                IN THE COURT OF APPEALS OF TENNESSEE

                                EASTERN SECTION                 FILED
                                                                December 9, 1997

RICHARD VARNER and                                          Cecil Crowson, Jr.
                                          ) C/A NO. 03A01-9706-CV-00238
                                                            Appellate C ourt Clerk
TERESA VARNER,                            )
                                          ) HAMBLEN CIRCUIT
       Plaintiffs-Appellees,              )
                                          ) HON. KENDALL LAWSON,
v.                                        ) JUDGE
                                          )
STEPHANIE K. PERRYMAN,                    )
FARM HOUSE FOODS, and                     )
HALE BROTHERS,                            ) AFFIRMED
                                          ) AND
       Defendants-Appellants.             ) REMANDED




W. DOUGLAS COLLINS, EVANS & BEIER, LLP, Morristown, for Plaintiffs-
Appellees.

DARYL R. FANSLER, STOKES, FANSLER & W ILLIAMS, Knoxville, for
Defendants-Appellants.




                                    OPINION


                                                        Franks, J.


              In this action arising from a motor vehicle accident, the Trial Judge

entered judgment for damages for plaintiffs, and apportioned fault. Defendant

Farmhouse Foods (“Farmhouse”) has appealed.

              On July 12, 1995, Mark Reich was delivering Farmhouse products to

Hale Brothers, Incorporated in Morristown. Reich parked defendant’s vehicle along

the north side of East Main Street, a two lane east-west street, and two other trucks

parked behind Reich. The evidence establishes that the nose of the Farmhouse truck

was approximately seven feet from the intersection of East Main and Cedar Street,

with Cedar Street being a one-way street that runs in a generally north-south
direction. As Stephanie Perryman approached the intersection of East Main on Cedar

Street, the trucks were parked to her left along Main Street. She testified that she

stopped and attempted to determine if it was safe to turn left onto Main but was

unable to see any westbound traffic. She further testified that she pulled out into the

intersection in a normal manner and was immediately struck by Plaintiff Richard

Varner’s vehicle. His wife, Teresa Varner, was a passenger.

              The Trial Court determined that Farmhouse was 90% at fault, and

Perryman 10% at fault for the accident. The court assessed Teresa Varner’s damages

at $31,863.02 and Richard Varner’s damages at $2,200.75. Plaintiffs were denied

discretionary costs. Appellant contends that the Trial Court erred in finding appellant

90% at fault. Our standard of review as stated by the Supreme Court, is as follows:

              Although it is true that the trier of fact has considerable latitude in
              allocating percentages of fault to negligent parties, see e.g., Martin v.
              Bussart, 292 Minn. 29, 193 N.W.2d 134 (1971), appellate courts may
              alter those findings if they are clearly erroneous. Because this case was
              tried without a jury, our review of the issues of fact is de novo on the
              record of the trial court. However, we must presume that the trial
              court’s findings were correct unless the preponderance of the evidence
              is otherwise. Tenn.Code Ann. § 27-3-103; Tenn.R.App.P. 13(d).

Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995).

              As we read Wright, the standard of review is de novo upon the record of

the Trial Court, accompanied by a presumption of the correctness of the finding,

unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). We

note the Minnesota case referred to in Wright in the same sentence with the “clearly

erroneous” standard was a jury case.    In non-jury cases, the preponderance of the

evidence standard governs.

              The evidence does not preponderate against the Trial Judge’s findings.

Generally:

              the percentage of fault assigned to each party should be
              dependent upon all the circumstances of the case, including such
              factors as: (1) the relative closeness of the causal relationship

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              between the conduct of the defendant and the injury to the
              plaintiff; (2) the reasonableness of the party’s conduct in
              confronting a risk, such as whether the party knew of the risk, or
              should have known of it; (3) the extent to which the defendant
              failed to reasonably utilize an existing opportunity to avoid the
              injury to the plaintiff; (4) the existence of a sudden emergency
              requiring a hasty decision; (5) the significance of what the party
              was attempting to accomplish by the conduct, such as an attempt
              to save another’s life; and (6) the party’s particular capacities,
              such as age, maturity, training, education, and so forth.

Eaton v. McClain, 891 S.W.2d 587, 592 (Tenn. 1994)(citations omitted).

              This list is not exclusive and not all factors are applicable in every case.

Id. at 593. Based upon all of the evidence and circumstances, the evidence does not

preponderate against the Trial Court’s determination of fault.

              The evidence shows that Reich parked Appellant’s truck close enough to

the intersection to block Perryman’s view. Perryman testified that while all three

trucks blocked her view, the Appellant’s truck was mainly responsible. She also

testified that she waited at the stop sign “at least two or three minutes” before

attempting to pull into East Main Street. She could not reverse her direction because

she was on a one way street, and although she could have presumably turned right

instead of left, there is no guarantee that this would have avoided an accident because

the her vision of westbound traffic was blocked. She also testified that Reich told her

he had already seen some “near misses” at the intersection.

              The investigating officer testified that due to the position of Appellant’s

truck, “the nose of your car would already be out in the intersection before you could

visually see anything.” He testified, without objection, that he thought appellant’s

truck “was a definite vision obstruction for Ms. Perryman and a primary contributing

factor to the accident.” We find no basis to alter the Trial Judge’s apportionment of

fault.

              Richard Varner testified that he suffered a bruised abdominal muscle as

a result of the accident, and that he first experienced pain about a week or two after

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the accident. As a result of the injury, he incurred medical bills of $628.75. These

bills were admitted pursuant to T.C.A. §24-5-113.

                The appellant argues that plaintiff did not offer sufficient evidence of

causation on this issue. Itemizing and attaching bills under T.C.A. § 24-5-113

constitutes prima facie evidence that the charges were necessary and reasonable.

However, a plaintiff must also establish that the charges were incurred as a result of

the defendant’s negligent conduct. See Lindsey v. Miami Dev. Co., 689 S.W.2d 856

(Tenn. 1985).

                Appellees did not offer any expert testimony concerning Richard

Varner’s injuries. Whether Varner’s testimony that he received a bruised stomach

muscle as a result of the accident is sufficient to prove causation depends upon

whether the bruised abdominal muscle is a sufficiently “simple” injury to permit a

layperson to testify to causation. See American ENKA Corp. v. Sutton, 391 S.W.2d

643 (Tenn. 1965).

                Varner’s injury is arguably more complex than mere cuts and abrasions.

However, a layperson can obviously testify to the presence of a bruise. Although

there is no testimony that the bruise manifested itself visually, plaintiff testified that

the stomach muscles were bruised in the accident, without objection. The evidence

does not preponderate against the Trial Judge’s finding on causation. T.R.A.P. Rule

13(d).

                Appellant also argues that the award of damages to Teresa Varner is

against the weight of the evidence. Teresa’s bills in the amount of $1,117.57 were

admitted pursuant to T.C.A. § 24-5-113. Dr. Unferth, a chiropractor who treated

Teresa, offered the opinion that the accident was the proximate cause of her injuries.

Although her medical bills admitted under the statute address charges for emergency

room visit, x-rays and prescriptions, which were incurred before her visit to Dr.


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Unferth, all of the treatment and tests relate to the same basic injuries and the doctor’s

testimony found credible by the Trial Judge was sufficient to establish causation.

              The Trial Judge awarded Teresa the full amount of her medical bills,

plus $1,435.50 in lost wages and $25,000.00 for pain and suffering. She testified she

was employed by Argo Medical Services before the accident but was unable to return

to this job because of its lifting requirements. She also testified to the numerous

limitations her injuries caused. Additionally, her husband corroborated her testimony

as to their limited activities, post-injury. Dr. Unferth was of the opinion that she

suffered a 5% permanent impairment as a result of the accident, with chronic residual

problems.

              The evidence does not preponderate against the Trial Judge’s findings.

              Next, appellant argues the Trial Court erred by refusing to reduce the

judgment against Farmhouse by the amounts already paid by defendants Hale Brothers

and Perryman in an earlier settlement, and relies on T.C.A. § 29-11-105(2)(b). This

section is part of the Uniform Contribution Among Tortfeasors Act, and provides:

              No evidence of a release or covenant not to sue received by
              another tort-feasor or payment therefor may be introduced by a
              defendant at the trial of an action by a claimant for injury or
              wrongful death, but may be introduced upon motion after
              judgment to reduce a judgment by the amount stipulated by the
              release or the covenant or by the amount of the consideration paid
              for it, whichever is greater.

              First, it is necessary to determine if this section has any application to

the facts of this case after Tennessee’s adoption of comparative fault. See McIntyre v.

Balentine, 833 S.W.2d 52 (Tenn. 1992). Although no reported Tennessee case has

directly addressed this issue, an Arizona Court of Appeals which determined that a

similar Arizona statute would not apply under similar circumstances is persuasive.

See Roland v. Bernstein, 828 P.2d 1237 (Ariz.Ct.App. 1992). Arizona has adopted

comparative fault by statute. However, the Roland Court articulated compelling


                                            5
policy reasons for its decision:

               In addition, we believe that it would be anomalous to give the benefit of
               an advantageous settlement, not to the plaintiff who negotiated it, but to
               the non-settling tortfeasor. Had plaintiff made a disadvantageous
               settlement , she would have borne that consequence because her
               recovery against [the non-settling defendant] would have been limited
               to [the amount of the non-settling defendant’s fault]. At a minimum,
               symmetry requires that if the disadvantage of settlement is hers so ought
               the advantage be. Beyond that, we see no reason why a non-settling
               tortfeasor ought to escape the liability that is his by reason of the faulty
               assessment of probabilities by a settling tortfeasor. Indeed, such a rule
               might well discourage settlement by the last tortfeasor on the reasoning
               that his exposure is limited to his degree of fault and even that might be
               reduced by reason of pre-existing settlements.

Id. at 1239.

               Moreover, other jurisdictions have reached similar results. See Wells v.

Tallahassee Mem’l Reg’l Med. Ctr. Inc., 659 So.2d 249 (Fla. 1995); Thomas v.

Solberg, 442 N.W.2d 73 (Iowa 1989); D.D. Williamson & Co. v. Allied Chem. Corp.,

569 S.W.2d 672 (Ky. 1978); Wilson v. Gault, 668 P.2d 1104 (N.M.Ct. App. 1983);

Charles v. Giant Eagle M arkets, 522 A.2d 1 (Pa. 1978); Haderlie v. Sondgeroth, 866

P.2d 703 (Wyo. 1993).

               Appellant contends that the Supreme Court’s decision in Bervoets v.

Hardy-Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn. 1994), supports applying

T.C.A. § 29-11-105(2)(b) in this case. Bervoets, is distinguishable from the present

case. First, in Bervoets the plaintiff had already released all defendants. Thus, the

case involved only an action for contribution between defendants. Also, a trier of fact

had not yet apportioned fault. In the instant case, appellant was required to pay an

amount representing 90% of the total judgment. Since this amount corresponds with

the Trial Court’s determination of fault, there is no basis on this record to find that the

appellant paid more than his fair share. In Bervoets, the driver’s settlement basically

provided consideration for the plaintiff to release all other potentially liable parties.

Thus, the guidelines suggested by the Court were appropriate to ensure that the driver


                                             6
did not pay more than his share of fault. The Court noted that “the defendant . . . is

essentially attempting to recover the amount paid by him in excess of his proportional

share of liability.” Id. at 908. These concerns are not applicable to the present case,

where the Appellant paid only for its own percentage of fault.

              We affirm the judgment of the Trial Court.

              Finally, appellees contend that the Trial Court erred in denying their

motion for discretionary costs. Costs were requested pursuant to Tennessee Rules of

Civil Procedure, 54.04. The Trial Court heard arguments on the issue and denied the

motion. The awarding of such costs is a matter within the sound discretion of the

Trial Court. Lock v. National Union Fire Ins., 809 S.W.2d 483 (Tenn. 1991). There

is no evidence in the record to indicate the Trial Judge abused his discretion.

              We affirm the judgment of the Trial Court and remand with costs of the

appeal assessed to the appellants.




                                           __________________________
                                           Herschel P. Franks, J.

CONCUR:




___________________________
Houston M. Goddard, P.J.




___________________________
William H. Inman, Sr.J.




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