                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              April 5, 2005 Session

 J & M, INC., v. CLARENCE D. CUPPLES and CRETE CARRIER CORP.

                    Direct Appeal from the Circuit Court for Scott County
                    No. 09285      Hon. Conrad Troutman, Circuit Judge



                    No. E2004-01328-COA-R3-CV - FILED MAY 20, 2005


Plaintiff sued for damages incurred to correct condition of roadway caused by defendants’ motor
vehicle which destroyed a section of guardrail. Defendants appeal from Judgment awarding damages
to plaintiff on grounds damages were not proved. On appeal, we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

Archie R. Carpenter, Knoxville, Tennessee, for appellants.

Andrew R. Tillman, and Thomas M. Gautreaux, Knoxville, Tennessee, for appellee.



                                             OPINION


                In this action for damages, the Trial Court awarded plaintiff $14,360.00. The
defendants have appealed, insisting that the evidence preponderates against the decision of the Trial
Court as to the amount of damages suffered by plaintiff.

               The record establishes that defendant Cupples was an employee of Crete, acting in
the course of his employment at the time of the accident, and his vehicle struck a guardrail,
destroying a section which the parties stipulated to be 340 feet. Plaintiff was under contract with the
State of Tennessee to replace the guard rails along that section of the interstate, and after the
accident, the Department of Transportation directed plaintiff to “safen up” the area where the
accident occurred. Plaintiff submitted a bill for the alleged damage to Crete, which detailed 329 feet
concrete barrier rail at $30.00 a foot in the amount of $9,870.00; 20 vertical panels with posts at
$40.00 each, at $800.00; 340 foot guardrail salvage, $12.00 each at $4,080.00; 18 drums at $72.00
each, $1,296.00; traffic control supervisor - labor and equipment used, $1,600.00; overhead,
expenses and fringes, 20% of the sub-total for a total amount of $21,175.20. The defendant refused
to pay the billed amount and this action was filed.

                 As the issue before the Court was the amount of damages, the only person to testify
was Dwayne Potter, who was the vice president of plaintiff J & M. He testified that his company
was working on a two mile section of both the east and west bound sides of the interstate, and the
accident occurred on the east bound side at the top of the Papermill ramp. Potter testified that he
used portable concrete barrier rails, and was paid by the State for setting them up and moving them
to different areas. He explained that the guardrail was removed in areas in which they were working
and that portable concrete barrier rails were set up and then as they finished in one area and moved
to the next, the process would be repeated so that the barrier rails were “cycled”. He testified that
he was instructed by the Department of Transportation to place concrete barrier rails in the place
where the guardrail was torn out by defendants, “to safen it up”. Potter testified the concrete barrier
rail was unable to be “cycled” through the other part of the job site where they were currently
working, and that those barrier rails would have been recycled through 2-1/2 times before they got
to the site of the accident, based upon the progress of the job at that point.

                He testified that he also set up vertical panels with posts, which had reflective tape
to catch motorists’ attention. He billed for the lost salvage value of the 340 feet of guardrail taken
out by the truck, and he testified that his company could keep the guardrails which they dismantled
and resell them if they were in good condition.

                 On cross-examination, Potter admitted that his company owned most of the concrete
barriers that he used at the accident site, and that the State had contracted to pay his company for the
concrete barrier rails at $12.00 per square foot. He admitted that the vertical panels for which he
invoiced Crete at $40.00 each were owned by his company, and that the State also paid $20.00 each
for these. He further testified that most of the orange barrels were rented, and that the State had paid
him for 518 barrels at $45.00 each. He explained the $1,600.00 amount for “traffic control
supervisor-labor and equipment” was for him and the use of his pick-up truck. He was questioned
regarding the 20% “fringes” number, and he replied that this was “a common practice for additional
work”, and that making the accident site safe took 4 to 6 men away from their regular work for a day
and that he was not paid anything extra by the State as a result of the accident.

               At the conclusion of the trial, the Trial Court ruled:

               I think the Plaintiff is entitled to be reimburse. I think probably the billed amount is
               excessive. It’s hard to come up with a figure. No question that the Plaintiff has lost
               the guardrail he would have gotten, the 340 feet of used guardrail. If new guardrail
               runs nine dollars a foot, then used guardrail probably runs maybe four or five dollars
               a foot when there’s certain opportunities to sell it. I will set the damages in this at


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                11 thousand, plus four dollars a foot on the used guardrail. That would be $1,360;
                plus $2,000 for overhead expenses and supervision.

The Trial Court further explained:

                The 11 thousand dollars covers the vertical posts and moving the barriers in there,
                and they have got to be moved out again. Plus $1,360 for loss of guardrail, plus
                $2,000 for supervision and expenses.

Plaintiff’s counsel then asked for pre-judgment interest which the Court refused to award.

                The standard of review is de novo with a presumption of correctness of the trial
court’s findings of fact, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
McCarty v. McCarty, 863 S.W.2d 716 (Tenn. Ct. App. 1992). No presumption of correctness
attaches to the trial court’s legal conclusions. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87
(Tenn. 1993).

                As we have previously explained:

                The award of compensatory damages is reviewed with the presumption that it is
                correct and will only be set aside if the evidence preponderates against it or the trial
                court used the wrong measure of damages. Beaty v. McGraw, 15 S.W.3d 819, 829
                (Tenn. Ct. App.1998). . . . Moreover, while an award of compensatory damages must
                be based on reasonable certainty, it does not require mathematical certainty.

Wright Medical Technology, Inc. v. Grisoni, 135 S.W.3d 561, 595 (Tenn. Ct. App. 2001).

                Appellants argue that the damages claimed by plaintiff were too speculative and
uncertain to support the Trial Court’s award. However, a trial court’s award will be set aside if it
is against the preponderance of the evidence.

                Potter testified that he was seeking payment for the price of concrete barriers, vertical
posts, and orange barrels which were used to “safen up” the accident site. Defendants however,
point to the undisputed proof that the State had already paid for these items, and that plaintiff used
some of his own items at no additional out-of-pocket expense to the plaintiff. Defendants argued
this point strenuously in their brief and state: “the State paid plaintiff for the plastic barrels, concrete
barriers and sign panels plaintiff used.” While this is true, a collateral source rule which has long
been adopted in Tennessee, denies the defendants any credit for such payments. The collateral source
rule is a substantive rule of law that bars a tortfeasor from reducing damages owed to plaintiff by an
amount the plaintiff received from sources that are collateral to the tortfeasor. Jackson v. City of
Cookeville, 31 F.3d 1354, CA 6 (Tenn. 1994); Frye v. Kennedy, 991 S.W.2d 754 (Tenn. Ct. App.
1998); Steele v. Fort Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. Ct. App. 1994).



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               In this case the existence of damages is certain. There is no dispute that the guard rail
was destroyed and had to be replaced and that in the interim safety measures had to be taken until
the rail was replaced. Generally, damages from tortious conduct cannot be established with
mathematical certainty, which the Trial Judge took into account in this case, and he substantially
reduced the amount of damages claimed by plaintiff as a result of these uncertainties. See, Stevens
v. Moore, 139 S.W.2d 710, 179 (Tenn. Ct. App. 1940); Western Sizzler, Inc. v. Harry, 741 S.W.2d
334, 336 (Tenn. Ct. App. 1987).

               On this record, we cannot say the evidence preponderates against the Trial Court’s
factual determination of damages. Tenn. R. App. P. 13(d).

              Finally, appellee asks this Court to reverse the Trial Court’s refusal to award pre-
judgment interest. We find this issue to be without merit.

               We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to Clarence D. Cupples, and Crete Carrier Corporation.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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