                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                      September 7, 2001 Session

                       JOHNETTA PATRICE NELSON, ET AL. v.
                      INNOVATIVE RECOVERY SERVICES, INC.

                       Appeal from the Chancery Court for Davidson County
                         No. 98-2690-III  Ellen Hobbs Lyle, Chancellor



                    No. M2000-03109-COA-R3-CV - Filed November 21, 2001


This is a declaratory judgment action by Ruby Nelson against Innovative Recovery Services, Inc.
(“IRSI”), subrogation recovery agent for Tennessee Coordinated Care Network, d/b/a Access
..MedPLUS (“TCCN”), a health maintenance organization under TennCare. TCCN paid $6,266.75
in medical expenses for Ruby Nelson and, under TennCare statutes, had a subrogation interest in this
amount as to any third party recovery by Ms. Nelson. The Complaint asserts that TCCN is liable to
attorneys for Ruby Nelson for attorney’s fees in the amount of one-third of the subrogation interest.
The Chancellor held TCCN not liable for attorney’s fees to the attorneys representing Ruby Nelson,
and we affirm the judgment of the Chancellor.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J. and
FRANK G. CLEMENT, JR., SP . J., joined.

Robert L. Whitaker, Nashville, Tennessee, for the appellants, Johnetta Patrice Nelson and Ruby
Nelson.

Rhonda M. Whitted, Nashville, Tennessee, for the appellee, Innovative Recovery Services, Inc.

                                                  OPINION

        On November 23, 1996, Ruby Nelson was injured in an automobile collision with a vehicle
driven by Scott M. Hann.1 TCCN paid a total of $6,266.75 in medical expenses for Ms. Nelson as
a result of the collision. Under TennCare statutes, TCCN was entitled to subrogation in claims
against third parties for its payments of medical expenses.



        1
                   Passengers Johnetta and William Nelson also had claims against Hann, but only the claim of Ruby
Nelson is invo lved in this app eal.
        Ms. Nelson employed the Law Office of Bart Durham to represent her in her claim against
Scott M. Hann under a contingent fee agreement, which provided for an attorney’s fee of one-third
of the amount of any recovery.

         IRSI had been, since August 25, 1997, designated by TCCN as its agent for subrogation
recovery services, and the Law Office of Bart Durham was so advised by letter of August 28, 1997.
On February 9, 1998, without notifying TCCN or IRSI, Ruby Nelson and her attorneys, the Law
Office of Bart Durham, entered into a voluntary, full and final settlement with Scott M. Hann in the
amount of $25,000.00. On February 11, 1998, counsel for Ruby Nelson informed IRSI for the first
time, by telephone, that Ms. Nelson had been injured in an automobile collision and requested the
amount of the State’s TennCare subrogation interest. IRSI informed the Law Office of Bart Durham
that they were not authorized to represent TennCare’s subrogation interest in such third-party
litigation since all such subrogation matters were to be handled by IRSI. The Law Office of Bart
Durham then deducted its attorney’s fees (in the amount of one-third of the total $25,000.00 recovery
realized in the settlement with Hann), deposited TCCN’s $6,266.75 of the settlement proceeds in a
trust account, disbursed the remainder of the recovery to Ruby Nelson and filed this suit for
declaratory judgment as to whether or not Ms. Nelson was entitled to recover one-third of the
$6,266.75 held in trust as reimbursement for attorney’s fees she paid to the Law Office of Bart
Durham for recovery of this money belonging to TCCN.

       In granting summary judgment to IRSI, the trial court held:

       1.      There are genuine issues of material fact whether Ruby Nelson was made
       whole by the settlement with the third party tort feasor.
       2.      However, because the Defendant instructed the Plaintiffs attorney not to
       represent the Defendant’s subrogation lien, and gave adequate notice that there was
       no agreement for representation by the Plaintiff’s attorney and that no express or
       implied contract existed between the Defendant and the Plaintiff’s attorney, the
       subrogation interest shall not be reduced by attorney fees or costs.
       3.      Further, in light of the recent amendment to T.C.A. 71-5-117, and because the
       action was settled between the Plaintiff and the third party tort feasor without
       notification or consent of the Defendant, the subrogation interest is not subject to the
       make whole doctrine.

       Ruby Nelson appealed asserting the issues to be:

       1.      Does the “made whole” doctrine apply to a TennCare subrogation
               claim arising prior to the Tennessee Supreme Court’s opinion in
               Blankenship v. Estate of Bain?
       2.      If the “made whole” doctrine does not apply to a TennCare
               subrogation claim arising prior to the Supreme Court’s opinion in
               Blankenship v. Estate of Bain, does TCA §71-5-117 apply?



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       Appellee, IRSI, raises additional issues by questions:

       1.     Under state TennCare statutes, does the equitable “make whole”
              doctrine apply to the State’s subrogation interest in third party
              recoveries in personal injury actions prior to Blankenship v. Estate of
              Bain when the State does not consent to or participate in the
              settlement between the plaintiff and the tortfeasor?
       2.     Does the May 24, 2000 amendment to the TennCare statute set forth
              in Tenn. Code Ann. Sec. 71-5-117 provide that a personal injury
              plaintiff’s attorney fees and costs are to be deducted from the State’s
              subrogation interest when the record establishes that the State elected
              to represent its own interest and expressly rejected representation by
              plaintiff’s attorney in the matter?

THE “MAKE WHOLE” DOCTRINE

       The “make whole” doctrine in Tennessee is progressively developed by Wimberly v.
American Casualty Company of Redding, Pennsylvania, 584 S.W.2d 200 (Tenn. 1979); Eastwood
v. Glenn Falls Ins. Co., 646 S.W.2d 156 (Tenn. 1983); York v. Sevier County Ambulance Authority,
8 S.W.3d 616 (Tenn. 1999); and Blankenship v. Estate of Bain, 5 S.W.2d 647 (Tenn. 1999).

      In discussing the “made whole” doctrine adopted in Wimberly, the Supreme Court held in
Blankenship:

               A right of subrogation may arise by contract (“conventional subrogation”),
       by application of equitable principles of law (“legal subrogation”), or by application
       of a statute (“statutory subrogation”). It is based on two fundamental premises: 1)
       that an insured should not be permitted recovery twice for the same loss, which
       would be the potential result if the insured recovers from both its insurer and a
       tortfeasor; and 2) that the tortfeasor should compensate the insurer for payments the
       insurer made to the insured. York v. Sevier County Ambulance Auth., 1999 WL
       1051166 (Tenn. 1999).

               The Blankenships, relying on our decision in Wimberly, have maintained
       throughout these proceedings that an insurer must receive full compensation for his
       or her loss, i.e., be “made whole,” before an insured is entitled to assert a claim for
       subrogation. In Wimberly, the insured suffered property damage of $44,619 due to
       a tortfeasor’s misconduct. The insured recovered $25,000 from the tortfeasor’s
       insurance policy and $15,000 under its own insurance policy. The insurance
       companies enforced contractual subrogation rights and received pro rata shares from
       the $25,000 the insured had received from the tortfeasor’s policy.




                                                -3-
              We held that the insurance companies were not entitled to subrogation
       because the insured had not been “made whole” for his loss. Wimberly, 584 S.W.2d
       at 202. Our holding was guided by “general principles of equity:”

               The doctrine of subrogation in insurance does not arise from, nor is
               it dependent upon, statute or custom or any of the terms of the
               contract; it has its origin in general principles of equity and in the
               nature of the insurance contract as one of indemnity. The right of
               subrogation rests not upon a contract, but upon the principles of
               natural justice.

       Id. at 203 (quoting Castleman, 432 S.W.2d at 675). Applying these principles, we
       determined that there is no equitable basis for allowing subrogation where an insured
       has not been made whole because there simply is no risk that the insured may recover
       twice for the same loss. Moreover, we concluded that a potential loss incurred by the
       insurer who is not reimbursed by way of subrogation is a risk the insurer has been
       paid to assume. Id. at 203.

Blankenship, 5 S.W.3d at 650-51.

        If the Wimberly-Eastwood-York-Blankenship “made whole” doctrine were otherwise
applicable in this case, it would face a fatal flaw in that the record before this Court does not
establish whether or not Ruby Nelson was “made whole”.

         In Wimberly, it was undisputed that the total recovery from the tortfeasor and the insured’s
fire insurance policies was less than the total casualty loss. Thus, the proof conclusively established
that the insured had not been “made whole,” and the insurer’s subrogation interest could not be
enforced.

        In York, an agreed settlement of $130,000 to each of two plaintiffs was made, with Blue
Cross asserting a $19,149.97 medical payment subrogation interest relative to one of the settling
plaintiffs, Brian York. The supreme court observed in footnote: “The trial court specifically found
that Brian York’s damages from the injuries sustained in the accident exceeded the $130,000
settlement and judgment.” York, 8 S.W.3d at 618 n.2. Brian York, thus not having been “made
whole” in his recovery, was not subject to the Blue Cross subrogation interest.

        Likewise, in Blankenship, the supreme court observed: “Bain had liability insurance coverage
in the amount of $125,000, but his estate was otherwise insolvent. Although the suit was settled for
the limit of Bain’s policy, the trial court found that the Blankenships would have been entitled to
recover damages well in excess of $125,000.” Blankenship, 5 S.W.3d at 649. Thus, the $20,713.83
medical expense payment subrogation interest of Blue Cross Blue Shield was not recoverable
because the Blankenships had not been “made whole”.



                                                 -4-
        In the underlying tort case between Ruby Nelson and Scott Hann, no finding of fact is made
as to whether or not Ruby Nelson is “made whole” by the $25,000 settlement. Indeed, in this
declaratory judgment act, the Chancellor held, “there are genuine issues of material fact whether
Ruby Nelson was made whole by the settlement with the third party tortfeasor.” Whatever may be
the rule elsewhere, persuasive authority in Tennessee establishes that the burden of proof rests upon
the insured to prove that she has not been made whole. In Tennessee Farmers Mutual Insurance Co.
v. Farmer, No. 03A01-9610-CH-00327, 1998 WL 695637 (Tenn. Ct. App. Aug. 20, 1998), it is held:

                The Chancellor held that the insurer had the burden of proof to establish that
        its insured had been made whole, in order to recover its subrogation claim, and that
        it had not sustained that burden. We respectfully disagree. In none of the cases
        discussing the “full recovery” doctrine it is suggested that the insurer has the burden
        of proof. The policy provisions, together with the contractual agreements executed
        upon advancement of medical expenses, establish a prima facie case. To defeat the
        right of subrogation, the insured must then affirmatively show [if the doctrine is
        applicable] that she was not made whole.

Id. at *3; See Tenn. S.Ct. R. 4.

        The record before the Chancellor is replete with assertions by Ms. Nelson that the $25,000
settlement represented the policy limits of Scott Hann and that he was otherwise insolvent. No
proof, however, exists to support these assertions. In addition, all that is shown by the record as to
Ms. Nelson’s loss are lost wages in an approximate amount of $3,040.00 and the payments by TCCN
totaling $6,266.75, paying all medical expenses.2

         Prior to the February 9, 1998 settlement between Ruby Nelson and Scott Hann, negotiated
by the Bart Durham Law Offices, TCCN was not even aware that an automobile accident had
occurred triggering a potential subrogation claim. It had simply paid the medical bills of $6,266.75.
TCCN was not given the opportunity of investigating the solvency of Scott Hann or, indeed, the
solvency of the owner of the car driven by Scott Hann, one Kevin P. Bursk, who was dismissed from
liability as a part of the settlement. Generally, if an insurer claiming subrogation did not participate
in the settlement negotiations between the insured and the third party tortfeasor and waived no rights,
its subrogation claim must be honored. Aetna Cas. & Sur. Co. v. Tennessee Farmers Mut. Ins. Co.,
867 S.W.2d 321, 323 (Tenn. Ct. App. 1993). The subrogation interest, however, can be defeated by
the “made whole” doctrine provided that the insurer and the insured have agreed that the insured was
not made whole by the tort recovery or the underlying facts are clear that the recovery did not make
the insured whole. Tennessee Farmers Mut. Ins. Co., 1998 WL 695637. Obviously, no agreement
exists between Ms. Nelson and TCCN that she was not made whole, and the evidence before the
Court does not affirmatively show that she was not made whole.



        2
                  In the interpleader complaint medical expenses of $28,500 are asserted. The record does not show
that she paid any medical expenses as only the $6,226.75 paid by TCCN is supported by the evidence.

                                                       -5-
       In Wimberly, the Tennessee Supreme Court adopted the rule laid down in Garrity v. Rural
Mutual Insurance Co., 253 N.W.2d 512 (Wis. 1977). While Garrity represented the plurality
approach among jurisdictions to the “made whole” doctrine, it spawned an immediate dilemma in
Wisconsin evidenced by Rimes v. State Farm Mutual Automobile Insurance Co., 316 N.W.2d 348
(Wis. 1982).

        Rimes and his wife were injured in an automobile accident involving several vehicles. One
defendant was insured for $300,000, and a second defendant was insured for $50,000. Rimes was
insured by State Farm. Medical expenses in the total amount of $9,649.90 were supplied by State
Farm with subrogation rights as to the third parties. An agreed settlement with the tortfeasors
resulted in a $125,000 payment to Mr. and Mrs. Rimes. State Farm asserted its $9,649.90
subrogation interest, and Rimes defended on the basis that the $125,000 settlement had not made
them whole.

        Having no ready answer to this dilemma, the trial court conducted a two day, non-jury trial
as to the amount of damages suffered by the Rimes. The court held that the Rimes had suffered
$300,433.54 in damages and denied the State Farm subrogation interest on the basis that the Rimes
had not been “made whole” under the Garrity doctrine. A deeply divided Wisconsin supreme court
affirmed the judgment. The majority accepted, as sound law, a bifurcated procedure in an accident
case where liability and degrees of liability were disputed.

        The plaintiffs, facing the possibility of a successful contributory negligence defense, accepted
the $125,000 settlement. Then, because of their dispute over the State Farm subrogation interest,
they were allowed to try their total damages non-jury, shielded from all liability perils. The trial
judge found their damages to be over $300,000, and since the $125,000 settlement was less than the
amount of their damages, the State Farm subrogation interest was foreclosed. The majority of the
Rimes’ court reasoned:

                State Farm also argues that, had the case gone to a verdict before the jury and
        had the total damages returned been $125,000, which sum included the $9,649.90 for
        medical expenses incurred in the first year after the accident, State Farm would
        clearly have been entitled to recover the latter amount as its claim in subrogation.
        While that is undoubtedly true, that fact is irrelevant, because, had such been the
        result of the trial, we would be obliged to conclude that the damages found by the
        jury made the plaintiff whole. Rimes, unless he paid over the amount of State Farm’s
        claim, would have reaped a double recovery. The medical payments were made long
        before trial; and were Rimes to keep all the proceeds of the judgment plus the
        medical payments, he would have been made whole plus the medical payments
        previously received. This he may not do under the equitable principles of
        subrogation. The verdict, under the facts hypothesized by State Farm, would have
        advised the trial court that the sum of $125,000 made the plaintiff whole. The parties
        here, however, by their stipulation determined to forego a jury verdict as the test of
        wholeness. It is clear then that a payment of $125,000, unless that sum had been


                                                  -6-
       arrived at by a jury whose intent was to make the plaintiff whole, was irrelevant.
       Under the facts of this case, the payment of $125,000 was the price that the defendant
       tortfeasors were willing to pay to avoid the risk of greater exposure; and it was the
       sum that Rimes was willing to accept. It has nothing to do with the determination of
       whether Rimes was made whole.
Rimes, 316 N.W.2d at 354-55.

        Justices Coffey and Steinmetz, in dissent, decried the results of this mini-trial as barring a
subrogation interest in all settlements where the subrogation interest was not contemplated by the
parties to the settlement, even in cases where questionable liability impelled the subrogor plaintiff
to accept discretion as the better part of valor. Said Judge Steinmetz:

                A spector arises from the court’s ruling that the insured must be made whole
        before a subrogor has any right of recovery. The issue becomes when is the insured
        made whole? Is it when the jury makes an award? I would assume so. The majority
        implies that never in a settlement is a person made whole since it is recognized purely
        as a compromise and is not the equivalent of being made whole. Therefore, all
        settlements in the future must determine within them an admission of wholeness or
        be subject to additional mini-trials.

Id. at 362.

       In the case at bar, TCCN never had the chance to negotiate with the insured relative to its
subrogation claim because the claim in its entirety was settled by Ms. Nelson before TCCN ever
knew that a claim existed.

       The record in this case discloses only the $25,000 settlement and is devoid of any proof, or
any finding of fact, by the trial court accepting the settlement as to whether or not Ms. Nelson was
“made whole” thereby. This burden of proof rests upon the plaintiff. The requirements of the “made
whole” doctrine of Wimberly, York and Blankenship have not been established, and Ms. Nelson’s
appeal must fail. See Tennessee Farmers Mut. Ins. Co., 1998 WL 695637.

       Since the “made whole” Blankenship rule is inapplicable under the facts of this case, it stands
in exactly the same position as Green v. Innovative Recovery Services, Inc., 42 S.W.3d 917 (Tenn.
Ct. App. 2000).

        It has long been settled by Travelers Insurance Co. v. Williams, 541 S.W.2d 587 (Tenn.
1976), that an attorney representing a plaintiff, whose own insurance company has a subrogation
interest against third parties, is not entitled to an attorney’s fee from the subrogation interest unless
the insurance company has expressly or impliedly employed him to pursue the subrogation interest.
See also Boston, Bates & Holt v. Tennessee Farmers Mut. Ins. Co., 857 S.W.2d 32 (Tenn. 1993).
The record in the case at bar negates any such express or implied agreement, and, in fact, like the
situation in Green, Plaintiff’s attorney “had been expressly informed that the insurer did not desire


                                                  -7-
his services, and that it was prepared to protect its own subrogation interest. Under the
circumstances, there was no contractual relationship between [Plaintiff’s attorney] and TennCare that
would entitle him to collect the attorney’s fees he requests.” Green, 42 S.W.3d at 920.

       In view of our holding as to the “made whole” doctrine, it is not necessary to consider the
impact, or the possible retroactivity, of Chapter 807 of the 2000 Public Acts of the State of
Tennessee, effective May 24, 2000, whereby Tennessee Code Annotated section 71-5-117 was
amended in a manner that expanded the protection of TennCare subrogation interest, apparently in
response to Blankenship, which had been decided by the supreme court on November 29, 1999.

        The judgment of the Chancellor is in all respects affirmed, and the case is remanded for such
further proceedings as may be necessary.

       Costs of this cause are assessed against Appellant, for which execution may issue.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




                                                -8-
