                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    December 7, 2004 Session

    ROBERT STEVEN JOHNSON v. TENNESSEE FARMERS MUTUAL
                   INSURANCE COMPANY

                     Direct Appeal from the Circuit Court for Knox County
                             No. 1-106-98   Dale Workman, Judge



                    No. E2004-00250-COA-R3-CV - FILED MARCH 9, 2005



SHARON G. LEE, J., Dissenting

       I concur with the majority’s decision affirming the trial court’s denial of Tennessee Farmers
Mutual Insurance Company’s motion for directed verdict, but I respectfully dissent from the
majority’s decision reversing the jury’s verdict based on the jury charge and comments to the jury.
I would affirm the jury verdict in favor of the Plaintiff, Robert Steven Johnson.

         This case presents three issues: (1) whether there was sufficient evidence to allow a jury to
determine whether the insurer was guilty of bad faith relative to its refusal to settle the liability claim
against its insured; (2) whether the jury charge, considered in its entirety and as a whole, fairly
defined the legal issues involved and did not mislead the jury; and (3) whether statements made by
the trial court affected the jury verdict or resulted in prejudice to the judicial process.

        I agree with the majority’s decision that there was sufficient evidence to allow the jury to
determine whether the insurer was guilty of bad faith. But unlike the majority, I do not believe that
it was a close question, as there was an abundance of material evidence to support the jury’s verdict.

        In ruling on a motion for directed verdict, the trial court must take the strongest legitimate
view of the evidence in favor of the non-moving party, construe all evidence in that party’s favor and
disregard all countervailing evidence. Eaton v. McLain, 891 S.W. 2d 587, 590 (Tenn. 1994). The
trial court may grant the motion only if reasonable minds could reach only one conclusion from the
evidence. Id. Appellate courts apply the same standard in reviewing the trial court’s decision on a
directed verdict. Gaston v. Tennessee Farmers Mutual Insurance Company, 120 S.W. 3d 815, 819
(Tenn. 2003).

        This case began over 10 years ago when a vehicle driven by Robert Steven Johnson left its
lane of travel, crossed a median, and struck a vehicle in the oncoming lane driven by Christopher J.
Moore. Johnson testified he was attempting to dodge a white van driven by John Doe, although there
was no contact between Johnson and the white van. Moore was very seriously injured and sued
Johnson for damages. The jury awarded Moore the amount he sued for - $387,500 - finding Johnson
50% at fault and John Doe 50% at fault. Johnson appealed the adverse verdict to this court and, in
rendering our decision, we said:

                Construing the evidence as we must, we find that there is material
                evidence in the record to support a finding that the defendant
                [Johnson] was 50% at fault for the accident. The defendant testified
                that he was traveling between 53 and 57 miles per hour when he
                attempted to pass the white van. The speed limit at the site of the
                accident was 55 miles per hour. Thus, the jury could have reasonably
                concluded from all of the evidence, especially the dynamics of the
                accident, that the defendant was traveling in excess of the posted
                speed limit when the van [John Doe] swerved into his lane. There is
                also material evidence from which the jury could have concluded that
                the defendant’s speed adversely affected his ability to control his
                vehicle and avoid a collision with the plaintiff’s vehicle as he moved
                his vehicle to the left. The defendant testified that the van came about
                halfway into this lane, i.e., about six feet. The evidence reflects that
                each lane of the highway was 12 feet wide, and the paved median
                separating the northbound and southbound lanes were 4 feet wide.
                The defendant’s vehicle was 5 feet wide. From these facts, the jury
                could have reasonably concluded that the defendant had sufficient
                room to avoid the white van without hitting the plaintiff’s vehicle and
                that his failure to do so was because of his speed.

                The trial court was correct in denying the defendant’s motion for
                directed verdict. There is material evidence to support the jury’s
                verdict allocating 50% of the fault to the defendant.

Moore v. Johnson, No. E2000-00385-COA-R3-CV, 2000 WL 1424930, at * 2-3, 2000 Tenn. App.
LEXIS 633 at * 6-8, (Tenn. Ct. App. E.S., filed Sept. 26, 2000) appl. perm. appeal denied March
19, 2001.

         After his defeat at the hands of the jury and his loss in the appellate court, Robert Steven
Johnson sued Tennessee Farmers Mutual Insurance Company alleging bad faith, and specifically bad
faith by failing to conduct a proper investigation; bad faith by failing to evaluate Plaintiff’s exposure
to liability under comparative fault; bad faith by failing to exercise good faith and diligence in
protecting the interest of the insured; bad faith by subjecting the insured to an unreasonable risk of
personal liability; bad faith by failing to place the interest of its insured equal to its own; and bad
faith in failing to reasonably negotiate a compromise settlement based on knowledge of facts which
would lead the insurer to know that there was a likelihood that a jury would render a substantial
verdict against its insured in excess of his liability policy limits.


                                                  -2-
        Tennessee Farmers Mutual Insurance Company decided within 2 weeks of the collision that
no settlement would be offered to Moore. Tennessee Farmers Mutual Insurance Company never
changed its position as to liability as the case proceeded to trial twenty-eight months later. Given the
severity of Christopher Moore’s injuries, the inference of speed on the part of Robert Steven
Johnson, the width of the lanes, the absence of contact with the John Doe vehicle, and the low limits
of Robert Steven Johnson’s liability insurance policy, it was certainly foreseeable that a jury would
place some degree of fault on Robert Steven Johnson and return a verdict in excess of Johnson’s
policy limits. Did these actions of the part of Tennessee Farmers Mutual Insurance Company
constitute bad faith? The jury decided that it did and I agree.

        Robert Steven Johnson paid Tennessee Farmers Mutual Insurance Company a premium and
in return Tennessee Farmers Mutual Insurance Company agreed to insure Robert Steven Johnson
according to the terms and conditions of its insurance policy. Robert Steven Johnson owed
Tennessee Farmers Mutual Insurance Company the duty of full cooperation. Tennessee Farmers
Mutual Insurance Company owed Robert Steven Johnson the duty of exercising good faith and
diligence in protecting Robert Steven Johnson’s interest since Tennessee Farmers Mutual Insurance
Company had exclusive control over the investigation, settlement, and litigation of the claim.
Southern Fire & Casualty Co. v. Norris, 35 Tenn. App. 657, 250 S.W. 2d 785 (Tenn. Ct. App. 1952),
Aycock Hosiery Mills v. Maryland Casualty Co., 157 Tenn. 559, 11 S.W. 2d 889 (Tenn. 1928), State
Automobile Ins. Co. v. Rowland, 221 Tenn. 421, 427 S.W. 2d 30 (Tenn. 1968), Tennessee Farmers
Mutual Ins. Co. v. Hammond, 43 Tenn. App. 62, 306 S.W. 2d 13 (Tenn. App. 1957), See Fleissner
& Campbell, Tenn. Automobile Liability Insurance (2002 ed.), § 8-2, § 8-3.

         “[I]n order to honestly discharge its duty to compromise within the policy limits, an insurer
must exercise ordinary care and diligence in the investigation of the accident and the extent of the
damage for which the insured may be held liable.” Southern Fire & Casualty Co. v. Norris, 250 S.W.
2d at 790. [Emphasis added]. Tennessee Farmers Mutual Insurance Company’s conduct departed
from the required standard of care. As discovery proceeded and more facts were learned about the
collision, Tennessee Farmers Mutual Insurance Company never changed from its initial position that
its insured was not at fault and therefore no settlement offer would be made to Moore. This was true
despite facts which should have put Tennessee Farmers Mutual Insurance Company on notice of the
need to reevaluate its position, such as speed on the part of its insured, the insured’s apparent
inattention to the roadway conditions, the width of the lanes, the width of the median, and the
position of the John Doe vehicle in the insured’s lane of travel. Moreover, it does not appear that
Tennessee Farmers Mutual Insurance Company at any time considered the extent of damages
sustained by Christopher Moore and the likelihood of a large verdict. Under comparative fault, the
extent of damages of the injured party and the possibility of some fault being placed on the insured
cannot be ignored by the insurer in deciding whether to engage in settlement negotiations.

        The insured has the burden of proving that the insurer acted in bad faith. Southern Fire &
Casualty Co. v. Norris, 250 S.W. 2d at 790-791. A departure from the standard of ordinary care in
the investigation and settlement of claims can result in liability for bad faith on the part of the
insurer. Aycock Hosiery Mills v. Maryland Casualty Co., 11 S.W. 2d at 892.


                                                  -3-
        Bad faith is generally proven by circumstantial evidence. Facts which have supported
findings of bad faith are negligence in the investigation of the case, Southern Fire & Casualty Co.
v. Norris, 250 S.W. 2d at 791; indifference to the interest of the insured, Coppage v. Fireman’s Fund
Ins. Co., 379 F. 2d 621, 623 (6th Cir. 1967); Roberts v. American Fire & Casualty Co., 89 F. Supp.
827 (1950); Vanderbilt University v. Hartford Accident & Indemnity Co., 109 F. Supp. 565 (1952);
willingness on the part of the insurer to gamble with the insured’s money in an attempt to save its
own money, Goings v. Aetna Casualty & Surety Co., 491 S.W. 2d 847, 851 (Tenn. Ct. App. 1972),
Tennessee Farmers Mutual Ins. Co. v. Wood, 277 F. 2d 21, 34 (6th Cir. 1960); disregard of the
financial interests of the plaintiff in the hope of escaping full liability; and failure to keep the insured
advised of the status of the case, Goings v. Aetna Casualty & Surety Co., 491 S.W. 2d at 851,
Southern Fire & Casualty Co. v. Norris, 250 S.W. 2d at 791.

        Bad faith can be premised on conduct that is either fraudulent or in bad faith. Southern Fire
& Casualty Co. v. Norris, 250 S.W. 2d at 790. There was no allegation or proof that Tennessee
Farmers Mutual Insurance Company engaged in fraudulent or dishonest activity. Failure to exercise
good faith in regard to its duties towards its insured is a sufficient basis for liability on the part of
the insurer. MacLean v. Tennessee Farmers Mutual Ins. Co., No. O1A-01-9407-CH-00320, 1994
WL 697857, 1994 Tenn. App. LEXIS 735 (Tenn. Ct. App., filed Dec. 14, 1994).

         There was sufficient evidence for the jury to find that Tennessee Farmers Mutual Insurance
Company failed to conduct a proper investigation and failed to properly evaluate Plaintiff’s exposure
to liability. Tennessee Farmers Mutual Insurance Company failed to consider all the relevant factors
and chose to rely solely on its initial determination that Johnson was 0% at fault. This tunnel vision
resulted in a verdict in excess of Johnson’s policy limits.

     There was ample circumstantial evidence of Tennessee Farmers Mutual Insurance
Company’s failure to act with due diligence based on its apparent failure to consider:

        •        the severity of Moore’s injuries:
                        Moore’s undisputed injuries included a fractured skull and resulting
                        damages to the frontal lobes of his brain; a crushed right eye; broken
                        nose; broken jaws; chipped teeth; upper lip ground off; fingers of his
                        left hand partially ground off; scars on his face, shoulders, and hands;
                        broken back; and a loss of hearing in his right ear. This resulted in
                        memory problems; speaking problems; vision problems; guitar
                        playing problems and a loss of smell and taste. His medical bills were
                        stipulated to be $75,000.00.

        •       the extent of Johnson’s liability insurance coverage:
                        $25,000 - the bare statutory minimum in Tennessee.




                                                    -4-
       •       Johnson’s liability:
                     According to Johnson’s testimony, John Doe, the driver of the van,
                     came about 6 feet into his lane; each lane of the highway was 12 feet
                     wide; the paved median separating the northbound and southbound
                     lanes was 4 feet wide; Johnson’s vehicle was 5 feet wide; Johnson
                     was traveling at 53-57 mph and the speed limit was 55 mph; there
                     was no contact between the white van and Johnson; Johnson could
                     remember the name of the rock group that was playing on the radio
                     at the time of the crash; and Johnson never observed Moore
                     approaching him in the on-coming lane before the crash.

       •       the law:
                      Under the law of comparative fault, the jury could apportion fault
                      between the two drivers- Johnson and John Doe.

         There were more than sufficient facts from which the jury could reasonably have concluded
that Johnson was at least partially at fault for the collision and that Moore, being seriously injured,
was entitled to a large verdict. Thus, the conclusion that a large verdict was likely with some degree
of fault assigned to Tennessee Farmers Mutual Insurance Company’s insured was not only
foreseeable, but almost certain. To make matters worse, Johnson had minimal policy limits of
$25,000 and so, even a 10% finding of fault by the jury as to Johnson could result in an excess
verdict and expose Johnson to personal liability. Thus, once Tennessee Farmers Mutual Insurance
Company decided not to negotiate on behalf of its insured and not to accept the injured party’s offer
to settle for the policy limits of Johnson’s coverage, the die was cast and the likely outcome was not
favorable to the insured. All of these factors taken together point to a lack of due diligence on the
part of Tennessee Farmers Mutual Insurance Company. It was not fraudulent or dishonest activity,
but rather, a failure to consider all the relevant factors that constituted bad faith in this case.

         Although Tennessee Farmers Mutual Insurance Company was following the advice of
counsel in not offering Moore a settlement, advice of counsel is not a complete defense. Counsel
often gives his or her advice and recommendations in the heat of battle. Tennessee Farmers Mutual
Insurance Company was required to objectively evaluate the case and the possibility of its insured’s
liability and could not blindly follow the advice of its attorney. Reliance on the advice of counsel is
just one factor to review in considering whether the insurer acted with due diligence and does not
insulate the insurer from a bad faith excess judgment. Cotton States Mutual Ins. Co. v. Trevethan,
390 So. 2d 724, 728 (Fla. Dist. Ct. App.1980), See Annotation, Reliance On, Or Rejection Of,
Advice Of Counsel As Factor Affecting Liability In Action Against Liability Insurer For Wrongful
Refusal To Settle Claim, 63 A.L.R. 3d 725 (1975). In this case, counsel’s advice was neither
dishonest nor fraudulent, just wrong, and Tennessee Farmers Mutual Insurance Company owed its
insured its own objective, informed judgment.

       Tennessee Farmers Mutual Insurance Company cannot escape liability for bad faith by
making what it believes to be an honest dollar evaluation against its insured. Goings v. Aetna
Casualty & Surety Co., 491 S.W. 2d at 850-851 (Tenn. Ct. App. 1972). It is from all of the relevant

                                                 -5-
circumstances that the issue of good faith is to be determined. Tennessee Farmers Mutual Insurance
Company only considered the version of facts supporting the insured’s lack of liability and did not
consider Moore’s serious injuries, the possibility of some fault being placed on its insured, the
potential verdict, the insured’s low policy limits, and the consequences of failure to settle as to the
insured.

       In this case, Tennessee Farmers Mutual Insurance Company could have paid $25,000.00 to
Moore under the liability portion of Johnson’s policy and forever ended Johnson’s exposure.
Johnson’s private counsel requested this settlement on his behalf and Moore’s counsel in the
underlying tort action offered to settle for the limits of Johnson’s policy. However, Tennessee
Farmers Mutual Insurance Company elected to pay Moore $25,000.00 under Moore’s uninsured
motorist policy thereby leaving Johnson exposed to an excess verdict. This was circumstantial
evidence from which the jury could have concluded that Tennessee Farmers Mutual Insurance
Company was indifferent to the interests of the insured or failed to consider all the relevant factors.

        Therefore, the jury had abundant evidence on which to base its finding of bad faith on the
part of Tennessee Farmers Mutual Insurance Company.

        The next issue for review is whether the trial court erred in not charging four of Tennessee
Farmers Mutual Insurance Company’s requested jury instructions. When issues regarding the jury
charge are raised on appeal, we review the jury charge in its entirety and consider it as a whole in
order to determine whether the trial court committed prejudicial error. The jury charge will not be
invalidated as long as it fairly defines the legal issues involved and does not mislead the jury. Otis
v. Cambridge Mutual Fire Ins. Co., 850 S.W. 2d 439, 446 (Tenn. 1992).

       The charge given to the jury by the trial court tracked the law regarding bad faith as set forth
in Southern Fire & Casualty Co. v. Norris, and provided in pertinent part as follows:

               In this case the plaintiff sues the defendant for bad faith under his
               liability insurance policy for failure to settle within the policy limits.
               In a prior lawsuit against the plaintiff by Christopher Moore, a jury
               has previously awarded a judgment against the plaintiff for an amount
               in excess of the limits of liability under the policy issued to the
               plaintiff by the defendant. The issue for the jury to decide is whether
               the insurance company’s decision not to settle and submit that case
               to the jury was quote “bad faith” end quote.

               An insurance company has a duty to deal fairly with the insured and
               act honestly according to its best judgment. An insurance company
               has no duty to settle a claim against an insured merely because a
               settlement can be made within the policy limits.

               A mere mistake in judgment by the insurance company does not
               constitute quote “bad faith” end quote. Quote “bad faith” by the

                                                  -6-
insurance company is, one, failure to investigate a claim to such an
extent that it would be in a position to exercise honest judgment as to
whether a claim should be settled, or two, failure to fairly consider the
facts relative to the accident and a claimant’s injuries known to it
whether they are the actual facts or not and deciding whether the
insured should or should not settle, or three, failure of the insured
with the right to control the litigation and settlement to fairly consider
the rights and interest of the insured as compared to the interest of the
insurance company.

The insured has the burden of proof to establish by a preponderance
of the evidence that the insurance company acted in bad faith by not
settling the claim within the policy limits prior to the trial of the
claim. An insurance company has a right to assume that the insured
is acting in good faith and telling the truth when he furnishes
information concerning the facts and circumstances surrounding the
act or acts over which the claim arises. Good faith requires the
company to investigate the claim to such an extent that it will be in
a position to exercise an honest judgment as to whether the claim
should be settled. The material question is not what the actual facts
of the accident were, but whether the facts relative to the accident and
injuries were known to the insured and its agents which they should
have considered in deciding whether it should or should not settle an
action brought against the insured as a reasonable thing to be done.
A mere mistake in judgment will not constitute bad faith, that is, if
the insurer dealt fairly with the insured and acted honestly and
according to its best judgment, it is not liable as it owed its insured no
duty to settle merely because a settlement could be made within the
limits of the policy. The insured surrenders to the insurer the right to
investigate and compromise or contest claims knowing that in the
event of a claim the insurer will have its own interest to consider. But
the insured also has a right to assume that his interest will not be
abandoned merely because the insurer faces a prospect of a full loss
under the policy. The relationship is one of trust, calling for
reciprocity of action. The insured, you understand under his policy,
owes a duty of full cooperation; the insurer, the duty of exercising
good faith and diligence in protecting the interest of its insured. And
insurer cannot escape liability for bad faith by considering only what
appears to be for its own interest. It must also equally consider the
impact of its decisions upon its insured and deal fairly and in good
faith.

If Tennessee Farmers made an honest and fair investigation of the
claim against Robert Johnson and exercised reasonable judgment

                                   -7-
                    based upon that investigation, then a mistake in judgment is not bad
                    faith and will not render it liable for failure to settle the claim.
                    There’s no duty to settle a claim merely because settlement could
                    have been reached within the policy limits. If a failure to negotiate a
                    settlement is a result of a reasonable business judgment made after
                    weighing all of the interests, then there is no liability, even if the
                    decision not to settle turns out to be quite wrong. Tennessee Farmers
                    was not guilty of bad faith if it had an honest belief under all the
                    circumstances that Robert Johnson’s actions were not the proximate
                    cause of the accident, and all liability would be avoided on that basis.

         Tennessee Farmers Mutual Insurance Company’s first requested jury charge, identified as
    1
“A” in the majority opinion, is a correct statement of the law of bad faith in Tennessee as set forth
in Southern Fire & Casualty Co. v. Norris. This requested charge was not necessary because it was
already included in the charge with the exception of the reference to “fraudulent.” This was not in
error because the plaintiff never alleged that the Tennessee Farmers Mutual Insurance Company’s
conduct was fraudulent; the plaintiff never proved that the Tennessee Farmers Mutual Insurance
Company’s conduct was fraudulent. Therefore, there was no reason for the trial court to charge the
jury that refusal to settle “must be fraudulent or in bad faith.” The only issue was whether the refusal
to settle was in bad faith.

         Tennessee Farmers Mutual Insurance Company’s second requested jury instruction, identified
as “B”2 in the majority opinion, defines bad faith as importing a “dishonest purpose, moral obliquity,
conscious wrongdoing, breach of a known duty through some ulterior motive or ill will or partaking
of the nature of fraud, and it embraces an actual intent to mislead or deceive another.” In Tennessee,
it is not necessary to prove fraud or dishonest conduct to succeed in a bad faith refusal to settle a
case. Bad faith can be proven by circumstantial evidence of a lack of diligence in investigation and
settlement of the claim. It is sufficient to show for example, the willingness of the insurer to gamble
with the insured’s money in an attempt to save its own or failure to consider the impact of its
decision on its insured.

         More importantly, however, while requested jury charge “B” set forth the definition of bad
faith as generally found in BLACKS LAW DICTIONARY 176 (4th ed. 1968) and by the Kentucky
Court of Appeals in Harrod v. Meridian Mut. Ins. Co., 389 S.W. 2d 74, 76 (1965), as cited by the


        1
            Tennessee Farmers Mutual Insurance Company’s requested jury instruction “A”:
                   Mere negligence on the part of an insurance company in failing to settle a claim against its insured is
                   not sufficient to impose liability against the insurance company. Before an insurance company can
                   be held liable for failing to compromise or settle a claim, the refusal to settle within the policy limit
                   must be fraudulent or in bad faith.

        2
            Tennessee Farmers Mutual Insurance Company’s requested jury instruction “B”:
                   Bad faith embraces more than bad judgment or negligence and it imports a dishonest purpose, moral
                   obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will
                   partaking of the nature of fraud, and it embraces an actual intent to mislead or deceive another.

                                                            -8-
Kentucky Court in Carruba v. Transit Cas. Co., 443 F. 2d 260 (6th Cir. 1971), it did not accurately
state the law in Tennessee.

       No case in Tennessee has adopted the definition of bad faith provided in the Kentucky case
of Harrod v. Meridian Mut. Ins. Co. Tennessee courts have defined bad faith as breach of duty to
exercise reasonable diligence and caution. Southern Fire & Casualty Co. v. Norris, 35 Tenn. App.
657, 250 S.W. 2d 785 (Tenn. Ct. App. 1952). Moreover, the Kentucky Court of Appeals retreated
from this definition of bad faith in its subsequent decision in Manchester Ins. & Indemnity Co. v.
Grundy, 531 S.W. 2d 493 (1975). Kentucky adopted a definition similar to the one set forth by the
Tennessee Court of Appeals in Southern Fire & Casualty Co. v. Norris, as noted in Matt v. Liberty
Mutual Ins. Co., 798 F. Supp. 429, 433 (W.D. Ky.1991), as follows:

                For several years the law of Kentucky on the issue of bad faith
                tracked the Marcum, Harrod and American Surety decisions. Then in
                Manchester Ins. & Indem. Co. v. Grundy, Ky. 531 S.W. 2d 493
                (1976) the court revisited the issue of bad faith and in so doing
                overruled American Surety, Harrod, and Marum, in part. Further, the
                court outlined several factors to be considered in bad faith actions:

                1. probability of recovery;

                2. probability that recovery will exceed policy limits;

                3. negotiations with respect to settlement;

                4. offers to settle for less than policy limits; and

                5. whether the insured demanded that the insurer settle.

                In light of these five factors and opining that last minute settlement
                offers which preclude an insurer from adequately evaluating the offer
                receive less weight, the court formulated the following test for
                judging whether an insurer’s conduct rises to the level of bad faith:

                        Did the insurer’s failure to settle expose the insured to
                        an unreasonable risk of having a judgment rendered
                        against him in excess of the policy limits?

See also Motorists Mutual Ins. Co. v. Glass, 996 S.W. 2d 437 (Ky.1997).

       Had the trial court given requested jury instruction “B” as a part of its charge, the trial court
would have committed error since this is not the law in Tennessee (or in Kentucky).




                                                  -9-
        Tennessee Farmers Mutual Insurance Company’s third requested jury charge, identified as
    3
“C” in the majority opinion, was not necessary as it was adequately covered in the trial court’s jury
charge.

        Tennessee Farmers Mutual Insurance Company’s fourth requested jury charge, identified in
    4
“D” of the majority opinion, provides that Tennessee Farmers did not have to settle or pay the
uninsured motorist claims of Christopher Moore, unless or until they obtained a judgment against
John Doe. There was much discussion during the trial of the payment of the uninsured motorist
claims. Tennessee Farmers Mutual Insurance Company argued that it paid both Moore and Johnson
under the uninsured motorist coverage of their policy when it was not obligated to do so. The
plaintiff argued that the timing of the payment (actually the delay in payment) evidenced an
indifference to the interest of the insured. This evidence regarding payment of the uninsured
motorist claims cut both ways. The trial judge, however, properly admonished the jury that the
timing of the uninsured motorist payments was not to be considered bad faith as follows:

                    Whether or not Tennessee Farmers properly paid or improperly
                    delayed payment in Mr. Johnson’s uninsured motorist claim does not
                    mean they are guilty of bad faith in failing to pay the claim of Mr.
                    Moore on Mr. Johnson’s liability coverage.

       Therefore, the Tennessee Farmers Mutual Insurance Company’s requested instructions were
not necessary and the trial court’s refusal to give this charge was not in error.

        Finally, Tennessee Farmers Mutual Insurance Company takes issue with certain comments
made by the trial court in the presence of the jury. Specifically, judges are prohibited from
commenting upon evidence in a case pursuant to Tennessee Constitution Article VI, Section 9. Trial
judges, therefore, “must be very careful not to give the jury any impression as to his [or her] feelings
or to make any statement which might reflect upon the weight of credibility or evidence on which
might sway the jury.” Mercer v. Vanderbilt University, Inc., 134 S.W. 3d 121, 134 (Tenn. 2004),
citing State v. Suttles, 767 S.W. 2d 403, 407 (Tenn. 1989). However, not every comment on the
evidence is grounds for reversal. Kanbi v. Sousa, 26 S.W. 3d 495, 499 (Tenn. Ct. App. 2000). The
trial court’s comment must be reviewed in the overall context of the case to determine whether the
comment was prejudicial. State v. Caughron, 855 S.W. 2d 526, 536-37 (Tenn. 1993).



        3
            Tennessee Farmers Mutual Insurance Company’s requested jury instruction “C”:
                   Bad faith on the part of an insurer is a frivolous or unfounded refusal to pay the proceeds of the
                   insurance policy. Such conduct imports a dishonest purpose and means a breach of the duty of good
                   faith and fair dealing through some motive of self-interest or ill will. Mere negligence or bad
                   judgment is not bad faith.

        4
            Tennessee Farmers Mutual Insurance Company’s requested jury instruction “D”:
                   . . . [T]hat Tennessee Farmers did not have any duty to settle or pay the uninsured motorist claims of
                   either Christopher Moore or Robert Johnson unless or until they obtained a judgment against John
                   Doe.

                                                          -10-
        The first statement cited as error by Tennessee Farmers Mutual Insurance Company related
to the offset provision of the policy. Although the trial court did incorrectly say that “I hold that is
not what the policy provides”, this did not rise to the level of prejudice that is required for a finding
of a new trial. This comment was 1 line on 1 page of a transcript consisting of 799 pages. It did not
likely affect the outcome of the case.

         Tennessee Farmers Mutual Insurance Company also takes issue with statement made by the
trial judge to the effect that “everybody knew he [Buxton] was representing Tennessee Farmers.”
Overwhelming evidence was introduced which indicated that Buxton, although hired by Tennessee
Farmers Mutual Insurance Company, represented Johnson. In addition, the trial court cured any error
in its jury instruction when he said:

                Mr. Buxton was the attorney for Mr. Robert Johnson. Tennessee
                Farmers did not have the right to control the details of Mr. Buxton’s
                performance, the attending strategy or tactics he employed, or limit
                his professional discretion in regard to the representation. And I
                therefore charge you that Tennessee Farmers would not be liable for
                any negligence of Mr. Buxton as Mr. Johnson’s attorney. However,
                Mr. Buxton also had a duty to report to Tennessee Farmers as to the
                investigation, evaluation, and representations as to the liability claim
                against Mr. Johnson.

       Both of the comments made by the trial judge cited as error by Tennessee Farmers Mutual
Insurance Company was harmless within the context of the trial. Because the evidence was
overwhelming in favor of the plaintiff, neither is sufficient to show prejudice or to have affected the
outcome of the trial.

        For the reasons stated herein, I would affirm the judgment of the trial court.




                                                                SHARON G. LEE, JUDGE




                                                  -11-
