Court of Appeals of Tennessee.

DKB TRUCKING COMPANY, LLC

v.

JNJ EXPRESS, INC.

 

No. M2012–00008–COA–R3–CV.

July 26, 2012 Session.

Sept. 5, 2012.

 

Appeal from the Circuit Court for Putnam County, No. 08J0206; John J. Maddux, Judge.

Timothy A. Housholder, Knoxville, Tennessee, for the appellant, DKB Trucking, LLC.

 

Trevor L. Sharpe and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, JNJ Express, Inc.

 

ANDY D. BENNETT, J., delivered the opinion of the Court, in which PATRICIA J. COTTRELL, P.J. and RICHARD H. DINKINS, J., joined.

 

OPINION

ANDY D. BENNETT, J.

*1 Plaintiff sued for damages for the destruction of a tractor and trailer and for the loss of its use. Defendants moved for a directed verdict, arguing that loss of use and/or loss of profits cannot be recovered because the property was destroyed and it was not unique. The jury found liability for the destruction of the property and for loss of use and/or loss of profits. The trial court then granted a directed verdict on the loss of use/loss of profits, stating that such damages cannot be recovered for destroyed property. Plaintiff appeals. We reverse.

 

DKB Trucking, LLC (“DKB”) is licensed by the federal government and the Commonwealth of Virginia to haul hazardous materials. On February 28, 2008, a collision occurred in Putnam County involving a tractor-trailer owned by DKB and one owned by JNJ Express, Inc. (“JNJ”). DKB’s tractor and trailer were totally destroyed. Dwayne Burris, the owner of DKB, testified that the tractor was a conventional 1998 Kenworth with an added “wet line,” which was necessary to haul hazardous waste because it provided power to run a vacuum tanker. DKB replaced the trailer, but did not replace the tractor even though four were located that were similar to the destroyed Kenworth. DKB provided proof that the tractor and trailer were worth about $45,000.

 

Not surprisingly, the hauling of hazardous materials is heavily regulated. Each of DKB’s tractors must have proper licensure, permits and placards. The process of obtaining the proper documents can take three months. DKB provided testimony that the average revenue earned by the truck had been approximately three thousand seven hundred dollars a week ($3,700).

 

Prior to trial, JNJ filed a motion in limine seeking to prohibit DKB from asserting a claim for loss of use and/or lost profits for the tractor-trailer. The trial court denied the motion.FN1 After DKB concluded its proof, JNJ moved for a directed verdict and requested the trial court to rule that DKB could not recover damages for loss of use or lost profits. The trial court took the motion under advisement.

 

FN1. The order denying the motion in limine does not appear in the record. Both parties’ briefs assert that the motion was denied.

 

Prior to closing arguments, the trial court bifurcated the issue of damages. Closing arguments, jury instructions and jury deliberations were first held on the issue of liability for the fair market value of the tractor-trailer. The jury found JNJ liable for the destruction of the tractor-trailer and awarded damages of $45,000. Then, closing arguments, jury instructions and jury deliberations were had on the issue of loss of use or lost profits. The jury awarded DKB $44,000 for loss of use and/or lost profits. The trial court then granted JNJ’s motion for a directed verdict, holding that DKB could not recover for the loss of use or lost profits. DKB filed a motion to alter or amend the judgment as to the loss of use and/or lost profits, which the trial court denied. DKB appealed the trial court’s granting of the directed verdict, prohibiting DKB from recovering for loss of use and/or lost profits.

 

STANDARD OF REVIEW

*2 A trial court may direct a verdict on an issue of law because the determination of legal questions is the province of the court, not the jury.   In re Estate of Marks, 187 S.W.3d 21, 27 (Tenn.Ct.App.2005). Thus, the appellate court reviews the trial court’s decision de novo without a presumption of correctness. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 206 (Tenn.Ct.App.2008).

 

ANALYSIS

The trial court determined that, as a matter of law, DKB could not obtain damages for loss of use and/or loss of profits:

 

The Court is of the opinion that the measure of damages for personal property either lost or destroyed, as was the case in this case before the Court here today, that that measure of damages is a fair market value of that property at the time and place of [its] loss or destruction. And consequently, the Court is of the opinion that the Plaintiff cannot recover for loss of use in regard to this destroyed property.

 

This Court has held that the general rule in Tennessee is that “lost profits are not recoverable when the plaintiff’s personal property has been completely destroyed and is not capable of being repaired.” Tire Shredders, Inc. v. ERM–North Cent., Inc., 15 S .W.3d 849, 855 (Tenn.Ct.App.1999). However, “we recognize that a plaintiff may recover damages for loss of use or lost profits when the plaintiff’s personal property has been negligently destroyed by the defendant and the property cannot be replaced within a reasonable period of time.” Id. at 857 (emphasis added). JNJ maintains that the tractor, unlike the tire shredder machine that was the subject of the Tire Shredders case, was not of such a unique character as to be incapable of replacement within a reasonable period of time. In support of its argument, JNJ refers to Dwayne Burris’s testimony that the tractor was a conventional 1998 Kenworth and that four similar tractors were available for purchase following the accident.

 

JNJ’s emphasis on the unique character of the destroyed property is somewhat misplaced. The court’s emphasis in Tire Shredders was not placed upon the uniqueness of the destroyed property, but on the ability to replace it within a relatively short period of time. The court’s explicit holding was:

 

[W]e recognize an exception to the general rule set forth in Tennessee Pattern Jury Instruction 14.40 and hold that, if the plaintiff’s personal property has been completely destroyed by the negligence of the defendant and cannot be replaced within a reasonable period of time, the plaintiff may recover damages from the defendant for the loss of use of the property or for profits lost as a result of the destruction of the property.

 

Id. In the Tire Shredders case, the uniqueness of the tire shredder was the major factor in the inability to replace it in a reasonable amount of time, but the opinion does not limit the factors a court or jury may consider in determining what the reasonable amount of replacement time may be in a given situation.

 

*3 DKB maintains that the regulations involved in the hazardous waste hauling industry lengthen the time it takes to replace a tractor. Implicit in DKB’s argument is that a tractor is not “replaced” by the mere purchase of a subsequent tractor. The newly purchased tractor must be examined and mechanical issues resolved. Furthermore, a tractor cannot be used to haul hazardous waste until it has met the federal and state (in this case, Virginia) requirements as evidenced by licensure and permits. Only after these requirements are met, and the subsequent tractor is put into service, is the destroyed tractor “replaced.” The unrebutted testimony of Dwayne Burris was that the replacement period is about three months.

 

We hold that, under the circumstances of this case, loss of use or lost profits may be recovered for the reasonable amount of time it takes to put the replacement tractor into service. Consequently, we reverse the trial court’s grant of the directed verdict and reinstate the judgment of the jury.

 

Costs of appeal are assessed against JNJ Express, Inc., for which execution may issue if necessary.

United States District Court, M.D. Florida,

Tampa Division.

GREAT AMERICAN ASSURANCE COMPANY, Plaintiff,

v.

SANCHUK, LLC, and Chuck Elliott, Defendants.

 

No. 8:10–cv–2568–T–33AEP.

Sept. 5, 2012.

 

Andrew Edward Grigsby, John Joseph Cavo, Sina Bahadoran, Christine Renella Prieto, Coral Gables, FL, Eric A. Hiller, Melissa A. Gillinov, Hinshaw & Culbertson, LLP, Miami, FL, for Plaintiff.

 

Daniel P. Mitchell, Debra M. Metzler, Barr, Murman & Tonelli, PA, Tampa, FL, Kenneth Charles Podor, The Podor Law Firm, LLC, Salon, OH, for Defendants.

 

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

*1 This matter is before the Court pursuant to Defendants Sanchuk, LLC, and Chuck Elliott’s Motion in Limine Regarding Plaintiff’s Exhibits One through Four and Testimony of George Elliott (Doc. # 130), which was filed on August 17, 2012. Plaintiff Great American Assurance Company filed a Response in Opposition (Doc. # 137) on August 29, 2012. For the reasons that follow, the Court denies the Motion.

 

I. Background

Defendants object on the basis of untimely disclosure to the use of certain documents relating to George Elliott’s insurance policies and the testimony of George Elliott in Plaintiff’s case in chief. Because Plaintiff failed to list George Elliott in both its initial Rule 26 Disclosures and its Amended Rule 26 Disclosure, Defendants argue that Plaintiff should be barred from presenting this evidence at trial. Additionally, Defendants argue that this matter concerns only Charles (“Chuck”) Elliott, and thus that any insurance Charles’s brother George had with Great American is irrelevant to this action.

 

In response, Plaintiff asserts that it had no duty to disclose George Elliott because Defendants had already disclosed him and because Charles Elliott had already testified about George Elliott. Thus, since Rule 26(e)(1)(A) states that “[a] party who has made a disclosure under Rule 26(a) … must supplement or correct its disclosure or response … if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing,” Plaintiff argues that Defendants cannot insist on excluding a witness whose relevance Defendants were already aware of. FED. R. CIV. P. 26(e)(1)(A).

 

Plaintiff next argues that the documents relating to George Elliott’s insurance coverage are relevant because George obtained his policy before Charles and, “according to Charles Elliott[‘s] [deposition testimony], both brothers intentionally obtained ‘$1 million policies’ because they wanted to comply with ‘the requirements of Sherwin Williams.’ “ (Doc. # 137 at 8). George Elliott’s coverage is thus relevant in that Charles Elliott seems to have anticipated that his coverage would be the same as his brother’s. In response to Defendants’ argument that the use of the documents would be prejudicial, Plaintiff stresses that “none of these exhibits are intended for use as primary evidence. Only if George Elliott denies the truth during direct examination will these exhibits then be introduced as rebuttal evidence to establish the truth.” (Id. at 10).

 

Specifically responding to Defendants’ argument that Plaintiff failed to disclose the documents in response to Defendants’ January 2012 discovery request, Plaintiff states that “Great American served its response [to that request] before Charles Elliott testified,” and that, consequently, Plaintiff “did not know George Elliott is Charles Elliott’s brother, works for Sherwin Williams, had discussed Sherwin Williams’ requirements with Charles Elliott and that George Elliott had obtained his $1 million non-trucking policy because he desired to comply with Sherwin Williams requirements.” (Id. at 11).

 

II. Discussion

*2 “[D]ecisions regarding the testimony of improperly disclosed witnesses [fall] within the broad discretion of the trial judge.” Fla. Marine Enters. v. Bailey, 632 So.2d 649, 651 (Fla. 4th DCA 1994). Specifically aiding in the interpretation of Rule 26(e), the Advisory Committee Notes explain that there is “ ‘no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition.’ ” Watts v. Hospitality Ventures, LLC, No. 2:06–cv–1149–MEF, 2008 U.S. Dist. LEXIS 5632, at *3 (M.D.Ala. Jan. 25, 2008) (quoting FED. R. CIV. P. 26(e) advisory committee’s note). This interpretation favors Plaintiff’s argument that it was under no duty to disclose George Elliott after Charles Elliott identified George in his deposition.

 

Additionally, given that Defendants were put on notice of George Elliott’s insurance policy at the time of Charles Elliott’s deposition, the fact that Plaintiff did not provide the relevant documents (which verify the existence of the policy) until August 1, 2012, is not highly prejudicial to Defendants. The prejudicial impact of this evidence, if any, is outweighed by its probative value, as the documents and testimony of George Elliott regarding George’s policy assist the trier of fact in understanding what policy Charles Elliott sought and thought he had acquired. The Court therefore denies Defendants’ Motion.

 

Accordingly, it is

 

ORDERED, ADJUDGED, and DECREED:

 

Defendants’ Motion in Limine Regarding Plaintiff’s Exhibits One through Four and Testimony of George Elliott (Doc. # 130) is DENIED.

 

DONE and ORDERED.