DAVID NEAL THOMAS and               )
BRENDA THOMAS,                      )
                                    )
       Plaintiffs/Appellees,        )        Appeal No.
                                    )        01-A-01-9608-CV-00380
v.                                  )
                                    )        Davidson Chancery
MICHAEL S. CROCKETT and             )        No.   94C-1861
WILLIAM T. CROCKETT,                )
                                    )


and
       Defendants,                  )
                                    )
                                    )
                                                       FILED
                                    )                  February 28, 1997
AUTO OWNERS INSURANCE COMPANY, )
                                    )                 Cecil W. Crowson
       Unnamed Defendant/Appellant. )                Appellate Court Clerk


                    COURT OF APPEALS OF TENNESSEE

                     MIDDLE SECTION AT NASHVILLE


             APPEAL FROM THE COURT FOR DAVIDSON COUNTY

                        AT NASHVILLE, TENNESSEE


             THE HONORABLE WALTER C. KURTZ, CHANCELLOR




J. MITCHELL GRISSIM, JR.
THOMAS M. HORNE
Mitch Grissim & Associates
325 Union Street
Nashville, Tennessee 37201
           ATTORNEYS FOR DAVID NEAL THOMAS


JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee 37201
           ATTORNEYS FOR AUTO OWNERS




                        AFFIRMED AND REMANDED




                                                   SAMUEL L. LEWIS, JUDGE
                                    OPINION

          This is an appeal by unnamed defendant/appellant, Auto Owners Insurance
Company (“Auto Owners”), the uninsured/underinsured carrier of plaintiff/appellee,
David Neal Thomas, from the decision of the trial court which suggested an additur
of $12,500.00 to the judgment of $50,000.00 received by Mr. Thomas.


          On 18 June 1993, plaintiffs, David and Brenda Thomas, were involved in
an automobile accident on Nolensville Road. The accident occurred when Michael
Crockett crossed the center line and collided head-on into plaintiffs’ car. As a result
of the accident, Mr. Thomas suffered a displaced fracture of the right humerus and
a nondisplaced fracture of the patella. Dr. James Renfro performed surgery on Mr.
Thomas’ shoulder and immobilized his knee. On 14 June 1994, plaintiffs filed a
claim against defendants, Michael and William Crockett. Plaintiffs also served
process on Auto Owners, their insurance company. The named defendants and Auto
Owners filed answers to the complaint.


          Prior to trial, numerous actions occurred which limited the jury’s role to a
determination of Mr. Thomas’ damages. First, plaintiffs entered a voluntary dismissal
as to William Crockett. Later, Mrs. Thomas settled her case. Finally, Michael
Crockett, who had insurance limits of $25,000.00 per person per accident, admitted
liability. Thus, the only issue left for the jury was Mr. Thomas’ damages.


          The evidence at trial showed that Mr. Thomas’ medical expenses were
$23,050.51 and that his lost wages amounted to $2,340.00. Dr. Renfro testified at
trial by videotaped deposition. During the deposition, Dr. Renfro testified that Mr.
Thomas suffered a two percent impairment to the person as a whole as a result of the
knee injury and a seven percent impairment to the person as a whole as a result of the
shoulder injury. After hearing the parties’ arguments as to the amount of damages,
the jury determined that Mr. Thomas was entitled to $50,000.00 in compensatory
damages. On 16 February 1996, the trial court entered an order confirming the jury’s
award.


          On 23 February 1996, Mr. Thomas filed a “motion for new trial or in the


                                          -2-
alternative for an additur.” Mr. Thomas claimed that the jury’s verdict was “clearly
inadequate in light of the evidence.” Specifically, he argued that the jury’s award of
approximately $25,000.00 for past and future pain and suffering, loss of enjoyment
of life, permanent disability, and future loss of earning capacity was insufficient.
Michael Crockett filed a response to the motion which Auto Owners later adopted.
In addition, Michael Crockett’s insurer and Auto Owners each deposited $25,000.00
with the court clerk. On 25 March 1996, the court entered an order suggesting an
additur of $12,500.00. Auto Owners paid this amount into court under protest
pursuant to Tennessee Code Annotated section 20-10-101(b)(1).


         On 26 March 1996, Auto Owners filed a motion to alter or amend judgment.
The motion requested the court amend its decision awarding an additur and award
Auto Owners a judgment against Michael Crockett in the amount of $37,500.00. On
20 August 1996, the trial court entered an order awarding Auto Owners a judgment
against Michael Crockett in the amount of $25,000.00. The court reserved ruling on
whether to issue a judgment against Michael Crockett for the additional $12,500.00
pending a ruling from this court.


         On 24 April 1996, Auto Owners filed a notice of appeal as to the order
entered 25 March 1996. The trial court entered three orders after Auto Owners filed
the notice of appeal. On 26 April 1996, the court awarded Mr. Thomas discretionary
costs of $1,171.77. On 28 May 1996, the court granted Auto Owners’ unopposed
motion to stay all proceedings to enforce the judgment pursuant to Rule 62 of the
Tennessee Rules of Civil Procedure. Finally, on 31 May 1996, the court approved
an agreed order allowing Mr. Thomas to withdraw $50,000.00 from the funds held
by the court.


         Auto Owners’ only issue on appeal is “[w]hether the jury’s verdict of
$50,000.00 was both adequate and within the range of reasonableness and should be
restored where the appellee’s special damages were less than $25,000.00.”


         We review questions pertaining to additur pursuant to Tennessee Rule of
Appellate Procedure 13(d), i.e., we review the trial court’s decision suggesting
additur de novo accompanied by a presumption of correctness unless the

                                         -3-
preponderance of the evidence is otherwise. Tenn. Code Ann. § 20-10-101(b)(2)
(1994); Thraillkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994).


         In Foster v. Amcon International, Inc., 621 S.W.2d 142 (Tenn. 1981),
Justice Drowota, writing for the court stated:
                In Magness, Justice Cooper recognized the difficulties the
         trial and appellate courts were having in applying the guidelines
         of Smith v. Shelton when he stated, "[t]his is one of several cases
         where the application for permission to appeal has been granted
         to consider the issue of damages only. In each instance, the
         review has resulted from a misunderstanding by the trial court or
         the Court of Appeals of the holding of this court in Smith v.
         Shelton." In our opinion, part of these difficulties stem from the
         inflexible application of the range of reasonableness test
         (inflexible in that, if the verdict is within the range of
         reasonableness, the trial judge may not alter it). In Shelton the
         range of reasonableness test was formulated with the following
         guideline in mind:
                        The amount of the verdict is primarily for the
                jury to determine, and next to the jury the most
                competent person to pass upon the matter is the judge
                who presided at the trial and heard the evidence.
         569 S.W.2d at 427, citing Reeves v. Catignani, 157 Tenn. 173,
         176, 7 S.W.2d 38, 39 (1928). In considering additurs and
         remittiturs, other guidelines or factors must be given some, if less,
         consideration.
                In a leading and oft cited case on the constitutionality of the
         additur statutes, the Supreme Court of Minnesota made the
         following observations about the purpose of additur:
                        The practice of using additur is in the interest
                of the sound administration of justice . . . This practice
                avoids the necessity of a new trial with its
                accompanying expense and delay.
                Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854, 859
         (1957). See, also, Jehl v. Southern Pacific Co., 66 Cal.2d 821, 59
         Cal.Rptr. 276, 427 P.2d 988, 995 (1967). It need hardly be added
         that the concern for efficient judicial administration is even more
         pressing now than when Genzel was decided in 1957.
                Our additur statute gives the trial judge the authority to
         suggest an additur when in his opinion the verdict is not adequate.
         Shelton appears to have restricted the authority of the trial judge
         to suggest an additur when the jury verdict is within the range of
         reasonableness of the credible proof. However, such an
         interpretation would contradict the clear language and intent of
         the statute. The practice of using additur and remittitur is in the
         interest of the sound administration of justice. The practice
         avoids the necessity of a new trial with its accompanying
         expenses and delay. Genzel v. Halvorson, supra, and Jehl v.

                                          -4-
          Southern Pacific Co., supra.
                We therefore modify Shelton to the extent that trial judges
          may suggest adjustments when the jury verdict is within the range
          of reasonableness, as an alternative to the practice of granting a
          new trial, if they are of the opinion that the jury verdict is not
          adequate. T.C.A.§ 20-10-101. See also, T.C.A. § 20-10-102. In
          so holding, we do not intend to in any way alter our position that
          in personal injury cases the amount of compensation is primarily
          for the jury, and next to the jury, the most competent person to
          pass on the matter is the trial judge.

Id. at 146-47 (footnotes omitted). Here, the trial court concluded the verdict was
inadequate. We are of the opinion the evidence in this record fully supports the trial
court’s conclusion.


          Mr. Thomas suffered an injury requiring surgery and hospitalization. He
missed work for some six weeks and could only perform light duty for some four
weeks. Doctors treated Mr. Thomas for a period of one year during which time he
underwent three shoulder manipulations and a number of physical therapy courses.
As we have stated, Mr. Thomas incurred medical expenses of more than $23,000.00
and lost wages of $2,340.00. He will have permanent impairment to both his left
knee and right shoulder and will have difficulty and limitations in reaching and lifting
overhead for the remainder of his life. We agree with the trial court that the jury’s
verdict of $50,000.00 was inadequate to compensate Mr. Thomas for his injuries.
The evidence does not preponderate against the trial court’s suggestion of an additur
of $12,500.00.


          Therefore, it results that the judgment of the trial court is affirmed, and the
cause is remanded to the trial court for any further necessary proceedings. Costs on
appeal are taxed to unnamed defendant/appellant, Auto Owners Insurance Company.




                                            ____________________________________
                                            SAMUEL L. LEWIS, JUDGE

CONCUR:


_____________________________________
BEN H. CANTRELL, JUDGE



                                          -5-
_____________________________________
WILLIAM C. KOCH, JR., JUDGE




                                        -6-
