1) APPLICATION OF THE OFFSET PROVISION IN AN UNINSURED MOTORIST POLICY FOR A CLAIM ARISING OUT OF AN INJURY OCCURRING DURING THE COURSE AND SCOPE OF EMPLOYMENT.
2) DESIGNATION OF FINAL ORDERS PURSUANT TO RULE 54.02.
Beck Cooper v. Jason Towers
Tennessee Court of Appeals (Eastern Section) Opinion filed November 8, 2011
In this case, the Plaintiff had two (2) separate workers' compensation claims with the same employee arising out of two (2) separate incidents. The first involved a back injury which occurred when she lifted her briefcase out of the company car. The second involved an automobile accident that was the subject of the appeal in this case.
1. In regard to offsets, the uninsured motorist policy provided:
We will not pay for any element of "loss" if a person is entitled to receive payments for the same element of "loss" under any workers' compensation law, disability benefits or similar law.
The Plaintiff in this case entered into a settlement of the workers' compensation claims for the first accident referencing both accidents. However, the settlement award only provided for the first accident and set forth no benefits as it relates to the second accident.
The insurer in the tort suit filed a motion for partial summary judgment relying upon the offset provision in the uninsured motorist policy. The Court of Appeals affirms the trial court's granting of partial summary judgment in favor of the insurer, that the uninsured motorist offset provision applies and entitles the insurer to a credit as to the amount of compensation benefits "that would have been available to the Plaintiff but for her voluntary waiver of same." The Court of Appeals affirmed the trial court's granting of partial summary judgment as it related to any claim for any necessary medical expenses, past, present and future, any and all temporary or permanent loss of earning capacity, and any and all permanent impairment (note the Court also granted summary judgment as to loss of wages based upon the Plaintiff's interrogatory admission that she was not making any claim for lost wages).
The Court of Appeals dealt with the legal issue of whether the insurer could reduce its uninsured motorist obligation by the worker's compensation benefits available, but voluntarily waived by the Plaintiff from her injuries relating to an automobile accident. The Court of Appeals affirmed the granting of summary judgment in favor of the insurer, finding that the insurer could reduce its obligations even though the Plaintiff had received no such benefits.
2. Rule 54.02
This is a good case to read in regard to the importance of the proper language to have in an Order be a final Order where the Order adjudicates less than all of the claims or all of the parties. As you may know, the Court can enter an order dismissing a party and leaving parties remaining. However, in that situation, unless the Order contains Rule 54.02 language as to the finality of that party, the Order is not final and the party could be brought back into the litigation. Therefore, there is a practice of including 54.02 language. The Tennessee courts have cautioned that this language cannot be routinely added to an Order. In this case, the Court of Appeals set out importantly that if a party wishes to put down a final Order pursuant to Rule 54.02 as to less than all of the parties or less than all the issues, the Order must set forth the statutory language as provided in Rule 54.02 or the Order is simply not a final Order. The Court procedurally determined the issues in this appeal pursuant to its power under Rule 9 of the Tennessee Rules of Appellate Procedure pertaining to interlocutory appeals. However, the Court noted:
A word of caution to the bench and bar is in order. It would be a mistake to assume that we will continue to employ Rule 9 to assume jurisdiction (1) an appeal claimed by the appellant to be pursuant to T.R.C.P. 54.02, but one that fails to be properly certified is final and in full compliance with the language of the rule, or (2) an appeal, as in the present case, that is not authorized by Rule 54.02.
In short, the Court cautions that the Rule is "readily available to be read, and all of which must be followed."