                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               November 18, 2009 Session

   JAMES E. DYER, Individually, and as Administrator of the Estate of
 FAYE E. DYER, Deceased v. HILL SERVICES PLUMBING AND HVAC

              Direct Appeal from the Chancery Court for Shelby County
                   No. CH-05-2304     Walter L. Evans, Chancellor

                                          ________

                No. W2009-00687-COA-R3-CV - Filed January 7, 2010




D AVID R. F ARMER, J., Partial Dissent.


       I concur with the majority with one exception. The majority holds that by failing to
notify Mr. Dyer of his right to convert, Hill Services was the cause of any damages resulting
from the first policy not being converted. The majority goes on to say that “[t]he final
element of a negligence action is damages. In a case where the duty to notify of the right to
convert has been breached, damages equal the amount the insurance policy would have been
converted to.” The majority reverses the decision of the trial court finding that there was no
duty to notify Mr. Dyer of the right to convert, and remands for an evidentiary hearing on the
issue of damages.

       However, the majority further states that no evidence is found in the record on what
the converted coverage would be. After reviewing the record, I agree with the majority that
the Plaintiff, Mr. Dyer, rested his case before the trial court without proving damages.
Having failed to do so when he had the opportunity before the trial court, I would hold that
Mr. Dyer failed to prove his damages and would not allow him a second bite at the apple.




                                                  ____________________________________
                                                  DAVID R. FARMER, JUDGE
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