Appellate Court Will Not Overrule a Factual Finding by Jury


Allocation Of Fault Is A Factual Determination For The Jury

Plaintiff appealed the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial in James Justice v. Paul Gaiter Et Al, No. M2019-01299-COA-R3-CV, Court Of Appeals Of Tennessee At Nashville (October 15, 2020). The Tennessee Court of Appeals dealt with the issue of who determines facts in a jury trial.


The motor vehicle accident occurred on December 23, 2016, in Williamson County, near the Cool Springs Galleria shopping complex. Paul Gaiter (“Defendant”) was attempting to drive from one parking lot to another across Seaboard Lane, which separated the parking lots. Defendant, who had pulled into the road after being allowed by the cars in the lanes closest to him, was moving his vehicle into the lane occupied by James Justice (“Plaintiff”) when the two vehicles came into contact. The nature of the contact and extent of the damage is disputed.

Plaintiff sued Defendant alleging negligence and negligence per se, and requesting $150,000 in compensatory damages. Believing that Defendant had no insurance or that his insurance coverage was insufficient to satisfy the claim, Plaintiff provided notice to his uninsured motorist coverage carrier, Mid-Century Insurance Company. Defendant and Mid-Century each filed answers denying liability and raising the defense of comparative fault.

The jury trial took place on May 6 and 7, 2019. The jury found both parties were at fault and assessed 60 percent of the fault to Plaintiff and 40 percent of the fault to Defendant and awarded no damages. The court accepted the verdict and entered judgment in favor of Defendant.


Allocation of fault is a factual determination for the jury. The Tennessee Supreme Court has set out the standard for reviewing jury findings concluding that the sufficiency of a civil jury verdict, a court will only set aside findings by a jury if there is no material evidence to support the verdict.

To determine whether there is such material evidence, the court must (1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all countervailing evidence. The credibility of witnesses is the province of the jury, not appellate courts.

Material evidence is evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, be determinative of the case.

It matters not a whit where the weight or preponderance of the evidence lies under material evidence review. Because the material evidence standard lies at the foundation of the right to trial by jury, if there is material evidence to support a jury verdict, the appellate courts must affirm it.

The evidence presented in this case, as related to the issue on appeal, consists of the testimony of Plaintiff and Defendant and of photos showing the damage to the vehicles of both parties. At trial, Plaintiff testified that he was “sitting in the traffic . . . [which was] virtually stopped when he saw Defendant ‘barreling down’ on him from the left.”

Conversely, Defendant testified that he was sitting still when the collision took place. Defendant denied hitting Plaintiff’s vehicle squarely in the side, broadsiding or “T-boning” him. The photographic exhibits entered by the parties showed scraping along the side of Plaintiff’s vehicle. The scraping appears down the length of the driver-side front door, and there are also scrape marks on the driver-side rear tire and driver-side rear fender. Photos of Defendant’s vehicle show damage across the front of the car, primarily but not exclusively from the middle to the passenger side.

In denying Plaintiff’s Motion for a Judgment Notwithstanding the Verdict and/or New Trial, the trial court found that the jury’s verdict is not “contrary to the weight of the evidence.” Because there was material evidence to support the jury’s verdict, the appellate court concluded that the trial court did not abuse its discretion in denying Plaintiff’s motion.


It is axiomatic that people involved in an automobile collision believe that the other party was at fault and they were innocent. In a case where a jury apportions liability contrary to the belief of one party who gets no damages, an appeal is almost inevitable. No court of appeal will ever interpose its judgment of the evidence over the judgment of the jury and therefore the plaintiff had no chance in this appeal.

© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Read last two issues of ZIFL here.

Go to Barry Zalma videos at at

Read posts from Barry Zalma at

Go to Barry Zalma on YouTube-

Go to the Insurance Claims Library –

Subscribe to e-mail Version of ZIFL, it’s Free! –

This entry was posted in Zalma on Insurance. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.