§31.17 Waiver of Statutory Damage Limits

The Case: Crutcher v. Maury County , No. M2007-00244-COA-R3-CV, 2008 WL 2695660 (Tenn. Ct. App. Jul. 9, 2008).

The Basic Facts: Plaintiffs sought entry and recovery of judgment from governmental entity that was in excess of the limits set forth in the statute.

The Bottom Line:

• "[W]e agree with the trial court that in order to recover for any amount in excess of the limits in Tenn. Code Ann. § 29-20-403, the waiver of limits of liability must be 'expressly contained' in the insurance policy as required by Tenn. Code Ann. § 29-20-404(a). This conclusion has been reached in three other court of appeals' decisions. See Coburn v. City of Dyersburg, 774 S.W.2d 610, 611 (Tenn. Ct. App. 1989); Goff v. Howell, [No. 01A01-9401-CV-00024, 1994 WL 317542, at *3-4 (Tenn. Ct. App. July 6, 1994)] ('As we read [Tenn. Code Ann. § 29-20-404(a)] that waiver requires two things: an express waiver of the liability limits by the county and the inclusion of that waiver in an insurance policy covering the increased exposure. One of the two is not sufficient'); Cline v. City of Chattanooga, CA No. 976, 1991 WL 25941, at *3 (Tenn. Ct. App. March 4, 1991) (perm. app. denied August 5, 1991) ('absent an express provision in the liability policy as required by [Tenn. Code Ann. § 29-20-404(a)], the limits of Tenn. Code Ann. § 29-20-403 must be applied'). We also note that permission to appeal to the Tennessee Supreme Court was denied in Coburn and Cline." 2008 WL 2695660 at *5.

Recent Cases: Black v. City of Memphis , No. W2007-02562-COA-R3-CV, 2009 WL 2461816 (Tenn. Ct. App. Aug. 13, 2009) (the Tennessee Governmental Tort Liability Act precludes an award of discretionary costs against a municipality that would exceed the statutory damage cap, even if the governmental entity engages in conduct that prolongs the case and drives up costs).