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IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

FILED
ANGIE BROOKS, Plaintiff/Appellant, VS. KIMBERLY J. QUAM DAVIS and GAYLE SCHAAL, Defendants/Appellees. AND ERICA BROOKS, a minor b/n/f ANGIE BROOKS, mother and natural guardian, Plaintiff/Appellant, VS. KIMBERLY J. QUAM DAVIS and AMY SCHAAL, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
March 8, 1996 Cecil W. Crowson Appellate Court Clerk

Montgomery Circuit

Appeal No. 01-A-01-9509-CV-00402

Montgomery Circuit

CONCURRING OPINION
Two persons injured in a one-car accident sued the driver of the car in which they were riding. After obtaining an essentially worthless judgment against the unknown driver of another car, the passengers perfected this appeal to take issue with the trial court's decision to permit their driver to rely on a "phantom automobile" defense even though she had not included this defense in her answer. The majority has determined that the trial court properly permitted the driver to assert this defense and to amend her pleadings to conform to the proof. While I concur with the majority's decision under the circumstances of this case, I have

prepared this separate opinion to avoid leaving a mistaken impression that the driver's answer complied with Tenn. R. Civ. P. 8.03. It did not; however, the error does not undermine the jury's verdict in this case.

I.

Angie Brooks became friends with Kimberly Quam (now Davis) and Amy Schaal when she and her husband moved to the Clarksville area in 1989. On the evening of February 2, 1991, Ms. Schaal, accompanied by Ms. Davis, drove to Ms. Brooks' house and invited Ms. Brooks to drive with Ms. Schaal to work and then to accompany Ms. Davis to a local shopping mall. Ms. Brooks accepted the invitation, and she and her two small children joined her two friends in Ms. Schaal's car.

Ms. Davis took over the driving responsibilities after they dropped off Ms. Schaal at the fast food restaurant where she worked. After spending some time at the mall, Ms. Davis and Ms. Brooks set out in search of the home of a man Ms. Davis had recently met. Ms. Brooks joined Ms. Davis in the front seat and held her infant son on her lap, leaving Erica, her two-year-old daughter, in the back seat by herself. While returning to pick up Ms. Schaal, Ms. Davis drove the car off the road and into a dirt embankment. Ms. Brooks did not see what happened because she was tending to Erica who had gotten "a little rowdy" in the back seat.

On January 29, 1992, Ms. Brooks filed suit against Ms. Davis and Ms. Schaal's mother1 in the Circuit Court for Montgomery County. She later filed a separate suit on behalf of her daughter against Ms. Davis and Ms. Schaal. Ms. Brooks served copies of both complaints against Allstate Insurance Company, her uninsured motorist carrier.

Ms. Davis answered the complaints in September 1992. She admitted that "she was driving the vehicle at the time and place mentioned, that she suddenly

1

Ms. Brooks believed erroneously that Ms. Schaal's mother was the owner of the car.

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lost control of the vehicle, ran off the road and struck an embankment," but she denied that she was negligent in any way. During her deposition on December 17, 1992, Ms. Davis explained that she lost control of the car because "[t]here was another car over in my lane. And I went over to move, you know, to miss it and went off in the ditch."

The record provides little insight into the events occurring between December 1992 and October 1994 when this case was tried. The trial court granted summary judgments dismissing the claims against both Ms. Schaal and her mother and consolidated Ms. Brooks' and her daughter's complaints for trial. Accordingly, the only claims tried in October 1994 were the negligence claims against Ms. Davis. Allstate did not participate in the trial.

Ms. Davis' assertion that she lost control of the car while attempting to avoid an oncoming car was a central issue at trial from the very beginning. Even before the proof began, Ms. Davis' lawyer informed the jury that Ms. Davis would testify that she lost control of the car while attempting to avert a collision with another car. During the first day of trial, Ms. Brooks' witnesses were examined and cross-examined about the other car and Ms. Davis' statements about it. At the end of the first day of trial, Ms. Davis' lawyer informed the trial court that his client would testify the following day about the other car and that he intended to move to conform the pleadings to the proof in accordance with Tenn. R. Civ. P. 15.02 following her testimony.

On the morning of the second day of trial, Ms. Brooks' lawyer objected to permitting Ms. Davis to testify about the other car because she had waived her right to assert this defense by failing to include it in her answer. The trial court, concluding that this testimony was not a surprise because it was consistent with Ms. Davis' December 1992 deposition, ruled that Ms. Davis would be permitted to testify about the other car and that her lawyer would be permitted to amend the pleadings to conform to this proof. Ms. Brooks' lawyer did not request a continuance in order to better prepare to cross-examine Ms. Davis or to obtain rebuttal proof. -3-

Ms. Davis was examined and cross-examined about her efforts to avoid the oncoming car and whether she had mentioned the other car to Ms. Brooks, the investigating officer, or the lawyer who prepared her answer. At the conclusion of Ms. Davis' proof, the trial court granted her motion to amend her answer to conform her pleadings to her testimony. The trial court also permitted Ms. Brooks' lawyer to choose whether the case should be submitted to the jury on Ms. Davis' negligence alone or whether the jury should be instructed to apportion fault between Ms. Davis and the unknown driver of the other car. Ms. Brooks' lawyer requested that the jury be instructed to apportion fault between Ms. Davis and the unknown driver of the other car.

The trial court instructed the jury that it should determine whether Ms. Davis was at fault and that it should also apportion the fault between Ms. Davis and the unknown driver of the other car. The jury returned with a verdict that no fault was chargeable to Ms. Davis and that 100% of the fault was chargeable to the "Alleged Unknown Other Driver." The jurors also assessed Ms. Brooks' damages at $25,000 and Erica Brooks' damages at $10,000. Thereafter, the trial court entered a judgment against the unknown defendant.2

II.

The linchpin of Ms. Brooks' argument is that Ms. Davis' testimony that she was reacting to a sudden emergency when she ran off the road was an affirmative defense. She insists that Tenn. R. Civ. P. 8.03 required Ms. Davis to include this defense in her answer and that her failure to plead this defense specifically should have prevented her from relying on it at trial. We must, accordingly, construe Tenn. R. Civ. P. 8.03 and Tenn. R. Civ. P. 15.02.

The trial court initially entered the judgment against the unknown defendant and Allstate Insurance Company. Allstate moved to alter or amend the judgment, pointing out that Ms. Brooks had not complied with the service requirements of Tenn. Code Ann.

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