the


        3The    dissent draws a contrary conclusion, relying on language in the Tennessee Supreme Court’s order
refusing certification in this case. An unpublished order, however, is not binding or precedential and cannot
“reverse[] or modif[y]” a decision in the manner contemplated by Rule 4(G)(2). When the high court disagrees with
a decision, the normal procedure is to allow the case to be appealed and then reverse it. In Riad, the Tennessee
Supreme Court denied permission to appeal. See Riad v. Erie Ins. Exch., No. E2013-00288-SC-R11-CV, 2014
Tenn. LEXIS 196 (Mar. 4, 2014).
        4This   statement of law incorporates the Court’s discussion of T.C.A. § 56-8-113, infra.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 11


existence of any particular type of claim, such as a TCPA claim; instead, the court merely
required that the “defendant acted either intentionally, fraudulently, maliciously, or recklessly.”
436 S.W.3d at 276. Accordingly, Defendant is incorrect that Myint and Riad are limited to cases
involving tortious or quasi-tortious acts.

       Second, Defendant argues that we should apply Heil because the Tennessee General
Assembly overruled the Myint line of cases with a 2011 statutory amendment, codified as T.C.A.
§ 56-8-113. The statute provides:

       Notwithstanding any other law, title 50 [employment] and this title shall provide
       the sole and exclusive statutory remedies and sanctions applicable to an insurer
       . . . for alleged breach of, or for alleged unfair or deceptive acts or practices in
       connection with, a contract of insurance . . . . Nothing in this section shall be
       construed to eliminate or otherwise affect any . . . [r]emedy, cause of action, right
       to relief or sanction available under common law.

T.C.A. § 56-8-113. We disagree with Defendant’s argument, finding that § 56-8-113 overrules
Myint only in part, and only in a manner not relevant here. Under § 56-8-113, a plaintiff who
asserts a bad faith claim may not recover statutory damages beyond those set forth in the bad
faith statute and the title relating to employment.       But § 56-8-113 leaves intact Myint’s
underlying conclusion that nothing in the bad faith statute itself “limits an insured’s remedies to
those provided therein[,]” 970 S.W.2d at 925, and the new statute expressly disclaims any effect
on the availability of common law remedies like punitive damages: “Nothing in this section
shall be construed to eliminate or otherwise affect any . . . [r]emedy, cause of action, right to
relief or sanction available under common law[.]” T.C.A. § 56-8-113. Accordingly, the new
statute has no effect on Riad’s conclusion that “[p]unitive damages, while generally not available
in a breach of contract case, may be awarded in a breach of contract action under certain
circumstances.”     436 S.W.3d at 276 (citations and internal quotation marks omitted).
Defendant’s argument is incorrect, and we affirm the district court’s denial of Defendant’s
motion to dismiss Plaintiff’s punitive damages claim for breach of contract.

       C. Defendant’s Motion for Judgment as a Matter of Law

       Defendant next challenges the district court’s denial of its motion for judgment as a
matter of law. “We review de novo a district court’s denial of a motion for judgment as a matter
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 12


of law under Federal Rule of Civil Procedure 50(b).” Rhinehimer v. U.S. Bancorp Invs., Inc.,
787 F.3d 797, 804 (6th Cir. 2015) (citing Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th
Cir. 2005)). “In this Circuit, a federal court sitting in diversity must apply the standard for
judgments as a matter of law of the state whose substantive law governs.” DXS, Inc. v. Siemens
Med. Sys., Inc., 100 F.3d 462, 468 (6th Cir. 1996).

       Under Tennessee law, the reviewing court must “take the strongest legitimate
       view of the evidence in favor of the opponent of the motion, allow all reasonable
       inferences in his or her favor, discard all countervailing evidence, and deny the
       motion where there is any doubt as to the conclusions to be draw[n] from the
       whole evidence.”

Stinson v. Crye-Leike, Inc., 198 F. App’x 512, 515 (6th Cir. 2006) (alteration in original)
(quoting Arms v. State Farm Fire & Cas. Co., 731 F.2d 1245, 1248 (6th Cir. 1984)). Judgment
as a matter of law should be granted “only if reasonable minds could draw but one conclusion.”
Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn. 1982).

       Defendant asserts that the district court should have granted its motion for judgment as a
matter of law regarding Plaintiff’s claims for (1) statutory bad faith and (2) punitive damages
predicated on breach of contract. We address the two issues in turn.

                 1. Statutory Bad Faith Claim

       Tennessee’s bad faith statute for insurers states the following:

       The insurance companies of this state, and foreign insurance companies and other
       persons or corporations doing an insurance or fidelity bonding business in this
       state, in all cases when a loss occurs and they refuse to pay the loss within sixty
       (60) days after a demand has been made by the holder of the policy or fidelity
       bond on which the loss occurred, shall be liable to pay the holder of the policy or
       fidelity bond, in addition to the loss and interest on the bond, a sum not exceeding
       twenty-five percent (25%) on the liability for the loss; provided, that it is made to
       appear to the court or jury trying the case that the refusal to pay the loss was not
       in good faith, and that the failure to pay inflicted additional expense, loss, or
       injury including attorney fees upon the holder of the policy or fidelity bond[.]

T.C.A. § 56-7-105(a). In order to prevail on a § 56-7-105 bad faith claim, a plaintiff must prove
four elements:
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                Page 13


       (1) the policy of insurance must, by its terms, have become due and payable, (2) a
       formal demand for payment must have been made, (3) the insured must have
       waited 60 days after making his demand before filing suit (unless there was a
       refusal to pay prior to the expiration of the 60 days), and (4) the refusal to pay
       must not have been in good faith.

Palmer v. Nationwide Mut. Fire Ins. Co., 723 S.W.2d 124, 126 (Tenn. Ct. App. 1986).

       Defendant baldly asserts that it was entitled to judgment as a matter of law on Plaintiff’s
bad faith claim because of “the lack of evidence in support of [Plaintiff]’s bad-faith . . . claim[].”
(First Br. 34.) However, Defendant provides no support for this assertion in its principal brief,
which suggests that Defendant waived this issue. See United States v. Elder, 90 F.3d 1110, 1118
(6th Cir. 1996) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (citation omitted)).

       In any event, Defendant’s argument fails on the merits. In its reply brief, Defendant is
more specific, invoking the uncertainty defense to claims of bad faith. An insurer “is entitled to
rely upon available defenses and refuse payment if there [are] substantial legal grounds that the
policy does not afford coverage for the alleged loss.” Ginn v. Am. Heritage Life Ins. Co.,
173 S.W.3d 433, 443 (Tenn. Ct. App. 2004) (citation omitted). Thus, the statute bars the
imposition of a bad faith penalty where (1) an insurer’s refusal to pay is based on the insurer’s
uncertainty about the true beneficiary or beneficiaries of a policy, and (2) the insurer’s
uncertainty is supported by a substantial legal ground. See Nelms v. Tenn. Farmers Mut. Ins.
Co., 613 S.W.2d 481, 484 (Tenn. Ct. App. 1978). This holds true even if a court ultimately finds
that the claimant is entitled to the proceeds of the policy. See id. A plaintiff who wishes to
overcome the uncertainty defense generally “must demonstrate ‘there were no legitimate grounds
for disagreement about the coverage of the insurance policy.’” Fulton Bellows, LLC v. Fed. Ins.
Co., 662 F. Supp. 2d 976, 996 (E.D. Tenn. 2009) (quoting Zientek v. State Farm Int’l Servs.,
No. 1:05-cv-326, 2006 WL 925063, *4 (E.D. Tenn. Apr. 10, 2006)). As always, a plaintiff may
also challenge the factual support for a defendant’s proffered affirmative defense. See Ass’n of
Owners of Regency Park Condominiums v. Thomasson, 878 S.W.2d 560, 566 (Tenn. Ct. App.
1994) (“For an affirmative defense, which is affirmatively pleaded, the burden is on the pleader
to prove same.”) (quoting 11 Tenn. Jur. Evidence § 50 (1984)).
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                       Page 14


        Defendant argues that it was entitled to judgment as a matter of law because it was
“concerned about the prospect of multiple liabilities” when it refused to pay Plaintiff’s claim.
(Third Br. 31.) This concern, Defendant argues, arose from the fact that the MDA between
Plaintiff and Decedent rendered the Policy’s primary beneficiary “ambiguous and uncertain.”
(Id.) In support of this uncertainty, Defendant cites Holt v. Holt, 995 S.W.2d 68, 72 (Tenn.
1999), a case that Defendant characterizes as standing for the proposition that “the MDA . . .
vested the children with ‘an equitable interest’ in the policy at issue here, . . . and that equitable
interest created potential adversity between the children and [Plaintiff].” (Third Br. 31.)

        Applying Tennessee’s standard of review, however, we find that reasonable minds could
reject Defendant’s argument because it is not clear that Holt was the actual reason that Defendant
refused to pay Plaintiff’s claim.5           Indeed, reasonable minds could instead conclude that
Defendant raised the uncertainty defense during litigation as a mere post hoc explanation for its
conduct. When Defendant initially filed its interpleader complaint, the only potential adverse
claim it described was that of Williams—not of the minor children. Defendant also did not
mention in its complaint its supposed uncertainty about whether the minor children had an
equitable interest in the policy. And furthermore, Defendant did not even mention Holt—the
supposed basis for its uncertainty—in its motion to dismiss Plaintiff’s complaint.

        Prior to its motion to dismiss, Defendant’s refusal to pay had no apparent basis under the
law.   Indeed, Defendant did not seem to understand—and certainly did not convey—what
Plaintiff could do to fulfill Defendant’s demand for waivers from other potential claimants. Trial
witnesses testified that the guardianship process Defendant suggested for obtaining waivers was
complicated, uncommon, and unnecessary.                  Defendant’s staff admitted that it did not
“meticulously review” the letter it sent to Plaintiff in which it demanded the waivers. (R. 184 at
PageID #3308.) And immediately after sending the letter, the employee who wrote it closed the
file on Plaintiff’s complaint. Defendant’s purported uncertainty is not consistent with its actions
to stymie Plaintiff’s claim under the Policy: Defendant initially refused to consider as proposed
guardians the very same individuals whom it would later jointly move the district court to

        5Because there is reason to believe that Defendant did not rely on Holt in good faith, we need not decide
whether good-faith reliance on Holt could support a refusal to pay in the future under analogous circumstances.
 Nos. 17-6034/6079        Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 15


appoint to that role, Defendant repeatedly stated that it would send waiver forms but never did,
and Defendant refused to consider Plaintiff’s proposed alternative solution in the form of a hold
harmless and indemnification agreement. In light of this evidence, a reasonable juror could
conclude that Defendant did not actually refuse to pay the claim because of the legal uncertainty
created by Holt.

               2. Punitive Damages Claim Predicated on Breach of Contract

       Defendant next argues that it was entitled to judgment as a matter of law on Plaintiff’s
claim for punitive damages arising from breach of contract. “Punitive damages are intended to
punish the defendant for wrongful conduct and to deter others from similar conduct in the
future.” Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn. 1984) (citing Liberty Mut. Ins.
Co. v. Stevenson, 368 S.W.2d 760 (Tenn. 1963)); see Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 292 (1989) (“Damages are designed not only as a satisfaction to the
injured person, but likewise as punishment to the guilty, to deter from any such proceeding for
the future and as a proof of the detestation of the jury to the action itself.”) (quoting Wilkes v.
Wood, Lofft. 1, 18–19, 98 Eng. Rep. 489, 498–499 (K.B. 1763)).

       Punitive damages may be awarded in “egregious” cases involving breach of contract
where, in addition to showing that the defendant breached a contract, the plaintiff provides “clear
and convincing proof that the defendant has acted either ‘intentionally, fraudulently, maliciously,
or recklessly.’” Rogers v. Louisville Land Co., 367 S.W.3d 196, 211 n.14 (Tenn. 2012) (quoting
Goff v. Elmo Greer & Sons Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009)). For proof to be
clear and convincing, there must be “no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3.
(Tenn. 1992). The Supreme Court of Tennessee summarizes the four levels of intent that are
capable of giving rise to punitive damages for a breach of contract as follows:

       A person acts intentionally when it is the person’s conscious objective or desire to
       engage in the conduct or cause the result. A person acts fraudulently when (1) the
       person intentionally misrepresents an existing, material fact or produces a false
       impression, in order to mislead another or to obtain an undue advantage, and
       (2) another is injured because of reasonable reliance upon that representation. A
       person acts maliciously when the person is motivated by ill will, hatred, or
 Nos. 17-6034/6079          Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 16


       personal spite. A person acts recklessly when the person is aware of, but
       consciously disregards, a substantial and unjustifiable risk of such a nature that its
       disregard constitutes a gross deviation from the standard of care that an ordinary
       person would exercise under all the circumstances.

Id. at 901 (citations omitted).

       In this case, the jury faced the question of whether Defendant’s breach of contract
involved egregious conduct.       As previously discussed, reasonable minds could find that
Defendant’s uncertainty defense was merely a post hoc explanation for its refusal to pay on the
Policy. Based on the following evidence, reasonable minds could go further, finding that clear
and convincing evidence demonstrated that Defendant’s refusal to pay was at least reckless.

       Defendant was aware that its refusal to pay could lead to litigation between multiple
parties; indeed, Defendant threatened to pursue such litigation itself through an interpleader
action, and ultimately did so. Litigation inflicts substantial costs, both on the public and on the
parties involved, and reasonable minds could conclude that Defendant consciously disregarded a
risk that its threats—and eventual imposition—of litigation was unjustifiable. The jury learned
that Defendant misled Plaintiff about her legal rights, incorrectly asserting that she had
“obviously waived her beneficiary status” under the Policy. (R. 185 at PageID #3865.) The jury
also learned that Defendant provided no basis for this bald assertion and that Defendant’s
systems to prevent its personnel from making false and unsupported assertions of law were
inadequate. The jury further learned that when Plaintiff complained about the cost and confusion
of Defendant’s seemingly unjustified threat of an interpleader action, Defendant told her, “that is
not our problem.” (R. 182 at PageID #2799.) Indeed, Defendant told the jury that it had no
policy or standard operating procedure in place to guide Plaintiff’s claim to resolution without
litigation, and its staff was merely dedicated to “closing” Plaintiff’s complaints. (R. 184 at
PageID # 3268; R. 185 at PageID #3873.)

       In light of this evidence, reasonable minds could have concluded that clear and
convincing evidence showed that Defendant’s pursuit of litigation with Plaintiff was at least
reckless. See Hodges, 833 S.W.2d at 901. We therefore affirm the district court’s denial of
Defendant’s motion for judgment as a matter of law.
 Nos. 17-6034/6079               Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                             Page 17


         D. The Statutory Cap on Punitive Damages

         On cross-appeal, Plaintiff argues that the statutory punitive damages cap, T.C.A. § 29-39-
104,6 which the district court applied below, violates two provisions of the Tennessee
Constitution: the individual right to a jury trial and the doctrine of separation of powers. This
Court reviews de novo a district court’s interpretation of state law. Salve Regina Coll. v. Russell,
499 U.S. 225, 231 (1991). Faithful application of a state’s law requires us to “anticipate how the
relevant state’s highest court would rule in the case,” and in doing so we are “bound by
controlling decisions of that court.” In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir.
2005). Where, as here, the state’s appellate courts have not addressed the issue presented, “we
must predict how the [state’s highest] court would rule by looking to all the available data.”
Allstate Ins. Co. v. Thrifty Rent–A–Car Sys. Inc., 249 F.3d 450, 454 (6th Cir. 2001). Federal
courts should be “extremely cautious about adopting ‘substantive innovation’ in state law.”
Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004) (citation omitted). When facing state
constitutional challenges, Tennessee statutes receive “a strong presumption” of constitutionality.
Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006) (citing Osborn v. Marr, 127 S.W.3d
737, 740–41 (Tenn. 2004)); see also Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (“Our
charge is to uphold the constitutionality of a statute wherever possible.”).

         Upon our assessment of Tennessee law, we find that the punitive damages bar set forth in
§ 29-39-104 violates the individual right to a trial by jury set forth in the Tennessee Constitution.
The Declaration of Rights in the Tennessee Constitution provides that “the right of trial by jury
shall remain inviolate . . . .” Tenn. Const. art. I, § 6. This broad language does not guarantee the
right to a jury trial in every case. “Rather, it guarantees the right to trial by jury as it existed at




         6In   relevant part, T.C.A. § 29-39-104(a)(5) provides that punitive damages are limited to the greater of
either double “the total amount of compensatory damages awarded” or $500,000. The limitation “shall not be
disclosed to the jury, but shall be applied by the court to any punitive damages verdict[.]” Id. § 29-39-104(a)(6).
The limitation does not apply in any suit involving intent to inflict serious physical injury, intentional falsification or
concealment of records, injuries or death caused by an intoxicated defendant, or felonious conduct. Id. § 29-39-
104(a)(7). The parties do not argue that any of the statutory exceptions apply in this case or that the district court
erred in its calculations when applying the cap.
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                        Page 18


common law under the laws and constitution of North Carolina7 at the time of the adoption of
the Tennessee Constitution of 1796.” Young v. City of LaFollette, 479 S.W.3d 785, 793 (Tenn.
2015) (internal quotation marks, alteration, and citation omitted). “Among the essentials of the
right to trial by jury is the right guaranteed to every litigant in jury cases to have the facts
involved tried and determined by twelve jurors.” State v. Bobo, 814 S.W.2d 353, 356 (Tenn.
1991).

         Our review of historical evidence from Tennessee and North Carolina demonstrates that
punitive damages awards were part of the right to trial by jury at the time the Tennessee
Constitution was adopted. The North Carolina Supreme Court discussed the issue of punitive
damages in a case it decided the year after the Tennessee Constitution was drafted, Carruthers v.
Tillman, 2 N.C. (1 Hayw.) 501 (1797). Carruthers was a nuisance suit in which the defendant
was accused of “overflowing of the Plaintiff’s land.”                 Id. at 501.      The Court seized the
opportunity to explain the types of suits in which punitive damages (therein referred to as
exemplary damages) were appropriate:

         [I]t is not proper, in the first instance, to give exemplary damages, but such only
         as will compensate for actual loss, as killing the timber or overflowing a field, so
         as to prevent a crop being made upon it, and the like. . . . [B]ut if after this the
         nuisance should be continued, and a new action brought, then the damages should
         be so exemplary as to compel an abatement of the nuisance.

Id. In Rhyne v. K-Mart Corp., the North Carolina Supreme Court cited Carruthers as its first
case discussing exemplary damages and as support for the established place of punitive damages
in North Carolina common law. 594 S.E.2d 1, 6 (N.C. 2004). Carruthers fits neatly with
Wilkins v. Gilmore, an 1840 case in which the Tennessee Supreme Court held that it was “clear”
that “the jury are not restrained in their assessment of damages, to the amount of the mere
pecuniary loss sustained by the plaintiff, but may award damages, in respect of the malicious
conduct of the defendant, and the degree of insult with which the trespass has been attended.”
21 Tenn. (2 Hum.) 140, 141 (1840). Together, Carruthers and Wilkins demonstrate that North
Carolina juries were awarding punitive damages at the time the Tennessee Constitution was

         7North Carolina has special relevance because the land that became Tennessee was originally part of North
Carolina, and Tennessee’s Constitution draws heavily from North Carolina’s. See In re Estate of Trigg, 368 S.W.3d
483, 491 (Tenn. 2012).
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 19


drafted and that the practice continued uninterrupted in Tennessee thereafter. Accordingly, “the
right to trial by jury as it existed at common law” in 1796 would have included the right to have
the jury award punitive damages in appropriate cases.8 Young, 479 S.W.3d at 793 (citations and
internal quotation marks omitted).

        Further review shows that the proper measure of punitive damages is historically a
“finding of fact” within the exclusive province of the jury. In the 1839 case Boyers v. Pratt, a
jury awarded the plaintiff the sizable sum of $1,460 in damages for an assault claim. 20 Tenn.
(1 Hum.) 90, 90 (1839). The Tennessee Supreme Court summarized the problem of properly
assessing damages as follows:

        Here there was a harmless, inoffensive young man of religious habits and a non-
        combatant, a stranger in a strange land, degraded by the infliction of the most
        ignominious punishment from the hands of a wealthy, influential and respectable
        citizen, and without any thing approaching to adequate cause. Who can begin to
        estimate, in dollars and cents, what would be an adequate compensation for such
        an injury?

Id. at 93. The Court explained that “the peace of society ought in cases of this kind always to be
looked to, and damages given to such an extent as will deter persons from the commission of
such offences.” Id. It therefore concluded that it could not find the damages excessive because
“[t]he question is one purely of fact, and we do not think that the jury have abused their trust.”
Id.

        One hundred years later, the Tennessee Supreme Court described another punitive
damages award in similar terms. In Southeastern Greyhound Lines, Inc. v. Freels, a passenger
was refused the opportunity to board a bus; the jury awarded $500 in punitive damages even
though the actual damages amounted to less than two dollars. 144 S.W.2d 743, 744 (Tenn.
1940). Based on its review of the applicable authority, the Court concluded that “the question is
always for the jury, as to whether or not there was anything in the conduct of the defendant to
aggravate the damages and justify the recovery therefor in addition to the actual damages

        8Tennessee’s    cap on punitive damages applies by its plain terms to all “civil action[s] in which punitive
damages are sought[.]” T.C.A. § 29-39-104(a). In attempting to narrow the scope of the historical inquiry about the
availability of punitive damages, the dissent fails to acknowledge that the challenge in this case is to a blanket
statutory cap.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 20


suffered.” Id. at 746. It quoted with approval an older case explaining that “punitory damages
can not be claimed as a matter of right; but it is always a question for the jury, within its
discretion, no matter what the facts are.” Id. (quoting Louisville & N.R. Co. v. Satterwhite, 79
S.W. 106, 112 (Tenn. 1904)). Ultimately, the court concluded that it could not second-guess the
jury’s verdict merely because it was “unable to find strong support in this case for the allowance
of additional damages.” Id.

       Following this line of cases from the Tennessee Supreme Court, we find that the General
Assembly’s attempt to cap punitive damages pursuant to T.C.A. § 29-39-104 constitutes an
unconstitutional invasion of the right to trial by jury under the Tennessee Constitution. See
Tenn. Const. art. I, § 6. We therefore hold that T.C.A. § 29-39-104 is unenforceable to the extent
that it purports to cap punitive damage awards.

       Defendant and the State ask this Court to hold otherwise for six reasons. We are not
persuaded.    First, these parties challenge the notion that the amount of punitive damages
constitutes a “finding of fact.” The Court recognizes that some jurisdictions do not consider
punitive damage awards to be factual in nature. For example, the Indiana Supreme Court upheld
a punitive damages cap in large part because “the jury’s determination of the amount of punitive
damages is not the sort of ‘finding of fact’ that implicates the right to jury trial under our state
constitution.”   State v. Doe, 987 N.E.2d 1066, 1071 (Ind. 2013) (quoting Stroud v. Lints,
790 N.E.2d 440, 445 (Ind. 2003)). And the United States Supreme Court has explained that,
“[u]nlike the measure of actual damages suffered, which presents a question of historical or
predictive fact, the level of punitive damages is not really a ‘fact’ ‘tried’ by the jury.” Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 437 (2001) (citation omitted) (quoting
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 459 (1996) (Scalia, J., dissenting)).

       But as cases such as Wilkins, Boyers, and Southeastern Greyhound demonstrate,
Tennessee law treats punitive damages differently, and it is not alone in doing so. Indeed, the
United States Supreme Court acknowledged in Cooper Industries that there is a lack of
uniformity on this issue, stating:

       Respondent argues that our decision in Honda Motor Co. v. Oberg, 512 U.S. 415,
       (1994), rests upon the assumption that punitive damages awards are findings of
 Nos. 17-6034/6079        Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 21


       fact. In that case, we held that the Oregon Constitution, which prohibits the
       reexamination of any “fact tried by a jury,” violated due process because it did not
       allow for any review of the constitutionality of punitive damages awards.
       Respondent claims that, because we considered this provision of the Oregon
       Constitution to cover punitive damages, we implicitly held that punitive damages
       are a “fact tried by a jury.” It was the Oregon Supreme Court’s interpretation of
       that provision, however, and not our own, that compelled the treatment of
       punitive damages as covered. See Oberg, 512 U.S. at 427; see also Van Lom v.
       Schneiderman, 210 P.2d 461, 462 (Or. 1949) (construing the Oregon
       Constitution).

Id. at 437 n.10 (citations omitted). The Missouri Supreme Court further demonstrated this lack
of uniformity when, in a recent case, it struck down a punitive damages cap on the basis that the
cap invaded the province of the jury. See Lewellen v. Franklin, 441 S.W.3d 136, 145 (Mo. 2014)
(en banc). In that case, the Missouri Supreme Court explained that, “[u]nder the common law as
it existed at the time the Missouri Constitution was adopted, imposing punitive damages was a
peculiar function of the jury.” Id. at 143. Accordingly, the Court found that the punitive
damages cap violated a provision of the Missouri Constitution that is materially identical to the
constitutional provision at issue in this case: “the right of trial by jury as heretofore enjoyed
shall remain inviolate.” Mo. Const. art. 1, § 22(a). Faced with this lack of uniformity, we find
that the Tennessee Supreme Court would likely apply its own rule—which is shared by states
like Missouri—and would find that § 29-39-104 violates the constitutional right to a trial by jury.

       Second, Defendant and the State point out that the North Carolina Supreme Court
affirmed a statutory punitive damages cap in Rhyne. Given the two states’ shared history,
Tennessee courts have sometimes followed the lead of the North Carolina Supreme Court. For
example, in Jernigan v. Jackson, the Tennessee Supreme Court considered whether individuals
have a right to a trial by jury in tax cases. 704 S.W.2d 308 (Tenn. 1986). The court based its
decision on a 1941 case from the North Carolina Supreme Court, explaining:

       North Carolina’s constitutional provision granting trial by jury in civil cases . . .
       was in 1941 and is today in the same language as the original, and at no time in its
       history has the North Carolina Legislature authorized jury trials in tax cases. It
       follows that under the law in force and use in North Carolina in 1789 and in 1796
       when Tennessee’s first Constitution was adopted, jury trials in tax cases were not
       authorized.
 Nos. 17-6034/6079           Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 22


Id. at 309 (citing Unemployment Comp. Comm’n v. J.M. Willis Barber & Beauty Shop, 15 S.E.2d
4 (N.C. 1941)). The court therefore adopted the North Carolina Supreme Court’s holding that
juries were not constitutionally required in tax cases. Id.

          In this case, however, we are not persuaded that the Tennessee Supreme Court would
follow North Carolina’s lead. The basis for the North Carolina Supreme Court’s decision in
Rhyne was a provision of the North Carolina Constitution that protects the right to a trial by jury
in “all controversies at law respecting property.” See 594 S.E.2d at 10 (discussing N.C. Const.
art I, § 25).    Based on this language, the Rhyne court held that because there was “no
independent right to, or ‘property’ interest in, an award of punitive damages,” the legislature
could dictate the jury’s role in making such an award. See id. at 13. But the same analysis does
not apply in this case because, unlike the North Carolina Constitution, the Tennessee
Constitution does not contain any language limiting the right to a trial by jury to “all
controversies at law respecting property.” Instead, the Tennessee Constitution broadly provides
that “the right of trial by jury shall remain inviolate . . . .” Tenn. Const. art. I, § 6.

          Third, Defendant and the State argue that the punitive damages cap is constitutional
because the Tennessee General Assembly has the power to abrogate or eliminate common law
remedies. But this argument merely begs the question because the General Assembly’s power to
change the common law is subject to “constitutional limits.” Lavin v. Jordon, 16 S.W.3d 362,
368 (Tenn. 2000) (citing S. Ry. Co. v. Sanders, 246 S.W.2d 65, 67 (Tenn. 1952)). To argue that
the General Assembly may cap punitive damages based on its power to modify the common law
is akin to arguing that parents may drive as fast as they wish because parents make the rules.
Each argument ignores a key constraint on the rulemaker’s authority. In this case, of course, the
preexisting constraint is the constitutional right to submit factual questions for determination by
a jury.

          The State’s related discussion of Lavin does not persuade us otherwise. The State cites
Lavin as support for the proposition that “capping punitive damages was wholly within the
legislature’s power.” (Gov. Br. 24.) In Lavin, the Tennessee Supreme Court analyzed a statute
that capped a plaintiff’s recovery in cases involving “injury or damage by juvenile” to “the actual
damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                 Page 23


costs.” See id. at 365 (quoting T.C.A. §§ 37-10-101, 102). The plaintiffs’ only argument was
that the $10,000 cap did not apply to their case because it did not qualify as an “injury or damage
by juvenile case” within the meaning of the statute and as dictated by binding precedent. See id.
at 365, 368. In other words, the plaintiffs did not raise any constitutional challenges to the
General Assembly’s power to cap their recovery at $10,000. Id. The Tennessee Supreme Court
described the statute as “distasteful” because $10,000 was “plainly inadequate and wholly
insufficient to compensate the plaintiffs” for the loss of their son “to a senseless act of malicious
violence . . . .” Id. at 369. Nevertheless, the Court could only resolve the question before it,
which was a matter of statutory interpretation. In the case presently before us, however, there is
no statutory interpretation issue; rather, the question is whether a punitive damages cap exceeds
constitutional bounds. Lavin is therefore unilluminating.

       Fourth, citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996), the State
argues that “Tennessee’s statutory cap on punitive damages is a way of ensuring that the level of
punitive damages will meet the Gore due-process standard of normalization and stabilization of
awards.” (Gov. Br. 17.) But Tennessee’s categorical punitive damages cap of “an amount equal
to the greater of: (A) Two (2) times the total amount of compensatory damages awarded; or
(B) Five hundred thousand dollars ($500,000),” T.C.A. § 29-39-104(a)(5), bears no relationship
to Gore’s discussion of the federal constitutional limits on punitive damages:

       [W]e have consistently rejected the notion that the constitutional line is marked by
       a simple mathematical formula, even one that compares actual and potential
       damages to the punitive award. Indeed, low awards of compensatory damages
       may properly support a higher ratio than high compensatory awards, if, for
       example, a particularly egregious act has resulted in only a small amount of
       economic damages. A higher ratio may also be justified in cases in which the
       injury is hard to detect or the monetary value of noneconomic harm might have
       been difficult to determine. It is appropriate, therefore, to reiterate our rejection of
       a categorical approach. Once again, we return to what we said in Haslip: “We
       need not, and indeed we cannot, draw a mathematical bright line between the
       constitutionally acceptable and the constitutionally unacceptable that would fit
       every case. We can say, however, that a general concern of reasonableness
       properly enters into the constitutional calculus.” In most cases, the ratio will be
       within a constitutionally acceptable range, and remittitur will not be justified on
       this basis. When the ratio is a breathtaking 500 to 1, however, the award must
       surely raise a suspicious judicial eyebrow.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                 Page 24


Gore, 517 U.S. at 582–83 (internal quotation marks, emphasis, citations, and alterations
omitted). We therefore reject this argument.

       Fifth, the State argues that Plaintiff may not challenge the punitive damages cap because
plaintiffs are never entitled to punitive damages. Indeed, Tennessee law recognizes that punitive
damages are not compensatory in nature. See Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901,
907–08 (Tenn. 1999).       But for centuries, the right to a trial by jury in Tennessee has
encompassed the right to ask a jury to determine the quantity of damages that “will deter persons
from the commission of such offences.” Boyers, 20 Tenn. at 93. A plaintiff’s right to submit
that “question . . . purely of fact,” id., to a jury is not vitiated merely because the resulting award
is non-compensatory. The district court’s application of § 29-39-104 to reduce the jury’s award
of punitive damages undeniably reduced Plaintiff’s recovery. Therefore, Plaintiff may challenge
the validity of the punitive damages cap.

       Sixth, the State argues that the punitive damages cap merely creates “legal consequences
of the jury’s finding on damages.” (Gov. Br. 25.) In other words, § 29-39-104 does not invade
the province of the jury, the State argues, because it allows the jury to make the factual finding
and only then is the “trial court . . . required[] to reduce the jury’s assessment of punitive
damages to comport with the law.”           (Id.)   Defendant similarly argues that “there is no
encroachment upon the jury’s fact-finding role because the jury is never aware of the cap.”
(Third Br. 14.) Defendant and the State imply that § 29-39-104 is merely a regulation on the
process of remittitur, but these parties do not use the word “remittitur”—perhaps because the
Tennessee Supreme Court has repeatedly rejected the General Assembly’s attempts to regulate
the exercise of remittitur.     Indeed, the Tennessee Supreme Court has historically treated
remittitur as a judicial power that may be influenced—but not controlled—by the General
Assembly. See Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 309–10 (Tenn. 2017)
(discussing history of remittitur in Tennessee); Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 145
(Tenn. 1981) (rejecting “hard and fast rules in reviewing additurs and remittiturs”); Grant v.
Louisville & N.R. Co., 165 S.W. 963, 966 (1914) (rejecting statute that barred courts from
suggesting remittitur absent a finding that award was “so excessive as to indicate passion,
prejudice, corruption, . . . or . . . caprice” on the part of the jury). The parties’ attempt to recast
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 25


the General Assembly’s invasion of the province of the jury as akin to a regulation of remittitur
therefore fails due to an additional constitutional barrier.

        The right to a trial by jury, moreover, is held by a litigant, not the jury members. In this
case, the jury informed Plaintiff that Defendant’s conduct so violated normal expectations of
proper behavior as to entitle her to $3,000,000 in damages. The jury’s ignorance of a subsequent
reduction in the award does not change that infringement on Plaintiff’s right. Such an infringing
reduction is not analogous to permissible legal consequences that impact a jury’s verdict.
Statutory multipliers, for example, do not undercut a jury’s assessment of damages, nor do
statutes that recognize the post-verdict authority of the trial court to act as both judge and
thirteenth juror. For example, Tennessee’s remittitur statute allows a trial court in certain
circumstances to propose “remittitur instead of granting a new trial.” Borne, 532 S.W.3d at 310.
But allowing a trial judge, after considering the attendant circumstances and proof in a case, to
offer a plaintiff the choice to avoid a new trial is a far cry from legislatively reversing a jury’s
assessment of the amount of damages necessary to deter a defendant from future wrongful
conduct.

        We therefore conclude that the statutory cap on punitive damages set forth in T.C.A.
§ 29-39-104 violates the Tennessee Constitution.9

                                               CONCLUSION

        We therefore AFFIRM the district court’s judgment in part, REVERSE in part,
VACATE the judgment as to punitive damages, and REMAND with instructions for the district
court to recalculate the award of punitive damages in accordance with the jury verdict and with
this Court’s holding that the statutory cap on punitive damages, T.C.A. § 29-39-104, is
unconstitutional.




        9Because  we conclude that the punitive damages cap violates the constitutional right to a trial by jury, we
need not address Plaintiff’s alternate argument that the cap is unconstitutional as a violation of principles of
separation of powers.
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                            Page 26


                _________________________________________________________

                      CONCURRING IN PART AND DISSENTING IN PART
                _________________________________________________________

       LARSEN, Circuit Judge, concurring in part and dissenting in part.1 State courts are the
authority on questions of state law. Federal courts must sometimes decide state law questions,
but we are the back-ups. We are to follow, not lead.

       This case presents two uncertain and important questions of state law: one concerning
the proper construction of a Tennessee statute; the other concerning the conformity of a different
Tennessee statute with the Tennessee Constitution. The Tennessee Supreme Court has signaled
its willingness to decide both of these state law questions, and we have a mechanism—
certification—that allows the Tennessee Supreme Court to decide them. I would take advantage
of that mechanism to learn from Tennessee’s highest court how it would interpret its statutes and
its Constitution.

       The majority, however, elects to decide the state law questions on its own. It first decides
that Tennessee’s bad faith statute, Tenn. Code Ann. § 56-7-105(a), does not bar a plaintiff from
recovering punitive damages in addition to the penalties provided in the statute. That a prior
decision of this court has held to the contrary is no obstacle—the majority overrules this court’s
published decision in Heil Co. v. Evanston Insurance Co., 690 F.3d 722 (6th Cir. 2012), on the
strength of a single, and questionable, decision of Tennessee’s intermediate appellate court, Riad
v. Erie Insurance Exchange, 436 S.W.3d 256 (Tenn. Ct. App. 2013). Riad rested entirely on the
assumption that a prior decision of the Tennessee Supreme Court had already decided the
question that Heil answered. But we know that is wrong: The Tennessee Supreme Court has
told us so. See Lindenberg v. Jackson Nat’l Life Ins. Co., No. M2015-02349-SC-R23-CV,
2016 Tenn. LEXIS 390, at *2 (Tenn. June 23, 2016) (per curiam). Yet the majority overrules
Heil anyway. And with Heil gone, the majority proceeds to invalidate Tennessee’s recently-
enacted punitive damages cap, Tenn. Code Ann. § 29-39-104, because the work of the Tennessee



       1I   concur in Section A of the majority’s opinion, which properly resolves the interpleader issue.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 27


General Assembly is at odds with the majority’s view of the jury trial right guaranteed by the
Tennessee Constitution.

       These two holdings are unnecessary. As to the constitutional holding, it is not even clear
that Tennessee’s jury trial guarantee provides the rule of decision in this federal diversity action
under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). If it does not, then we have no
occasion to construe the Tennessee Constitution. Putting aside the Erie question, the preclusive
effect of Tennessee’s bad faith statute and the constitutionality of the punitive damages cap are
both unsettled questions on which there is no Tennessee Supreme Court authority and little (and
conflicting) state law guidance. As such, both questions are ideally suited for certification.
Tennessee’s highest court has expressed its receptiveness to certification; the State urges
certification; and neither Lindenberg nor Jackson National objects to certification.

       But since the majority has declined this prudent path, I will also express my views of the
merits. On both questions, I believe the majority errs. I respectfully dissent.

                                                 I.

       Tennessee Supreme Court Rule 23 provides the court with discretion to accept questions
certified to it by the federal courts “when the certifying court determines that . . . there are
questions of [Tennessee law] which will be determinative of the cause and as to which it
appears . . . there is no controlling precedent in the decisions of the Supreme Court of
Tennessee.”    Here, we have two questions of state law on which “there is no controlling
precedent in the decisions of the Supreme Court of Tennessee”: (1) whether Tennessee’s bad
faith statute, § 56-7-105(a), provides the exclusive extracontractual remedy in a breach-of-
contract case arising from an insurer’s breach of an insurance contract; and (2) whether
Tennessee’s punitive damages cap, § 29-39-104, violates the Tennessee Constitution.
Certification of both questions would, therefore, meet the “no controlling precedent” requirement
of Tennessee Supreme Court Rule 23.

       U.S. Supreme Court decisions also support certification when there are “[n]ovel,
unsettled questions of state law.” Arizonans for Official English v. Arizona, 520 U.S. 43, 79
(1997). The Court has stressed that certification “save[s] ‘time, energy, and resources.’” Id. at
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                 Page 28


77 (quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)).               Most important of all,
certification “helps build a cooperative judicial federalism.” Lehman Bros., 416 U.S. at 391.
Federalism concerns are especially weighty—and certification is especially warranted—“when a
federal court is asked to invalidate a State’s law, for the federal tribunal risks friction-generating
error when it endeavors to construe a novel state Act not yet reviewed by the State’s highest
court.” Arizonans for Official English, 520 U.S. at 79. And, in a passage that feels highly
relevant today, the Court called a federal court’s “[s]peculation . . . about the meaning of a state
statute . . . particularly gratuitous when . . . the state courts stand willing to address questions of
state law on certification from a federal court.” Id. at 79 (quotations omitted). Here, while the
majority’s speculation about the meaning of a state statute results in the invalidation of state law
on an equally speculative construction of the state constitution, there is no question the
Tennessee Supreme Court “stand[s] willing to address” these novel issues.

       One might perhaps question this willingness because the district court did certify two
questions regarding the constitutionality of the punitive damages cap, and the Tennessee
Supreme Court declined to review the questions. But this ignores why that court did so. The
Tennessee Supreme Court refused the certified constitutional questions because the district court
had failed also to certify the antecedent question concerning the preclusive effect of the bad faith
statute. Accordingly, it seems the questions certified might not have been “determinative of the
cause” under Tennessee Supreme Court Rule 23. The Tennessee Supreme Court explained:

       The jury determined that the plaintiff was entitled to both the statutory bad faith
       penalty pursuant to Tennessee Code Annotated section 56-7-105, and punitive
       damages pursuant to the common law. The issue of the availability of the
       common law remedy of punitive damages in addition to the statutory remedy of
       the bad faith penalty is one which has not before been addressed by this Court,
       was not certified to this Court by the federal trial court in this case, and is not
       presently before this Court in this case. It appears to this Court that it would be
       imprudent for it to answer the certified questions concerning the constitutionality
       of the statutory caps on punitive damages in this case in which the question of the
       availability of those damages in the first instance has not been and cannot be
       answered by this Court.
 Nos. 17-6034/6079           Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                Page 29


Lindenberg v. Jackson Nat’l Life Ins. Co., No. M2015-02349-SC-R23-CV, 2016 Tenn. LEXIS
390, at *1–2 (Tenn. June 23, 2016) (per curiam). The Tennessee Supreme Court, however,
welcomed this court to send it both the statutory and the constitutional questions, noting:

          Nothing in the Court’s Order is intended to suggest any predisposition by the
          Court with respect to the United States Court of Appeals for the Sixth Circuit’s
          possible certification to this Court of both the question of the availability of the
          remedy of common law punitive damages in addition to the remedy of the
          statutory bad faith penalty and the question of the constitutionality of the statutory
          caps on punitive damages, in the event of an appeal from the final judgment in
          this case.

Lindenberg, 2016 Tenn. LEXIS 390, at *2 n.1.

          I would accept this invitation; but the majority has declined. And so I proceed to the
merits.

                                                   II.

          This case asks what remedies are available to an insured who believes that her insurer
has, in bad faith, breached its obligation to pay on an insurance policy. In 1901, the Tennessee
General Assembly enacted the bad faith statute, Tenn. Code Ann. § 56-7-105, which provides a
25% penalty in those circumstances—i.e., “in all cases” where an insurance company refuses, in
bad faith, to pay an insurance claim. See Leverette v. Tenn. Farmers Mut. Ins. Co., No. M2011-
00264-COA-R3-CV, 2013 WL 817230, at *17 (Tenn. Ct. App. Mar. 4, 2013) (quoting Tenn.
Code Ann. § 56-7-105(a)). Tennessee courts have held, and repeatedly affirmed, that the bad
faith statute precludes recognition of the common law tort of bad faith failure to pay an insurance
claim. See Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 618–21, 625 (Tenn. Ct. App.
1986); Leverette, 2013 WL 817230, at *17–18. The fundamental question in this litigation is
whether the bad faith statute likewise precludes a claim for punitive damages arising from a
common law breach of an insurance contract—put another way, whether the statute provides the
exclusive “punitive” or “extracontractual” remedy for an insurer’s bad faith failure to pay.

          This court has already answered, “Yes.” See Heil Co. v. Evanston Ins. Co., 690 F.3d 722,
728 (6th Cir. 2012). Lindenberg, the district court, and the majority all say, “No.” They say that
Lindenberg may also recover punitive damages based on Jackson National’s bad faith breach of
 Nos. 17-6034/6079           Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                   Page 30


contract. But of course, the breach of contract in this case is the failure to pay on the insurance
claim. And to get punitive damages, if they are allowed at all, Lindenberg would have to prove
something more than just a breach of contract—she would have to show conduct amounting at
least to “bad faith.” See Rogers v. Louisville Land Co., 367 S.W.3d 196, 211 n.14 (Tenn. 2012)
(explaining that punitive damages are “limited to ‘the most egregious cases’ and [are] proper
only where there is clear and convincing proof that the defendant has acted either ‘intentionally,
fraudulently, maliciously, or recklessly’” (citation omitted)).          Jackson National argues that
punitive damages should not be layered on top of the statutory bad faith penalty.

        In Heil, this court determined that the bad faith statute precludes punitive damages for
common law breach of an insurance contract. Heil, 690 F.3d at 728. If Heil remains good law, it
controls this case. The majority jettisons Heil based on one Tennessee intermediate appellate
court decision, Riad v. Erie Insurance Exchange, 436 S.W.3d 256 (Tenn. Ct. App. 2013).
Although an intermediate state appellate decision may displace this court’s prior interpretation of
state law, this rule does not obtain when there are persuasive reasons to believe the state’s
highest court would disagree. See Hampton v. United States, 191 F.3d 695, 701–02 (6th Cir.
1999). Here there are many. Riad’s analysis repudiating Heil rested entirely on that court’s
shaky assumption that an earlier Tennessee Supreme Court decision, Myint v. Allstate Insurance
Co., 970 S.W.2d 920 (Tenn. 1998), had already decided that the bad faith statute does not
preclude punitive damages. See Riad, 436 S.W.3d at 276 (criticizing Heil for “ignor[ing] the
Myint progeny of cases”).2        But we now know that Riad’s assumption was wrong.                    The
Tennessee Supreme Court has told us so: “The issue of the availability of the common law
remedy of punitive damages in addition to the statutory remedy of the bad faith penalty is one
which has not before been addressed by this Court . . . .” Lindenberg, 2016 Tenn. LEXIS 390, at
*2. That eviscerates Riad’s analysis. But even apart from its order regarding certification, there
are reasons to doubt that the Tennessee Supreme Court would adopt Riad’s reasoning.

        To begin with, Myint did not directly address the question at issue in Heil. In Myint, the
plaintiffs brought claims under both the bad faith statute and the Tennessee Consumer Protection

         2I remain uncertain just which cases Riad was referencing as Myint’s supposed “progeny.” Riad cites
none; I have found none.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.              Page 31


Act (TCPA), Tenn. Code Ann. §§ 47–18–101 et seq., as well as a claim for breach of contract.
970 S.W.2d at 923. But Myint did not address the breach of contract claim, nor did it mention
punitive damages at all. Rather, Myint focused on whether the TCPA applied to the insurance
industry, given that the industry was already subject to Tennessee’s comprehensive insurance
code. See id. at 922 (“[T]he insur[e]r insists that the acts and practices of an insurance company
are never subject to the [TCPA].”). Myint held that insurers were not exempt from the TCPA for
two reasons. First, the court concluded, the state’s insurance statutes, including the bad faith
statute, “do not foreclose application of the [TCPA] to insurance companies.”           Id. at 925.
Second, the court noted that the TCPA contained “crystal clear” language demonstrating that its
remedies are cumulative to all others available under state law. Id. at 926.

       Although Myint focused on the cumulative nature of the TCPA, Riad latched onto the
high court’s statement that it could “find nothing in either the Insurance Trade Practices Act or
the bad faith statute which limits an insured’s remedies to those provided therein.”            See
436 S.W.3d at 274 (emphasis added) (quoting Myint, 970 S.W.2d at 925). From this comment,
Riad inferred that plaintiffs could recover both the statutory bad faith penalty and punitive
damages for breach of contract. Although this is a facially plausible inference, other evidence
casts serious doubt on whether the Tennessee Supreme Court would agree.

       Pre-Myint cases held that the bad faith statute precludes common law claims for damages
arising from an insurer’s bad faith failure to pay. So Heil’s conclusion was not new. Heil based
its holding on two decisions—one federal, one state—that had construed the bad faith statute as
an exclusive remedy. See Mathis v. Allstate Ins. Co., No. 91-5754, 1992 WL 70192, at *4 (6th
Cir. Apr. 8, 1992) (“[T]he trial judge correctly noted that the 25 percent penalty provided for in
[the bad faith statute] has been deemed the exclusive remedy for losses stemming from an
insurer’s bad faith refusal to pay a claim.”); Berry v. Home Beneficial Life Ins. Co., No. 1150,
1988 WL 86489, at *1 (Tenn. Ct. App. Aug. 19, 1988) (“Moreover, as to the claim for punitive
damages, [the bad faith statute] is the exclusive remedy for bad faith refusal to pay claims arising
from insurance policies.”).

       And, although we did not discuss it in Heil, the Tennessee Court of Appeals held, over a
decade before Myint, that the bad faith statute precludes recognition of the common law tort of
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                Page 32


bad faith failure to pay on an insurance policy. See Chandler, 715 S.W.2d at 618–21. Chandler
is not the work of the Tennessee Supreme Court, but there is no question that its holding
regarding the bad faith penalty’s preclusion of the common law tort of bad faith survived Myint.
See Leverette, 2013 WL 817230, at *18 (“Neither this court nor the Tennessee Supreme Court
has overruled or even questioned the continuing validity of Chandler.”); see also Fred Simmons
Trucking, Inc. v. U.S. Fid. & Guar. Co., No. E2003-02892-COA-R3-CV, 2004 WL 2709262, at
*3 (Tenn. Ct. App. Nov. 29, 2004) (citing Chandler for Tennessee rule that “there is no tort of
bad faith, but an insured can seek the statutory bad faith penalty when an insurance company
refuses to pay”); Watry v. Allstate Prop. & Cas. Ins. Co., No. M2011–00243–COA–R3–CV,
2011 WL 6916802, at *4 (Tenn. Ct. App. Dec. 28, 2011) (“Tennessee does not recognize a
general common law tort for bad faith by an insurer against an insured; the exclusive remedy for
such conduct is statutory, provided by [the bad faith statute].” (quotations omitted)); 6111
Ridgeway Grp. LLC v. Phila. Indem. Ins. Co., No. 15-2561-STA-cgc, 2016 WL 1045570, at *4
(W.D. Tenn. Mar. 15, 2016) (noting that “Tennessee courts have followed Chandler for thirty
years”). Indeed, Riad itself acknowledged Chandler’s holding “that Tennessee did not recognize
the tort of bad faith.” Riad, 436 S.W.3d at 273. But, said Riad, “the court did not address the
type of recovery [a] plaintiff could seek if she had brought a breach of contract action.” Id.

       I suppose this could be Tennessee’s regime: Tennessee’s bad faith statute precludes the
common law tort of bad faith failure to pay on an insurance policy, per Chandler, and punitive
damages flowing therefrom, per Chandler and Leverette, but permits punitive damages for the
same failure to pay when that failure is cast, not as tort, but as breach of contract, per Riad. But
Riad’s own reasoning would foreclose it. If Riad is right about the force of Myint’s statement—
“nothing in . . . the bad faith statute . . . limits an insured’s remedies to those provided therein,”
Myint, 970 S.W.2d at 925—then that should apply to the tort of bad faith as well as to a claim for
punitive damages in contract. But Chandler expressly said otherwise, and nothing suggests that
Myint repudiated Chandler in toto, or that all the post-Myint cases reaffirming Chandler are
wrong. It seems far more plausible to me that Myint applied only to the TCPA.

       No Tennessee state court decision has relied on Riad’s sui generis reading of Myint. One
reason for this may be that the General Assembly legislatively reversed Myint’s holding in 2011
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                      Page 33


by enacting Tenn. Code Ann. § 56-8-113. That provision states that “title 50 and [title 56],”
which include the bad faith statute, “shall provide the sole and exclusive statutory remedies and
sanctions applicable to an insurer.” Id. § 56-8-113. Riad acknowledged Myint’s abrogation in a
footnote, see 436 S.W.3d at 274 n.3, but Riad did not need to address § 56-8-113 because it
involved a cause of action that accrued well before 2011.3 Here, however, the cause of action
accrued after § 56-8-113’s enactment, so Myint has limited, if any, bearing on this case.

        The majority dismisses the significance of Myint’s abrogation because § 56-8-113
provides that “[n]othing in this section shall be construed to eliminate or otherwise affect any . . .
[r]emedy, cause of action, right to relief or sanction available under common law.” According to
the majority, this statement “leaves intact Myint’s underlying conclusion” regarding the bad faith
statute and so does not alter Riad’s holding regarding the availability of punitive damages for
breach of contract. The problem with the majority’s reasoning is that neither Myint nor any
Tennessee case before Riad had affirmed that punitive damages were “available under common
law” for breach of an insurance contract. As discussed above, when the General Assembly
passed § 56-8-113 in 2011, all the caselaw on the subject held the opposite. And Riad was
decided after § 56-8-113 was passed, so the General Assembly could not have contemplated, and
ratified, Riad’s broad reading of Myint. Therefore, although § 56-8-113 preserved the common-
law status quo, there is no indication that it preserved the availability of punitive damages in a
case like this.

        In sum, there are good reasons to question Riad’s interpretation of Myint: Myint’s focus
on the TCPA, the absence of caselaw supporting Riad’s interpretation, the discordant Chandler
line of cases, and Myint’s legislative abrogation. And all of this is reason to doubt that the
Tennessee Supreme Court would agree with Riad and disapprove of this court’s reasoning in
Heil.   But most importantly, we need not wonder whether Myint controls this case.                         The
Tennessee Supreme Court has told us that Riad was wrong to think that it had settled matters in
Myint: “The issue of the availability of the common law remedy of punitive damages in addition

        3In   light of this, some federal district courts have construed Riad as applying only to pre-§ 56-8-113
actions. See Spring Place Church of God of Prophecy v. Bhd. Mut. Ins. Co., No. 1:13-CV-405, 2015 WL 12531988,
at *4 n.4 (E.D. Tenn. Mar. 16, 2015); Akers v. Allstate Prop. & Cas. Ins. Co., No. 2:14-CV-72, 2015 WL 11005023,
at *5 (E.D. Tenn. Sept. 28, 2015).
 Nos. 17-6034/6079          Lindenberg v. Jackson Nat’l Life Ins. Co., et al.           Page 34


to the statutory remedy of the bad faith penalty is one which has not before been addressed by
[the Tennessee Supreme] Court . . . .” Lindenberg, 2016 Tenn. LEXIS 390, at *2. Because we
thus have serious reason to doubt whether the Tennessee Supreme Court would agree with Riad,
I would stick with our own precedent, Heil. I would therefore reverse the district court and
vacate the punitive damages award.

                                                 III.

       Deciding whether Tennessee’s recently-enacted punitive damages cap comports with the
Tennessee Constitution is doubly unnecessary. Certification would place the construction of the
Tennessee Constitution in the hands of those entrusted with the document’s safekeeping.
Adhering to Heil would accomplish the same result. But after rejecting the Tennessee Supreme
Court’s assistance and our own precedent, the majority strikes down § 29-39-104 as infringing
the Tennessee Constitution’s jury trial guarantee. This doubly unnecessary holding is also
doubly dubious:       first, because it is not clear that the Tennessee Constitution’s jury trial
guarantee provides the rule of decision in this federal case; second, because any reasonable
doubts about whether § 29-39-104 infringes the jury right—and there are many—require us to
uphold the statute.

       A. The Unanswered Erie Question

       As a threshold matter, I question whether the contours of Tennessee’s constitutional jury
trial right are even relevant in this diversity case under Erie Railroad Co. v. Tompkins, 304 U.S.
64 (1938). It was not, after all, a Tennessee jury that assessed Lindenberg’s claim for punitive
damages. Because we are in federal court, a federal jury did that, and then a federal judge
applied Tennessee’s punitive damages cap to that jury verdict. “Under the Erie doctrine, federal
courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). Tennessee’s punitive damages cap is
undoubtedly substantive. See id. at 428–29. The damages cap would thus provide the rule of
decision in federal court unless it were preempted by federal statutory or constitutional law or
conflicted with a substantive provision of the state constitution. The question raised here is
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 35


whether an apparently procedural guarantee of the state constitution—the right to jury trial—can
provide the rule of decision in federal court.

        Lindenberg unquestionably has a Seventh Amendment right to have a federal jury
“determine the question of liability and the extent of the injury by an assessment of damages” in
her breach of contract suit. Dimick v. Schiedt, 293 U.S. 474, 486 (1935). But she abandoned her
Seventh Amendment challenge to the Tennessee punitive damages cap in the district court. Had
Lindenberg brought such a challenge, it would have failed. Binding caselaw from this circuit
rejected a Seventh Amendment challenge to Michigan’s cap on medical malpractice damages on
the ground that, in federal court, “the jury’s role ‘as factfinder [is] to determine the extent of a
plaintiff’s injuries,’ not ‘to determine the legal consequences of its factual findings.’” Smith v.
Botsford Gen. Hosp., 419 F.3d 513, 519 (6th Cir. 2005) (alteration in original) (quoting Boyd v.
Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989)). Other circuits addressing state damages caps
under the Seventh Amendment have reached the same conclusion. See Schmidt v. Ramsey,
860 F.3d 1038, 1045 (8th Cir. 2017) (rejecting Seventh Amendment challenge to Nebraska’s cap
on medical malpractice damages), cert. denied sub nom. S.S. ex rel. Schmidt v. Bellevue Med.
Ctr. L.L.C., 138 S. Ct. 506 (2017); Davis v. Omitowoju, 883 F.2d 1155, 1165 (3d Cir. 1989)
(“Where it is the legislature which has made a rational policy decision in the public interest, as
contrasted with a judicial decision which affects only the parties before it, it cannot be said that
[a damages cap statute] offends either the terms, the policy or the purpose of the Seventh
Amendment.”); Boyd, 877 F.2d at 1196 (rejecting Seventh Amendment challenge to Virginia’s
cap on medical malpractice damages). Moreover, as the majority acknowledges, the Supreme
Court has held that “[u]nlike the measure of actual damages suffered . . . the level of punitive
damages is not really a ‘fact’ ‘tried’ by the jury.” Cooper Indus., Inc. v. Leatherman Tool Grp.,
Inc., 532 U.S. 424, 437 (2001) (quoting Gasperini, 518 U.S. at 459 (Scalia, J., dissenting)).
These cases indicate that a federal court does not violate the Seventh Amendment by applying a
cap imposed by state law to limit a federal jury’s award of punitive damages.4


        4In Jones v. United Parcel Service, Inc., 674 F.3d 1187, 1203 (10th Cir. 2012), the Tenth Circuit refused to
apply a Kansas statute requiring the court—and not the jury—to determine the amount of punitive damages to be
awarded. Jones affirmed “that the Seventh Amendment protects a federal plaintiff’s right to have a jury determine
the amount of a punitive damages award.” Id. at 1204. But Jones also acknowledged that, under Cooper, punitive
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 36


Would a federal court violate Tennessee’s jury trial right by applying the state’s punitive
damages cap to limit a federal jury’s award of punitive damages? That Tennessee’s jury trial
right could be violated by capping the award of a non-Tennessee jury is certainly
counterintuitive. But whether that is indeed the rule would seem to depend, at least in part, on
whether the Tennessee jury trial right is substantive or procedural.

        On its face, the right to trial by jury seems manifestly procedural. See Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010) (plurality) (characterizing
a procedural rule as one that “governs only ‘the manner and the means’ by which the litigants’
rights are ‘enforced’” (quoting Miss. Pub. Corp. v. Murphree, 326 U.S. 438, 446 (1946))). The
Supreme Court has expressly held that “the right to a jury trial in the federal courts is to be
determined as a matter of federal law in diversity as well as other actions.” Simler v. Conner,
372 U.S. 221, 222 (1963) (emphasis added); see also Byrd v. Blue Ridge Rural Elec. Co-op.,
Inc., 356 U.S. 525, 535–40 (1958) (holding that plaintiff in diversity suit was entitled to jury trial
even though negligence claim would have been tried by judge in state court); Fed. R. Civ. P.
38(a) (“The right of trial by jury as declared by the Seventh Amendment to the Constitution—or
as provided by a federal statute—is preserved to the parties inviolate.”).

        Just as state law cannot shrink federal jury trial rights in federal court, see Simler,
372 U.S. at 222, I doubt whether state law could expand those rights. Could a litigant like
Lindenberg insist on a jury trial, otherwise unavailable in federal court, on the ground that state
statutory or state constitutional law required it? Although there are few cases on point, leading
authorities suggest that she could not. See James Wm. Moore et al., 8 Moore’s Federal Practice
– Civil § 38.14[2] (2018) (“When . . . the state would grant a jury trial but the federal law would
not, federal courts have held that federal law would also apply, and jury trial would be denied.”);
9 Charles Alan Wright et al., Federal Practice and Procedure § 2303 (3d ed. 2018) (“It now also
is clear that federal law determines whether there is a right to a jury trial in a case involving state


damages are not a finding of fact for the purposes of the Seventh Amendment’s Reexamination Clause. Id. at 1205.
Thus, Jones does not conflict with cases like Smith, Boyd, or Schmidt—or with the application of the damages cap in
this case where the jury was allowed the opportunity to determine, in the first instance, the amount of the punitive
damages award. Even if Jones did conflict with these cases, we would be bound by our own precedent, which has
squarely decided the question. See Smith, 419 F.3d at 519.
 Nos. 17-6034/6079         Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 37


law that has been brought in federal court, and that in such a circumstance, state law is wholly
irrelevant.”); Gasperini, 518 U.S. at 465 (Scalia, J., dissenting) (“[N]o one would argue that Erie
confers a right to a jury in federal court wherever state courts would provide it; or that, were it
not for the Seventh Amendment, Erie would require federal courts to dispense with the jury
whenever state courts do so.”). Before Erie, the Supreme Court upheld a federal court’s directed
verdict on contributory negligence even though the Arizona Constitution required that issue to be
left to the jury. See Herron v. S. Pac. Co., 283 U.S. 91, 92–94 (1931). And Herron seems to
have survived Erie. See Byrd, 356 U.S. at 538–40 (citing Herron); Hanna v. Plumer, 380 U.S.
460, 473 (1965) (same); see also Goar v. Compania Peruana de Vapores, 688 F.2d 417, 423 (5th
Cir. 1982) (noting that federal law “operates not only to require a jury trial when state law would
deny one . . . but it also requires trial of certain issues by a judge when state law might allow a
jury trial”).   I thus have reservations about whether the scope of Tennessee’s jury trial
guarantee—a facially procedural right—provides the rule of decision in the dispute before us.

        The majority, however, finds a substantive right—a right to unlimited punitive
damages—in the state’s procedural guarantee. Because this court has upheld damages caps in
the face of a Seventh Amendment challenge, see Smith, 419 F.3d at 519, the majority’s
substantive right must derive from an attribute Tennessee juries do not share with their federal
counterparts.   The majority claims that Tennessee juries have traditionally possessed the
authority to award punitive damages. But that does not seem to distinguish them from federal
juries. See, e.g., Day v. Woodworth, 54 U.S. 363, 371 (1851). The only difference the majority
identifies is that, in its view, Tennessee treats punitive damages as a “‘finding of fact’ within the
exclusive province of the jury,” impervious to judicial or legislative tinkering. In the federal
system, by contrast, “the level of punitive damages is not really a ‘fact’ ‘tried’ by the jury,”
Cooper Indus., Inc., 532 U.S. at 437 (quotation omitted), and we have upheld caps on even non-
punitive damages on the ground that “the jury’s role ‘as factfinder is to determine the extent of a
plaintiff’s injuries,’ not ‘to determine the legal consequences of its factual findings,’” Smith, 419
F.3d at 519 (quotation marks and alteration omitted). Tennessee law, as characterized by the
majority, thus differs from federal law in its assignment of decisionmaking authority over
punitive damages. But this difference would seem to be procedural, not substantive. See Schriro
v. Summerlin, 542 U.S. 348, 353 (2004) (“Rules that allocate decisionmaking authority in this
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                       Page 38


fashion are prototypical procedural rules . . . .”). And in federal court, federal procedural rules
control. See, e.g., 9 Charles Alan Wright et al., supra, § 2303.

        Still, I acknowledge that whether a state law is facially procedural may not, under the
Supreme Court’s Erie cases, be the end of the story. The Court has also applied an “‘outcome-
determination’ test” in light of the “twin aims of the Erie rule: discouragement of forum-
shopping and avoidance of inequitable administration of the laws.” Hanna, 380 U.S. at 468. If
the majority is right that Tennessee’s procedural jury trial guarantee comprises a substantive
right to unlimited punitive damages, refusing to apply that rule in federal diversity cases would
be outcome-determinative as to damages and could certainly encourage forum shopping. Would
that require us to apply Tennessee’s procedural rule? The authorities cited above suggest that
federal procedural rules would apply regardless, though there is some uncertainty over how the
Supreme Court would answer the question. See Shady Grove, 559 U.S. at 416–17 (Stevens, J.,
concurring) (“[T]here are some state procedural rules that federal courts must apply in diversity
cases because they function as a part of the State’s definition of substantive rights and
remedies.”); but see id. at 416 (plurality) (“The short of the matter is that a Federal Rule
governing procedure is valid whether or not it alters the outcome of the case in a way that
induces forum shopping. To hold otherwise would be to ‘disembowel either the Constitution’s
grant of power over federal procedure’ or Congress’s exercise of it.” (quoting Hanna, 380 U.S.
at 473–74)).

        In sum, though I do not claim to have solved this Erie puzzle, I fear there may be no basis
in this federal diversity action for adjudicating the constitutionality of Tennessee’s punitive
damages cap under Tennessee’s jury trial guarantee.5 In fairness to the majority, the parties have
not briefed this issue—instead, they assumed that the scope of the Tennessee jury trial right
decides this case. But before I would invalidate a state statute on the ground that it violates the



        5Some     federal courts have adjudicated challenges to state damage cap statutes based on the state
constitutions’ jury trial guarantees. See Boyd, 877 F.2d at 1195 (rejecting challenge based on Virginia
Constitution’s right to trial by jury); Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258–59 (5th Cir. 2013)
(rejecting challenge to Mississippi damage cap predicated on Mississippi Constitution’s jury guarantee after the
Mississippi Supreme Court declined to resolve the question via certification). But those decisions do not explain
why a state’s jury trial guarantee should apply at all, and both upheld the challenged statutes.
 Nos. 17-6034/6079          Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                 Page 39


state constitution, I would pause to ask whether the state constitutional question is even properly
before us.

        B. The Tennessee Constitution

        Addressing Lindenberg’s challenge under the state constitution, the majority concedes
that federal courts must be “extremely cautious about adopting ‘substantive innovation’ in state
law,” Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004) (citation omitted), and that
Tennessee statutes receive “a strong presumption” of constitutionality when facing state
constitutional challenges, Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006) (citation
omitted).    The Tennessee Supreme Court has even instructed that, “[w]hen addressing the
constitutionality of a [state] statute,” challenged on the ground that it violates the state jury trial
right, a court must “resolve any reasonable doubt in favor of the legislative action.” Helms v.
Tenn. Dep’t of Safety, 987 S.W.2d 545, 549 (Tenn. 1999). In other words, for the majority to
strike down the punitive damages cap, it must prove beyond “any reasonable doubt” that the
statute violates the Tennessee Constitution. The majority has not carried its burden.

        There are ample reasons to doubt the majority’s holding.            First, § 29-39-104 never
prevents the jury from doing what modern civil juries do: finding facts when facts are disputed.
Under § 29-39-104, the jury—which is not told about the cap—still performs its factfinding
function. It is only after the jury has done its job that the trial court applies state law to limit the
punitive damages award. This was essentially our reason for upholding Michigan’s cap on
medical malpractice damages against a Seventh Amendment challenge, see Smith, 419 F.3d at
519, and two state supreme courts have relied on similar reasoning to uphold statutes that limit
damage awards. As the Alaska Supreme Court explained, “[t]he decision to place a cap on
damages awarded is a policy choice and not a re-examination of the factual question of damages
determined by the jury.” Evans ex rel. Kutch v. State, 56 P.3d 1046, 1051 (Alaska 2002). “[T]he
jury has the power to determine the plaintiff’s damages, but the legislature may alter the
permissible recovery available under the law by placing a cap on the award available to the
plaintiff.” Id. (citation omitted). The Virginia Supreme Court made the same point in upholding
a statute limiting recovery in medical malpractice actions. See Etheridge v. Med. Ctr. Hosps.,
376 S.E.2d 525, 529 (Va. 1989) (“Once the jury has ascertained the facts and assessed the
 Nos. 17-6034/6079          Lindenberg v. Jackson Nat’l Life Ins. Co., et al.               Page 40


damages . . . the constitutional mandate is satisfied . . . [and] it is the duty of the court to apply
the law to the facts.” (citations omitted)).

        In this case, the State’s brief makes a similar argument by drawing an analogy to statutes
that provide treble damages. See, e.g., Tenn. Code Ann. § 47-50-109 (providing treble damages
for inducing breach of contract). Under § 47-50-109, the jury first determines the plaintiff’s
actual damages, and then the trial court trebles the jury’s finding so that the plaintiff receives the
remedy required by law. See Buddy Lee Attractions, Inc. v. William Morris Agency, Inc.,
13 S.W.3d 343, 359–60 (Tenn. Ct. App. 1999). But if a statute enlarging damages set by a jury
does not violate the jury right, it is hard to see why one reducing damages would do so—in a
civil case, the jury right may protect defendants as much as plaintiffs. See Caudill v. Mrs.
Grissom’s Salads, Inc., 541 S.W.2d 101, 106 (Tenn. 1976) (holding that trial judge abused its
discretion by denying a jury trial where, “at the first opportunity, . . . defendants sought to
exercise their constitutional right to a jury trial”). Several state supreme courts have cited the
existence of damage multipliers as a reason for upholding damages caps. See Arbino v. Johnson
& Johnson, 880 N.E.2d 420, 432 (Ohio 2007) (“We have never held that the legislative choice to
increase a jury award as a matter of law infringes upon the right to a trial by jury; the
corresponding decrease as a matter of law cannot logically violate that right.” (emphasis in
original)); Kirkland v. Blaine Cty. Med. Ctr., 4 P.3d 1115, 1119–20 (Idaho 2000) (concluding
that the historical existence of damage multipliers establishes that “the Framers could not have
intended to prohibit in the Constitution all laws modifying jury awards” because “at the time the
[Idaho] Constitution was adopted, the legislature had exercised its power to modify the common
law of damages and increase the liability traditionally imposed on certain defendants”).

        The majority responds that damage multipliers, unlike damages caps, “do not undercut a
jury’s assessment of damages.” This observation is true by definition. But whether a statute
undercuts or augments a jury’s award, such a statute interferes with the award the jury
considered sufficient compensation for the plaintiff in the case of compensatory damages, or
sufficient punishment for the defendant in the case of punitive damages. Here, the jury issued an
award that it considered enough to punish the defendant’s conduct. The majority apparently
believes that the General Assembly would not violate the jury trial right by insisting that this
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                          Page 41


figure be doubled, but could not order it halved. I cannot discern the principle underlying the
majority’s distinction because we know that both civil defendants and civil plaintiffs in
Tennessee enjoy the protections of trial by jury. See Caudill, 541 S.W.2d at 106.

         The majority also, somewhat confusingly, characterizes this line of reasoning as
“imply[ing] that § 29-39-104 is merely a regulation on the process of remittitur.” The majority
asserts that “the Tennessee Supreme Court has repeatedly rejected the General Assembly’s
attempts to regulate the exercise of remittitur[,] . . . a judicial power that may be influenced—but
not controlled—by the General Assembly.” But casting a punitive damages cap as remittitur
misunderstands the State’s and Jackson National’s arguments—arguments that this court and
others have found convincing.6

         The majority gives short shrift as well to the argument that the General Assembly’s
power to eliminate common law rights and remedies implies the power to limit punitive
damages. This too, one would think, could create a “reasonable doubt” as to whether such a
limitation violates the state’s jury guarantee. But the majority claims that “this argument merely
begs the question” because the General Assembly’s power is subject to “constitutional limits,”
so, like suggesting that “parents may drive as fast as they wish because the parents make the

         6Moreover,    the majority misconstrues the Tennessee cases involving remittitur. None of the three cases
cited by the majority supports its assertions about the General Assembly’s power over remittitur. Borne v. Celadon
Trucking Services, Inc., 532 S.W.3d 274, 309–10 (Tenn. 2017), explains that the General Assembly first enacted a
remittitur statute in 1911, thereby expressly authorizing remittitur “whenever the Trial Judge is of the opinion that
the verdict in favor of a party is so excessive as to indicate passion, prejudice, corruption, partiality, or
unaccountable caprice on the part of the jury.” Several years later, in Grant v. Louisville & N.R. Co., 165 S.W. 963,
965 (Tenn. 1914), the Tennessee Supreme Court indicated that courts could also suggest remittitur when a verdict
was merely “excessive.” The majority characterizes Grant as “rejecting” the 1911 remittitur statute. Far from it.
Grant states that the remittitur in question “was suggested because of passion and prejudice appearing to the circuit
judge, and under the very terms of the statute plaintiff below was entitled to accept under protest and appeal. The
Court of Civil Appeals affirmed the lower court, and this action was likewise justified by the very terms of the
statute.” Id. at 966 (emphasis added). So after suggesting that the statute did not provide the exclusive rationale for
suggesting a remittitur, Grant did not reject the statute, it applied it.
          Nor does Foster v. Amcon International, Inc., 621 S.W.2d 142, 145 (Tenn. 1981), imply some
constitutional rejection of “hard and fast rules in reviewing additurs and remittiturs” imposed by the General
Assembly, as the majority insinuates. In context, Foster’s reference to “hard and fast rules” concerns a prior
decision, Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978), which “was written with a view to providing the appellate
courts with guidelines, rather than hard and fast rules in reviewing additurs and remittiturs.” 621 S.W.2d at 145.
Foster nowhere purports to reject “hard and fast rules”—i.e., statutes—imposed by the General Assembly. In fact,
Foster goes on to modify the standard articulated in Shelton because “such an interpretation would contradict the
clear language and intent of the statute.” Id. at 147 (emphasis added). In other words, none of these cases questions
the General Assembly’s power to modify remittitur—if anything, they confirm that power.
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                          Page 42


rules,” this “ignores a key constraint on the rulemaker’s authority.” But the argument here is not
that the General Assembly can do whatever it wants. Rather, it is that the General Assembly’s
unquestioned ability to abrogate a common law remedy7 suggests that the legislature could also
limit, under some circumstances, that same remedy. The greater power generally includes the
lesser.8 So if the former does not violate Tennessee’s jury right, neither might the latter. The
argument at least deserves more response than the majority affords it.

         Finally, I wonder whether the majority has asked the wrong question entirely: whether
juries had any ability to award punitive damages, in any kind of case, at the time the Tennessee
Constitution was adopted. As the majority concedes, the Tennessee Constitution’s promise that
“the right of trial by jury shall remain inviolate,” Tenn. Const. art. I, § 6, does not guarantee the
right to a jury trial in every case. “Rather, it guarantees the right to trial by jury as it existed at
common law under the laws and constitution of North Carolina at the time of the adoption of the
Tennessee Constitution of 1796.” Young v. City of LaFollette, 479 S.W.3d 785, 793 (Tenn.
2015) (emphasis added) (quotation marks and alteration omitted).                         Therefore, the relevant
question would seem to be whether, in 1796, a North Carolina jury could have awarded punitive
damages in a case like this one—a common law breach of contract action.9 There is serious
reason to doubt that it could. As explained below, punitive damages were not available at
common law for breach of contract, with only narrow exceptions, not present here.



         7See,  e.g., Mills v. Wong, 155 S.W.3d 916, 922 (Tenn. 2005) (“[T]he Tennessee General Assembly has the
sovereign power prospectively to limit and even to abrogate common law rights of action in tort as long as the
legislation bears a rational relationship to some legitimate governmental purpose.”).
         8A better metaphor would therefore be that parents may determine how often their children may borrow the
family car because parents determine whether their children may borrow the car at all.
         9The   Tennessee Supreme Court has repeatedly employed a narrow inquiry when assessing whether a state
statute infringes the jury right—and it has repeatedly upheld the challenged statutes. See Marler v. Wear, 96 S.W.
447, 448 (Tenn. 1906) (finding no right to jury trial because “at common law no jury was impaneled in mandamus
cases” (emphasis added)); Jernigan v. Jackson, 704 S.W.2d 308, 309 (Tenn. 1986) (finding no right to jury trial
because “jury trials in tax cases were not authorized” in North Carolina in 1789 and 1796 (emphasis added));
Newport Hous. Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992) (“Although actions to recover possession of real
property existed at common law the particular action of unlawful detainer resulted from the evolution of the law
and did not appear in this State until passage of the first unlawful detainer statute in 1821.” (emphasis added));
Helms, 987 S.W.2d at 548 (“Our inquiry is whether at the time of 1796, North Carolina recognized civil forfeiture
proceedings with the right to jury trials.” (emphasis added)); Young, 479 S.W.3d at 794 (finding no right to jury trial
where statutory remedy for retaliatory discharge was “created long after the 1796 Constitution”).
 Nos. 17-6034/6079              Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                           Page 43


         The majority looks at this case through a broader lens—asking whether punitive damages
were ever determined by North Carolina juries in 1796.10 It does that, perhaps, because that is
the way it is used to evaluating such claims. If we were trying to decide the scope of the federal
jury trial right, our inquiry would focus not on whether the remedy Lindenberg seeks was one
“which the common law recognized among its old and settled proceedings,” but on whether the
remedy she seeks is legal, rather than equitable, in nature. See Curtis v. Loether, 415 U.S. 189,
193 (1974). Punitive damages being a “traditional form of relief offered in the courts of law,” id.
at 196, Lindenberg would have a right to have a federal jury determine them, though, as
discussed above, the Seventh Amendment would not bar application of a statutory damages cap,
see Smith, 419 F.3d at 519. And, under the Supreme Court’s decision in Curtis, Lindenberg’s
right to have a federal jury determine punitive damages would apply even “to new causes of
action created by” statute. 415 U.S. at 193. This is basically how the majority opinion proceeds.
Because punitive damages were available in some kinds of cases in North Carolina in 1796, and
because juries awarded those damages, the majority reasons that Lindenberg has a right to have
the jury determine punitive damages (and Tennessee may not cap them).11

         But Tennessee courts seem to apply the rule that Curtis rejected. Under Helms, when the
General Assembly creates new rights or remedies—regardless of whether they are legal or
equitable in nature—Tennessee’s jury trial guarantee does not apply. Helms, 987 S.W.2d at 547.
Would the Tennessee Supreme Court apply the rule in Helms to new common law remedies? See
Young, 479 S.W.3d at 793–94 (rejecting jury trial guarantee for statutory retaliatory discharge
claim and finding it significant that “even the common law tort of retaliatory discharge was only

         10The  majority suggests that this broader lens is fitting because Lindenberg’s “challenge in this case is to a
blanket statutory cap” that applies outside the breach-of-contract context. I take the majority to be suggesting that
Lindenberg’s challenge is facial, rather than as-applied. But assuming the facial nature of this challenge does not
help Lindenberg. A facial challenge to a statute is “the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525
(Tenn. 1993). And the Tennessee Supreme Court has stressed that “[t]he presumption of constitutionality applies
with even greater force when a party brings a facial challenge to the validity of a statute.” Waters v. Farr,
291 S.W.3d 873, 882 (Tenn. 2009). So if Tennessee’s punitive damages cap can be validly applied in a common
law breach of contract action—or in any other context—Lindenberg’s challenge necessarily fails.
         11Itis worth noting that only one of the North Carolina or Tennessee cases the majority relies on addresses
the question at issue here: whether the legislature can limit punitive damages awards. The one case? Rhyne v. K-
Mart Corp., 594 S.E.2d 1, 10–14 (N.C. 2004), which affirmed North Carolina’s statutory cap on punitive damages.
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                         Page 44


recognized by Tennessee courts in the 1980’s”). The court does not seem to have decided this
issue—another reason to certify the constitutional question rather than deciding it. But it is
worth pausing to ask this question here because, although we have a common law cause of action
(breach of contract) and a common law remedy (punitive damages), we have strong reason to
believe that a North Carolina jury in 1796 could not have awarded punitive damages for breach
of contract.

        North Carolina currently adheres to the established common law rule that “punitive
damages should not be awarded in a claim for breach of contract” absent an “identifiable tort”
that accompanies the breach. Shore v. Farmer, 522 S.E.2d 73, 76–77 (N.C. 1999); Restatement
(Second) of Contracts § 355 (“Punitive damages are not recoverable for a breach of contract
unless the conduct constituting the breach is also a tort for which punitive damages are
recoverable.”); 24 Williston on Contracts § 65:2 (4th ed.) (explaining that “exemplary or
punitive damages are not generally recoverable in breach of contract actions, even where the
contract is maliciously or intentionally breached”); 5 Corbin on Contracts § 1077 (1964) (“It can
be laid down as a general rule punitive damages are not recoverable for breach of
contract . . . .”); William S. Dodge, The Case for Punitive Damages in Contracts, 48 Duke L. J.
629, 630 (1999) (“Traditionally, punitive damages have not been available for breach of
contract.”).12 North Carolina recognizes two traditional exceptions to this rule, allowing punitive
damages for a “breach of contract to marry,” see Newton v. Standard Fire Ins. Co., 229 S.E.2d

        12Beginning    in California in the 1970s, some courts have allowed punitive damages where, as here, an
insurer has refused to pay a claim in bad faith. See Dodge, The Case for Punitive Damages in Contracts, 48 Duke
L. J. at 637–39; Timothy J. Sullivan, Punitive Damages in the Law of Contract: The Reality and the Illusion of
Legal Change, 61 Minn. L. Rev. 207, 241 (1977) (discussing “line of cases, originating in California, [that] has
sustained the award of punitive damages in actions originating in the alleged breach of an insurance contract”).
Since then, other state high courts have followed California in expanding the availability of punitive damages—
some by characterizing the breach of an insurance contract as sounding in tort. Dodge, 48 Duke L. J. at 638–42.
The North Carolina Supreme Court addressed this issue in Newton v. Standard Fire Insurance Co., 229 S.E.2d 297,
303 (N.C. 1976). But the court declined to decide whether it would follow the new rule because the claim was not
properly alleged. See id. at 303–04. Nevertheless, several decisions of the North Carolina Court of Appeals allowed
punitive damages for the breach of an insurance contract where “plaintiffs had sufficiently alleged a tortious act
accompanied by the requisite ‘element of aggravation.’” See, e.g., Von Hagel v. Blue Cross & Blue Shield of N.C.,
370 S.E.2d 695, 698–99 (N.C. Ct. App. 1988). But these decisions constitute an application of the rule that punitive
damages are permissible when a breach of contract is accompanied by an identifiable tort. They do not imply that
North Carolina has abandoned its traditional approach to breach of contract claims. And of course, legal
developments occurring in the 1970s and 1980s do not help us understand the purview of a North Carolina jury in
1796.
 Nos. 17-6034/6079             Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                          Page 45


297, 301 (N.C. 1976), and “a breach of duty to serve the public by a common carrier or other
public utility,” see King v. Ins. Co. of N. Am., 159 S.E.2d 891, 893 (N.C. 1968). Beyond these
narrow exceptions, juries in North Carolina lack discretion to award punitive damages for breach
of contract.

         I have uncovered no evidence suggesting that North Carolina juries ever possessed this
discretion. Early decisions of the North Carolina Supreme Court show that the state’s courts
have long denied juries such discretion in breach of contract actions. In an 1843 decision, the
Supreme Court of North Carolina explained that a jury’s ability to impose damages was strictly
constrained “in matters of contract”:

         It will never do in matters of contract to leave the question of damages to the
         arbitrary discretion of a jury.—There must be a rule whereby to assess them,
         although the application of that rule is with great propriety confided to the jury.
         And we know of no other that can legally be laid down, where there is no
         statutory provision on the subject, and the parties have not described any by the
         terms or nature of their contract, than that the person injured should be re-
         imbursed what he has lost, and if no loss be shewn by parol, should be re-
         imbursed to the extent of the loss which the law presumes.

Wood v. Skinner, 25 N.C. 564, 568 (1843) (per curiam) (emphasis in original). A breach of
contract action authorized a jury to render compensatory or nominal damages—nothing more.13
See, e.g., Richardson v. Wilmington & W.R. Co., 35 S.E. 235, 235–36 (N.C. 1900) (“There are
many cases where an action for tort may grow out of a breach of contract, but punitive damages
are never given for breach of contract (except in cases of promises to marry).”). This has long
been the common law rule in England and America.14


         13In Wood, the North Carolina Supreme Court acknowledged that compensatory or nominal damages
might seem inadequate for particularly egregious breaches of contract. 25 N.C. at 568–69. But the court held that
“these considerations are not for the court which tried the cause, nor are they for us. The constitution has provided
another department of the government, to whom they may properly be addressed, and with whom they will no doubt
have the weight to which they are entitled.” Id. at 569. In other words, the North Carolina legislature could have
authorized punitive damages in breach of contract actions, but juries had no inherent, or constitutional, power to
award them.
         14This country’s first treatise on the law of damages supports this proposition. See Theodore Sedgwick, A
Treatise on the Measure of Damages 27–28 (New York 1847); id. at 36 (“We shall find that in cases of contract, the
law takes no notice whatever of the motives of the defaulting party; that whether the engagement be broken through
inability or design, the amount of remuneration is the same . . . .”). Likewise, the earliest English treatise on
damages mentions no examples of juries awarding exemplary or vindictive damages in contract cases. See Joseph
 Nos. 17-6034/6079               Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                            Page 46


         Carruthers v. Tillman, 2 N.C. (1 Hayw.) 501 (1797), on which the majority principally
rests, does not suggest otherwise. Carruthers was a nuisance suit—not a breach of contract
action. 2 N.C. at 501. The evidence thus suggests that “the right to trial by jury as it existed at
common law under the laws and constitution of North Carolina at the time of the adoption of the
Tennessee Constitution of 1796” did not permit juries to award punitive damages in breach of
contract actions.15        Would the Tennessee Supreme Court hold that legislatively capping a
punitive damages award for breach of contract violates the right to trial by jury if a North
Carolina jury in 1796 could not have awarded punitive damages for breach of contract at all? I
do not know. But in my view, this question raises one more “reasonable doubt” that should
prevent us from striking down this statute.

         It is telling that the majority cites no decision of the Tennessee Supreme Court—not
one—that strikes down a law for violating the state constitution’s guarantee of trial by jury,
though there have been many such challenges.16 The Tennessee Supreme Court has made it very
clear that, even with respect to statutes that are alleged to infringe the right to trial by jury, it
“afford[s] considerable discretion to the General Assembly and resolve[s] any reasonable doubt
in favor of the legislative action.” Helms, 987 S.W.2d at 549. Because there are ample grounds
for doubt, I would uphold the statute.

Sayer, The Law of Damages (London 1770). And although the amount of damages to be given was originally in the
discretion of the jury, rules limiting damages for different types of contracts were becoming well-established by the
end of the eighteenth century. See George T. Washington, Damages in Contract at Common Law (pt. 2), 48 L.Q.
Rev. 90, 91–93 (1932) (discussing how new trial procedures and writs of inquiry led to development of concrete
rules for damages in contract). To the extent there is uncertainty about the authority of colonial juries, the
Tennessee Supreme Court has instructed us to resolve the uncertainty in favor of the challenged state law. Helms,
987 S.W.2d at 549.
         15The   parties seem to agree that modern Tennessee caselaw has diverged from the traditional rule when it
comes to awarding punitive damages. See Rogers, 367 S.W.3d at 211 n.14. But Tennessee looks to North Carolina
law to interpret its constitutional right to a jury trial, see Helms, 987 S.W.2d at 549, and there is no evidence that any
Tennessee divergence from North Carolina on this issue occurred in 1796. Indeed, one hundred and eighty years
later, Tennessee cases squarely proclaimed adherence to the “traditional” rule. See Hutchison v. Pyburn,
567 S.W.2d 762, 766 (Tenn. Ct. App. 1977) (“[P]unitive damages may not be recovered in an action for breach of
contract.”); Johnson v. Woman’s Hosp., 527 S.W.2d 133, 141 (Tenn. Ct. App. 1975) (“Under the contract theory of
the case punitive damages are not allowable . . . .”).
         16See    Marler, 96 S.W. at 448 (finding no constitutional right to jury trial in mandamus cases); Jernigan,
704 S.W.2d at 310 (finding no constitutional right to jury trial in tax cases); Ballard, 839 S.W.2d at 89 (finding no
constitutional right to jury trial in unlawful detainer actions); Helms, 987 S.W.2d at 549 (finding no constitutional
right to jury trial in civil forfeiture proceedings); Young, 479 S.W.3d at 793–94 (finding no constitutional right to
jury trial in retaliatory discharge action).
 Nos. 17-6034/6079            Lindenberg v. Jackson Nat’l Life Ins. Co., et al.                      Page 47


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        To close,17 I think there are sound reasons to dispute the majority’s conclusion that Heil
no longer binds us. And the majority’s hasty invalidation of Tennessee’s punitive damages cap
overlooks critical issues. Does Tennessee’s constitutional jury trial right even supply the rule of
decision in this case concerning a federal jury’s ability to award uncapped punitive damages?
And, if so, what of the credible counterarguments the majority opinion elides? Any reason to
question the majority’s opinion on this score is also a reason to certify these questions to a
willing Tennessee Supreme Court. If any federal court decision “risks friction-generating error,”
Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997), surely striking down a new
state law on novel state-constitutional law grounds would do so. Because the majority does so
today at the expense of comity and our cooperative federalism, I respectfully dissent.




        17The majority does not address Lindenberg’s claim that § 29-39-104 violates principles of separation of
powers under the Tennessee Constitution, so I do not address that claim either.
