                                                FILED
                                                 July 31, 1998

                                              Cecil W. Crowson
                                             Appellate Court Clerk

ANGELA S. HOGAN,                )
                                )
      Plaintiff/Appellee,       )      Appeal No.
                                )      01-A-01-9801-CV-00023
v.                              )
                                )      Sumner Circuit
SONYA M. REESE,                 )      No. 15609-C
                                )
      Defendant/Appellant.      )
                                )


                  COURT OF APPEALS OF TENNESSEE


     APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

                       AT GALLATIN, TENNESSEE


            THE HONORABLE THOMAS GOODALL, JUDGE




JOE D. HARSH
Harsh, Parks & Harsh
123 Public Square
Gallatin, Tennessee 37066
      ATTORNEY FOR PLAINTIFF/APPELLEE




R. KREIS WHITE
Adair, Schuerman & White
4701 Trousdale Drive, Suite 211
Nashville, Tennessee 37220
      ATTORNEY FOR DEFENDANT/APPELLANT
                        REVERSED AND REMANDED




                                                     WILLIAM B. CAIN, JUDGE
                                OPINION
          In this case defendant appeals a jury verdict for personal injuries
resulting from an automobile accident in which the trial judge directed a verdict
for the plaintiff on the issue of liability. This appeal takes issue with two aspects
of the trial court's decision, to wit, damages and liability.


I.        With regard to liability:
          Plaintiff alleges in her complaint that her automobile was struck from
the rear by the automobile driven by defendant. She alleges specific acts of
negligence including statutory violations and seeks recovery for pain and
suffering together with loss of enjoyment of life.


          In answer defendant admits certain acts of negligence including failure
to keep a proper lookout ahead and failure to see that which was plain to be seen
and take proper action with respect thereto.


          Prior to trial the defendant was allowed to amend her answer to allege
comparative fault.


          On October 27, 1995 in the late afternoon plaintiff Angela S. Hogan
was alone in her automobile driving from Gallatin toward Hendersonville on
Highway 31A. Defendants Sonya M. Reese, accompanied by passenger Rocky
Branham, was proceeding in the same direction on Highway 31A to the rear of
Mrs. Hogan. As Mrs. Hogan approached a stop light she slowed or stopped her
car and was struck from the rear by Mrs. Reese. Very little property damage
occurred and Mrs. Hogan did not seek medical attention until two days following
the accident.


                                         -2-
          Only three witnesses, plaintiff Angela S. Hogan, defendant Sonya M.
Reese and passenger Rocky Branham, testified as to the facts of the accident. At
the conclusion of all of the evidence the trial court could find no basis for
comparative negligence and directed a verdict in favor of the plaintiff on the
issue of liability, thus sending the case to the jury on damages only. The jury
returned a verdict for the plaintiff as reflected by the final judgment as follows:
                 After deliberation, the jury returned and reported to
          the Court that based on the proof submitted and by a
          preponderance of the evidence that the Plaintiff, ANGELA
          S. HOGAN, sustained total damages in the sum of
          SEVENTEEN THOUSAND SEVEN HUNDRED FIFTY
          ($17,750.00) DOLLARS, as a result of the October 27, 1995
          accident. Said total damages were composed of economic
          damages in the amount of $4,395.16 and non-economic
          damages of $13,354.84. Each juror did, upon being polled
          by the Judge, acknowledge and confirm the verdict as
          reported by foreperson Jerry Anderton, was in fact the
          verdict agreed upon by each individual juror, and the jury as
          a whole.
                 Therefore, based on the verdict rendered and the
          findings made by the jury, it is therefore ORDERED,
          ADJUDGED AND DECREED
                 1. Plaintiff, ANGELA S. HOGAN, have and recover
          from the Defendant, SONYA M. REESE, the sum of
          SEVENTEEN THOUSAND SEVEN HUNDRED FIFTY
          ($17,750.00) DOLLARS.



          Defendant filed a timely motion for a new trial complaining of the
directed verdict on liability, the applicability of the statutory presumptions of
T.C.A. § 24-5-113(a)(3) and the alleged erroneous instruction by the court with
respect to medical expense presumptions.


          This motion was overruled and defendant appealed.


          Appellant states three issues on appeal to-wit:
                 1. Did the circuit court err in directing verdict in favor
          of the plaintiff as to liability?
                 2. Did the circuit court err by permitting introduction
          of medical expenses other than the charges of chiropractor
          Ettlinger with a presumption of both reasonableness and
          necessity?
                 3. Was the circuit court's instruction related to a

                                        -3-
          medical expense presumption (TPI Civil 14.12) erroneous?



          The action of the trial court in directing a verdict in favor of the
plaintiff as to liability presents a difficult issue on appeal under the necessary,
comparative fault analysis mandated by McIntyre v. Ballentine, 833 S.W.2d 52
(Tenn. 1992) and its progeny.


          While Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994) was actually
decided on the "duty" issue, the discussion therein of the McIntyre effect where
the negligence of both plaintiff and defendant is alleged provides a good starting
point.


          Said the court:
                  [4] The recitation of these standards of review does
          not, however, provide a satisfactory answer to the issue
          before us because McIntyre has radically changed the
          question to be asked by the trial court on a motion for
          directed verdict/JNOV which alleges negligence on the part
          of the plaintiff. The question now is not whether the plaintiff
          was guilty of any negligence that proximately caused the
          resulting injuries. Instead, the question is: assuming that
          both plaintiff and defendant have been found guilty of
          negligent conduct that proximately caused the injuries, was
          the fault attributable to plaintiff equal to or greater than the
          fault attributable to the defendant.

                  The trial court's determination as to whether
          reasonable minds could differ on this new question is made
          more difficult by the fact that it has not been provided with
          any guidance as to how to apportion fault. The formulation
          of workable, meaningful standards to guide trial courts in
          this area is no simple matter; this is evidenced by the marked
          divergence of opinion of courts and commentators on
          whether fault should be apportioned according to the nature
          of the parties' conduct, the closeness of the causal
          relationship between the conduct and the injuries, or
          combination of the two. Some commentators have taken an
          extreme position on this issue, arguing that no rational or
          objective basis for the apportionment of fault exists.

                We are unpersuaded by the contention that there is no
          meaningful way to provide guidance to trial courts and juries
          in apportioning fault, or by the alternative contention that it


                                        -4-
          is unwise to provide any such guidance. While we agree that
          it is impossible to formulate an exhaustive set of guidelines
          for apportioning fault that will adequately cover the manifold
          circumstances in which negligence actions may arise, we
          nevertheless believe that trial courts and juries must have
          some guidance, however imprecise and imperfect, in
          discharging their respective duties in apportioning fault.

Eaton v. McLain, 891 S.W.2d 587, 590-91 (Tenn. 1994). Footnotes omitted.



          This question addressed in Eaton involved the determination of the
McIntyre "fifty percent rule" in passing on a motion for a directed verdict made
by the defendant. If, as a matter of law, the trial court or the appellate court may
determine in a given case that the percentage of fault of the plaintiff is at least
50% of the total fault, then a directed verdict for the defendant is mandated.


          This issue was addressed by the Eastern Section of the Court of
Appeals in the recent case of LaRue v. 1817 Lake Incorporated, 966 S.W.2d
423 (Tenn. Ct. App. 1997) Perm. App. denied (Apr. 13, 1998) wherein the trial
court had directed a verdict in favor of "dram shop" defendants and then
addressed the "fifty percent rule" as to the plaintiff passenger and defendant
driver. The trial court held that under the proof the passenger LaRue was at least
50% at fault and thereupon directed a verdict in favor of the defendant driver.
The Court of Appeals reversed, holding:
                  As in Silcox, there is ample evidence here suggesting
          that LaRue's decision to get on the motorcycle was ill-
          advised and negligent. However, viewing all of the evidence
          in a light most favorable to plaintiffs, as we are required to
          do, we cannot say that reasonable minds could reach only the
          conclusion that LaRue was equally or more at fault than
          Brewer. We agree that the conclusion reached by the trial
          court that LaRue's fault was equal to or greater than Brewer's
          is a reasonable conclusion. We cannot say, however, that
          there is not another conclusion that could be reached by
          reasonable minds.

                Brewer was the operator of the motorcycle and
          admittedly was traveling too fast at the time the accident
          occurred. It is not unreasonable to conclude that the accident
          was caused by excessive speed rather than or in addition to
          Brewers state of intoxication. Brewer's blood alcohol
          content was roughly twice that of LaRue's. In the final

                                        -5-
          analysis, as the Silcox court noted, comparative fault is a
          question of fact within the jury's province, which should not
          lightly be invaded by the trial court. We do not mean to
          imply in any fashion that the trial court's action gave light
          consideration to the evidence or any other facet of the case.
          We are of the opinion that, under all the circumstances of
          this case, the question of the degree of fault between LaRue
          and Brewer should have been submitted to the jury.

LaRue v. 1817 Lake Incorporated, 966 S.W.2d at 427.


          In the case at bar the situation is reversed; here the trial court has
directed a verdict for the plaintiff rather than for the defendant. Under a
comparative fault analysis this means that the trial judge has determined as a
matter of law that the defendant is 100% at fault and plaintiff is zero percent at
fault. Thus the controlling question for our determination is whether or not,
accepting the evidence in the light most favorable to the non-movant defendant,
there is material evidence from which a trier of fact could find any percentage of
fault attributable to the plaintiff. If so, the comparison becomes a question of
fact for the jury and not a question of law for the court.


          As in LaRue there is ample and indeed overwhelming evidence of the
fault of the defendant Reese. A verdict for the plaintiff, however, cannot be
directed so as to cast 100% of the fault upon the defendant if reasonable minds
can differ as to whether or not the plaintiff was in any way at fault. At trial the
defendant Reese testified:
          A.     I was in traffic and I was going towards
          Hendersonville from Gallatin. The light had changed. I was
          going down and I saw this other car slowing down. Ms.
          Hogan slammed on her brakes. I tried to stop but I didn't. I
          barely hit her and the car behind me did have to take the
          shoulder of the road from hitting me.


          Rocky Branham, the passenger in the Reese car, testified:

          Q.     Tell these folks what happened.
          A.     Sonya was going down the road. Ms. Hogan
                 over here put on her brakes and we bumped
                 into her.
                                       ...
          Q.     Do you remember seeing Sonya's car (sic) anytime

                                        -6-
         prior to right before you ran into it?
         A.      All the time.
         Q.      Do you remember what any of the other cars looked
         like around the scene or the accident scene?
         A.      I looked at the cars if that's what you're asking.
         Q.      I'm asking do you remember what any of them looked
         like at the scene of the accident?
         A.      Yes, sir.
         Q.      Aside from Ms. Hogan's car and the car that you were
         driving, do you remember any of the other vehicles or
         anything?
         A.      No, sir.
         Q.      And did you say the light turn red?
         A.      It turned red after she stopped.
         Q.      The light turned red after she stopped?
         A.      She stopped and then the light turned.
         Q.      You're saying Ms. Hogan stopped first and then the
         light turned red?
         A.      Yes, sir, as far as I can remember.
         Q.      Do you think you could be wrong on that?
         A.      I believe that's correct.
         Q.      You believe or are you absolutely sure?
         A.      No, I'm not absolutely sure.
                                         ...
         Q.      Well, if you're not absolutely certain, how would you
         know?
         A.      There were no cars in front of Ms. Hogan stopped.
         Q.      There were no cars in front of her?
         A.      No, sir.
         Q.      Were there other cars stopped in front of the light, or
         do you know?
         A.      No, sir. I couldn't be certain. I can't remember it's
         been so long ago.



          In her discovery deposition testimony Ms. Hogan testified that she had
stopped about fifty feet behind the car in front of her.


          In analyzing a similar situation under pre-McIntyre law Judge McAims
for the Court of Appeals observed:
                 [1,2] It is apparent that the evidence is in conflict on
          points material to a finding of negligence in the operation of
          the bus. Caldwell says the bus did not come to a sudden stop
          and that there was no need to bring it to a sudden stop
          because the vehicle immediately in front of him was 150 feet
          away. The proof for plaintiffs, on the contrary, is clearly
          sufficient to support a jury finding that the bus did come to


                                       -7-
          a sudden stop without warning. Considering the entire
          evidence in the light most favorable to the plaintiffs as we
          are required to do, we thus have a state of facts from which
          the jury could find that although Caldwell had 150 feet
          within which to stop the bus and was therefore not faced with
          an emergency, as defendant insists, he brought it to an abrupt
          stop knowing that he was being followed by other traffic.

Sellers, et al. v. American Industrial Transit, Inc., 35 Tenn. App. 46, 49-50, 242
S.W.2d 335, 336 (1951).



          In Sellers as in Anderson v. Carter, 22 Tenn. App. 118, S.W.2d 892
(1937) reasonable minds could differ as to whether or not plaintiff was guilty of
some degree of proximate negligence. If such precluded a directed verdict pre-
McIntyre it is today sufficient to force a comparison which is always a question
of fact and not a question of law.


          "Although circumstances could arise under which a directed verdict
would be appropriate in a comparative negligence case, they are rare." 57B
Am.Jur. 2d Negligence § 1282 (1989).


          As has been said by this court:
          In a jury case, the issues of negligence and proximate cause
          are generally for the jury. Such issues may be pre-emped by
          the Trial Judge only where the evidence and reasonable
          inferences therefrom are so free of conflict that all reasonable
          minds would agree with the decision of the trial judge.
          Williams v. Brown, Tenn. 1993, 860 S.W.2d 854, 857.

Husted v. Echols, 919 S.W.2d 43, 45 (Tenn. Ct. App. 1995). See also Prince v.
St. Thomas Hospital, 945 S.W.2d 731, 735 (Tenn. App. 1996).



          Considering the evidence in this case in the light most favorable to the
defendant there is sufficient evidence for reasonable minds to find some
percentage of fault attributable to the plaintiff. Thus, a directed verdict for the
plaintiff assessing 100% fault to the defendant as a matter of law is error and
must be reversed.


II.       With regard to Damages:

                                        -8-
         Appellant next contends that T.C.A. § 24-5-113(a) is not applicable in
this case so as to provide prima facie evidence of the necessity and
reasonableness of certain medical expenses offered in evidence by plaintiff.
Appellant's complaint alleges in pertinent part:
              (c) Necessary and reasonable medical expenses; copies
         of which are attached hereto, per T.C.A. Section 24-5-113:
              Sumner Regional Medical Center -------- $
              990.00
              Suburban Rehabilitation -------------------              1,207.00
              Sumner Radiology --------------------------       177.00
              Big B Drugs ---------------------------------      53.16
              Dr. Kenneth Case ---------------------------       35.00
                                                            $ 2,462.16
              Additionally, Plaintiff has incurred $1,683.00 for
         treatment from Dr. Frank C. Etlinger;
              (d) Pain and discomfort to her neck, back, and spine
         area; and
              (e) All other injuries and damages allowed by law.

Relative to the allegations of medical expenses, defendant answers:

              7. Defendants deny that T.C.A. § 24-5-113(a)(3)
         applies or that T.C.A. § 24-5-113(b)(1) affords any
         presumption of the necessity of the medical care. Defendants
         are without sufficient knowledge or information to form a
         belief as to the truth of the remaining allegations of
         paragraph 7 and therefore demands strict proof.



         Plaintiff filed a pre-trial motion in limine asserting in part:
               Plaintiff would show that there is a rebuttable
         presumption that all the medi[c]al bills incurred on her behalf
         are both reasonable and necessary pursuant to T.C.A. § 24-5-
         113(B)(1) and (2) and is therefore entitled to said rebuttable
         presumption.
               An itemization of medical expenses incurred as of the
         date of filing is contained in Plaintiff's Complaint.
         Furthermore, on October 11, 1996, Plaintiff served upon
         counsel for Defendant, her answers to Interrogatories to
         which in relevant part giving a full and complete itemization
         via copies of all medical bills and expenses incurred by
         Plaintiff as a result of the collision which is the subject of
         this cause.
               To date, Defendant has not served upon the Plaintiff any
         specific itemization of any bills produced in Plaintiff's
         Interrogatories to which Defendant believes not to be
         reasonable and necessary.


                                       -9-
      In the alternative, Plaintiff would show that she is
entitled to prima facie presumption provided in T.C.A. § 24-
5-113(a)(1).



Defendant thereupon filed a pre-trial motion in limine asserting:
     3. Under Porter v. Green, 745 S.W.2d 874 (Tenn.
App. 1987), the defendants seek a ruling in limine precluding
any reference to causation of the plaintiff's injuries absent
competent medical proof within a reasonable degree of
medical certainty.
     4. The defendants, through counsel, moves the Court
for an Order striking or excluding any presumption of the
reasonableness or necessity of the plaintiff's medical
expenses absent competent proof of the necessity of such
care. In

support thereof, the defendant calls the Court's attention to
the unequivocal language of TCA 24-5-113(a)(3), the statute
that gives rise to a presumption related to medical expenses
in certain (and here, inapplicable) situations:

     24-5-113. Medical, hospital or doctor bills -
     Prima facie evidence of necessity and
     reasonableness.

     (a)(1) Proof in any civil action that medical,
     hospital or doctor bills were paid or incurred
     because of any illness, disease, or injury may be
     itemized in the complaint or civil warrant with a
     copy of bills paid or incurred attached as an
     exhibit to the complaint or civil warrant. The bills
     itemized and attached as an exhibit shall be prima
     facie evidence that the bills so paid or incurred
     were necessary and reasonable.
     ...
     (3) The prima facie presumption shall apply to the
     medical, hospital and doctor bills itemized with
     copies of bills attached to the complaint or civil
     warrant; provided, that the total amount of such
     bills does not exceed the sum of two thousand five
     hundred dollars ($2,500).

     In this case, the plaintiff seeks to circumvent the plain
meaning and pervert the purpose of the cited statute by
incurring bills in excess of the $2,500.00 cap and trying to
"hand-pick" bills in order to gain an improper presumptive
advantage where none is due.



                            -10-
         At common law reasonableness and necessity of medical expenses
allegedly caused by the defendant are elements constituting a part of the burden
of proof resting upon the plaintiff. See 22 Am.Jur.2d "Damages", § 197 (1988).
To relieve this burden on small claims, the legislature by chapter 734 of the
Public Acts of 1978 created a prima facie presumption of necessity and
reasonableness under certain conditions.


         This act of the General Assembly is presently codified as T.C.A. § 24-
5-113(a)(1)(2)and (3). The next change in the present codification as to the 1978
act was chapter 481 of the Public Acts of 1981 raising the original $500
maximum amount to the present maximum amount of $2,500. This portion of
the act, thus amended, provides as follows:
               24-5-113. Medical, hospital or doctor bills -- prima
         facie evidence of necessity and reasonableness. -- (a)(1)
         Proof in any civil action that medical, hospital or doctor bills
         were paid or incurred because of any illness, disease, or
         injury may be itemized in the complaint or civil warrant with
         a copy of bills paid or incurred attached as an exhibit to the
         complaint or civil warrant. the bills itemized and attached as
         an exhibit shall be prima facie evidence that the bills so paid
         or incurred were necessary and reasonable.
               (2) This section shall apply only in personal injury
         actions brought in any court by injured parties against the
         persons responsible for causing such injuries.
               (3) This prima facie presumption shall apply to the
         medical, hospital and doctor bills itemized with copies of
         bills attached to the complaint or civil warrant; provided, that
         the total amount of such bills does not exceed the sum of two
         thousand five hundred dollars ($2,500).


         In order to qualify medical expenses under this statute it is necessary
that such expenses be itemized and copies of bills therefor which have been paid
or incurred be attached as an exhibit to the complaint. Such procedure was not
followed in the case at bar.


         By chapter 235 of the Public Acts of 1989 the General Assembly added
an additional procedure by which a plaintiff may establish a rebuttable
presumption that medical, hospital and doctor bills are reasonable. This 1989 act


                                      -11-
is now codified as T.C.A. 24-5-113(b)(1) and (2).


         This codification of the Act of 1989 is not limited as to the amount of
such medical bills but provides only a rebuttable presumption that such medical
bills are reasonable and does not address at all the question of whether or not
such medical bills were "necessary".


         The codified 1989 act reads as follows:
              (b)(1) In addition to the procedure described in
         subsection (a), in any civil action for personal injury brought
         by an injured party against the person or persons alleged to
         be responsible for causing the injury, if an itemization of or
         copies of the medical, hospital or doctor bills which were
         paid or incurred because of such personal injury are served
         upon the other parties at least ninety (90) days prior to the
         date set for trial, there shall be a rebuttable presumption that
         such medical, hospital or doctor bills are reasonable.
              (2) Any party desiring to offer evidence at trial to rebut
         the presumption shall serve upon the other parties, at least
         forty-five (45) days prior to the date set for trial, a statement
         of that party's intention to rebut the presumption. Such
         statement shall specify which bill or bills the party believes
         to be unreasonable. [Acts 1978, ch. 734, § 1; T.C.A., § 24-
         517; Acts 1981, ch. 481, § 1; 1989, ch. 235, § 1.]



         In the case at bar plaintiff attached medical, hospital and doctor bills
in response to request for production of documents in a manner sufficient to
invoke the rebuttable presumption that such medical, hospital and doctor bills are
reasonable.


         "The fact a given amount is proven as undisputed medical expenses
does not prove those expenses were necessary." Karas v. Thorne, 531 S.W.2d
315, 317 (Tenn. App. 1975).


          In the present case the court charged the jury as to medical expenses:
               The next element of damages that Ms. Hogan may
          recover is for reasonable and necessary expenses for medical
          care, services, supplies actually given in the treatment of a
          party as shown by the evidence. Now, in this case some
          medical bills have been introduced in evidence, and because

                                       -12-
          these bills do not exceed a certain sum established by the
          law, you may presume these expenses were reasonable and
          necessary.



          As the proof in the case did not establish prima facie evidence of
necessity and reasonableness under T.C.A. 24-5-113(a)(1)(2) and (3) because of
the failure of the plaintiff to comply with the requirements of T.C.A. 24-5-
113(a)(1) no evidence of necessity and reasonableness appears in the record.


          Conceding that the response to production of document requests
complies with T.C.A. 24-5-113(b)(1) and (2) a rebuttable presumption of
reasonableness under T.C.A. 24-5-113(b)(1) is established but no prima facie
evidence of necessity exists.


          The charge of the court to the jury that " . . . you may presume these
expenses were reasonable and necessary," is not supported by evidence.


          No reason is apparent as to why the General Assembly chose to limit
ch. 235 of the Acts of 1989 to "reasonableness" and not to expand it to include
"necessity" but the statute is not ambiguous and must be held to mean what it
says.


          The judgment of the trial court is reversed and the cause is remanded
for a new trial on all issues.


          Costs of this cause are assessed against the appellee.




                                              _____________________________
                                              WILLIAM B. CAIN, JUDGE




CONCUR:

                                      -13-
__________________________________
HENRY F. TODD, PRESIDING JUDGE


__________________________________
WILLIAM C. KOCH, JR., JUDGE




                             -14-
