                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


ROLAND HAYES,                            )
                                         )
             Plaintiff/Appellant,        ) Shelby Circuit No. 36853 T.D. & 72286 T.D.
                                         )
VS.                                      ) Appeal No. 02A01-9610-CV-00251
                                         )
JOHN DOE and SHELTER                     )
INSURANCE COMPANY,                       )
                                         )
             Defendants/Appellees.       )


            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
              THE HONORABLE GEORGE H. BROWN, JR., JUDGE


                                                         FILED
                                                        September 4, 1997

RITA L. STOTTS                                          Cecil Crowson, Jr.
Memphis, Tennessee                                       Appellate C ourt Clerk
Attorney for Appellant



JAMES E. CONLEY, JR.
THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL
Attorney for Appellee, Shelter Insurance Company




AFFIRMED




                                                              ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
     In this automobile accident case, Roland Hayes (“Plaintiff”) filed suit against John
Doe (“Doe”) for damages sustained when Plaintiff was forced to drive off the road into a

tree in order to avoid a head-on collision with Doe’s vehicle. Plaintiff filed a second suit

against Shelter Insurance Company (“Defendant”) for Defendant’s alleged bad faith failure

to pay Plaintiff’s uninsured motorist claim under the insurance contract existing between

Plaintiff and Defendant. The trial court later consolidated Plaintiff’s negligence suit against

Doe with Plaintiff’s bad faith suit against the Defendant. After the parties stipulated that

the Defendant paid Plaintiff $11,262.89 prior to trial and after the jury returned a verdict of

$2,337 in favor of Plaintiff on Plaintiff’s negligence claim against Doe, the trial court held

that Plaintiff should recover nothing from the Defendant in accordance with the jury’s

verdict. Plaintiff appeals the judgment of the trial court arguing that the trial court erred in

consolidating Plaintiff’s negligence action against Doe with Plaintiff’s bad faith action

against the Defendant and in refusing to grant Plaintiff an additur or a new trial. For the

reasons stated hereafter, we affirm the judgment of the trial court.



                                           FACTS



       On January 4, 1990 at approximately 7:00 p.m., Plaintiff was driving east on

Simmons Road, a two-lane road. As Plaintiff proceeded along the road, Plaintiff noticed

an unidentified car traveling west on Simmons Road which had its lights on high beam and

was swerving. The unidentified car crossed the double line in the road and forced Plaintiff

to swerve right in order to avoid a head-on collision. Plaintiff swerved, struck a tree and

was injured.



       Plaintiff filed a negligence action in circuit court against Doe, the unknown driver,

and Plaintiff filed a second action in chancery court against the Defendant, alleging the

Defendant’s bad faith refusal to pay Plaintiff’s unisured motorist claim. These cases were

later consolidated and transferred to circuit court.



       The parties stipulated that the Defendant was Plaintiff’s uninsured motorist carrier

on January 4, 1990, the day of the accident, and that the Defendant paid Plaintiff



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$11,262.89 prior to trial.



       At trial, two eyewitnesses testified that they saw the unknown driver swerve in front

of Plaintiff’s vehicle, forcing Plaintiff off the road and into a tree.



       Dr. John Howser, a neurosurgeon, first examined the Plaintiff on May 18, 1983 after

Plaintiff had been involved in a car accident wherein Plaintiff was forced off the road and

into a ditch. Suffering from black-outs, dizziness, headaches, neck and low back pain,

Plaintiff was treated by Dr. Howser. Dr. Howser opined that Plaintiff was possibly suffering

from a ruptured disk.



       Dr. Howser next saw Plaintiff on May 21, 1986 after Plaintiff had been involved in

another automobile accident in which his head hit the windshield and he was jerked around

in the car. Plaintiff complained of neck pain, low back pain and headaches as a result of

this accident. Dr. Howser diagnosed Plaintiff as having cervical lumbar strain and opined

that Plaintiff possibly had a central ruptured disk. Plaintiff visited Dr. Howser again on

September 14, 1987 whereupon Plaintiff was experiencing no pain and was doing well.



       After the January 4, 1990 car accident, Plaintiff returned to Dr. Howser on January

9, 1990 complaining of neck pain, back pain and headaches. Plaintiff again visited Dr.

Howser on January 16, 1990, July 18, 1990, April 18, 1991, and on October 1, 1991. As

a result of Plaintiff’s January 4, 1990 accident, Dr. Howser opined that Plaintiff was

possibly suffering from a ruptured disk.



       After being mugged, struck in the head, and knocked unconscious on December 24,

1991, Plaintiff again visited Dr. Howser. Dr. Howser saw Plaintiff in February, March and

April 1992.



       Although Dr. Howser opined that Plaintiff was possibly suffering from a ruptured

disk, none of Dr. Howser’s tests confirmed the existence of a ruptured disk.



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       According to Plaintiff’s testimony, Plaintiff was treated in 1979 by Dr. Horn for head

and neck injuries after Plaintiff was involved in an automobile accident. Plaintiff was

involved in other automobile accidents in 1981, 1982, 1983, and in 1985 or 1986. In

Plaintiff’s 1982 car accident, Plaintiff was a passenger in a car which landed in a ditch and

hit a tree. Plaintiff filed suit and collected a judgment for his injuries sustained in the 1983

car accident. As a result of the 1985 automobile accident, Plaintiff experienced severe

neck pain, back pain and headaches. In 1986, Plaintiff was attacked by the police.



       Plaintiff pled guilty to leaving the scene of an accident which occurred on May 4,

1990. In October 1990, Plaintiff had another car accident on Simmons Road wherein

Plaintiff’s tire blew out. Plaintiff suffered neck pain, back pain and headaches as a result

of the October 1990 accident.



       Other insurance policies Plaintiff had in effect at the time of the January 4, 1990

accident in addition to the policy Plaintiff had in effect with the Defendant include: an

insurance policy with Mutual of Omaha issued on December 26, 1989, an insurance policy

with Associated Doctor’s Health issued on November 30, 1989, an insurance policy with

National Home Life issued on December 11, 1989 and a disability policy with Monumental

General Insurance Group.



       According to the testimony of Marie Cornelius, an administrator of medical insurance

employed by the Steam Fitters Local Union and Welfare Fund (“Steam Fitters”), Plaintiff’s

insurance with Steam Fitters went into effect on January 1, 1990. Plaintiff filed a claim with

Steam Fitters after his January 4, 1990 accident. Plaintiff filed another claim after being

hit by an unidentified object in July 1990. Another claim was filed by Plaintiff in October

1990 after Plaintiff was involved in a car accident. Plaintiff filed additional claims in March

1991, May 1991, August 1991, and September 1991 for injuries resulting from falling off

a horse. In October 1991, Plaintiff’s foot slipped out from under him as he was changing

a tire, and he filed another claim. Plaintiff filed a claim in December 1991 after being

attacked and beaten. On November 16, 1992, Plaintiff filed a claim for a sprained neck.



                                               4
On November 19, 1992, Plaintiff filed a claim for contusion of the face and skull.



       According to the testimony of Dr. Richard Ennis, an orthopaedic surgeon, Dr. Ennis

first saw Plaintiff during the mid-1980's for a back injury resulting from an automobile

accident. Dr. Ennis treated Plaintiff for a period of time following this accident, and

Plaintiff’s back finally healed. Dr. Ennis saw Plaintiff again on October 18, 1988 after

Plaintiff had been involved in an automobile accident on October 9, 1988 wherein Plaintiff

was a front seat passenger in a car which was forced to swerve in order to avoid a head-on

collision with another car. The car in which Plaintiff was riding struck a tree. Complaining

of headaches, neck pain, shoulder pain and lower back pain, Plaintiff was diagnosed as

having neck and low back strain.



       On January 29, 1990, Dr. Ennis treated Plaintiff for injuries resulting from his

January 4, 1990 car accident and diagnosed Plaintiff as having acute cervical strain and

acute lumbar strain. Dr. Ennis saw Plaintiff again on March 12, 1990 whereupon Plaintiff

still had some neck pain, but his back was much better. Dr. Ennis stated that there was

no evidence indicating that Plaintiff had suffered a serious injury as a result of his January

4, 1990 car accident and no evidence indicating that Plaintiff had a ruptured disk due to

this accident.



       Dr. Ennis next treated Plaintiff in July 1991 for injuries resulting from Plaintiff’s fall

from a horse. Complaining of injuries to his back and neck, Plaintiff was treated by Dr.

Ennis from July through November 1991 for injuries resulting from his fall off a horse. Dr.

Ennis opined that when he saw Plaintiff in July 1991, Plaintiff had fully recovered from his

car accident which occurred on January 4, 1990. Dr. Ennis opined that Plaintiff suffered

no permanent impairment as a result of his January 4, 1990 automobile accident.



       After examining Plaintiff on April 20, 1994, Dr. James Rodney Feild, a

neurosurgeon, stated that Plaintiff had no significant back problems, that Plaintiff had no

disability resulting from his January 4, 1990 car accident and that Plaintiff needed no



                                               5
further treatment. Dr. Feild opined that Plaintiff sustained a sprained back as a result of

the January 4, 1990 car accident, that Plaintiff should have been off work for forty-eight

hours, and that Plaintiff required no additional treatment after forty-eight hours of rest from

work. It was also Dr. Feild’s opinion that Plaintiff did not have a ruptured disk and that

Plaintiff falsified his clinical examination and symptoms. Upon reviewing a CAT scan of

Plaintiff’s lumbar spine, Dr. Feild stated that there was no evidence of disk herniation or

abnormality. None of Plaintiff’s tests revealed any sign of a ruptured disk or nerve

impingement which could cause pain.



                                               LAW



         The three issues raised on appeal are as follows:

         1) Whether the trial court erred in consolidating Plaintiff’s negligence action with

Plaintiff’s bad faith action;

         2) Whether material evidence exists to support the jury’s verdict; and

         3) Whether the trial court erred in refusing to grant Plaintiff an additur or a new trial.



         Plaintiff argues that the trial court erred in consolidating Plaintiff’s negligence action

with Plaintiff’s bad faith action. Plaintiff, however, has produced no evidence indicating that

Plaintiff objected to the trial court’s consolidation of the two actions. In absence of such

evidence, Plaintiff has waived his right to raise this as an issue on appeal. Ehrlich v.

Weber, 88 S.W. 188, 189 (Tenn. 1905); Harwell v. Walton, 820 S.W.2d 116, 119-20

(Tenn. Ct. App. 1991); Wright v. United Services Auto. Ass’n, 789 S.W.2d 911, 914 (Tenn.

Ct. App. 1990); Dement v. Kitts, 777 S.W.2d 33, 35 (Tenn. Ct. App. 1989); Yarbrough v.

Stiles, 717 S.W.2d 886, 887-88 (Tenn. Ct. App. 1986); Pyle v. Morrison, 716 S.W.2d 930,

936 (Tenn. Ct. App. 1986); Baxter v. Vandenheoval, 686 S.W.2d 908, 911 (Tenn. Ct. App.

1984).



         Review of findings of fact by the trial court in civil actions shall be de novo upon the

record of the trial court, accompanied by a presumption of the correctness of the finding,



                                                 6
unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d). Findings of fact

by a jury in civil actions shall be set aside only if there is no material evidence to support

the verdict. T.R.A.P. 13(d). In the instant case, Dr. Ennis testified that there was no

evidence indicating that Plaintiff had suffered a serious injury as a result of the January 4,

1990 car accident and no evidence indicating that Plaintiff had a ruptured disk due to the

accident. Dr. Ennis opined that Plaintiff suffered no permanent impairment as a result of

the January 4, 1990 automobile accident and that Plaintiff had fully recovered from any and

all injuries which he incurred due to the accident when Dr. Ennis examined Plaintiff in July

1991. In addition, Dr. Feild testified that Plaintiff sustained a sprained back as a result of

the January 4, 1990 car accident, that Plaintiff should have been off work for forty-eight

hours after the accident, and that Plaintiff required no additional treatment after forty-eight

hours of rest from work. Dr. Feild opined that Plaintiff incurred no disability from the

January 4, 1990 car accident, that Plaintiff had no significant back problems, and that

Plaintiff needed no further treatment. Dr. Feild further opined that Plaintiff did not have a

ruptured disk and that Plaintiff falsified his clinical examination and symptoms. Upon

reviewing a CAT scan of Plaintiff’s lumbar spine, Dr. Feild stated that there was no

evidence of disk herniation or abnormality. None of Plaintiff’s tests revealed any sign of

a ruptured disk or nerve impingement which could cause pain. Based on the foregoing

testimony, there is material evidence indicating that Plaintiff did not suffer a serious injury

as a result of the January 4, 1990 automobile accident, that Plaintiff did not incur a

ruptured disk due to this accident, and that Plaintiff suffered no permanent physical

impairment which was caused by the accident. We, therefore, affirm the jury’s verdict

which awarded Plaintiff $2,337.



       Because of our disposition of the foregoing issue, it is not necessary to address the

final issue raised on appeal.



       The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Appellant for which execution may issue if necessary.




                                              7
                           HIGHERS, J.




CRAWFORD, P.J., W.S.




FARMER, J.




                       8
