UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MS. UNDERWOOD’S MEMORANDUM IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY JUDGMENT,
EXPENSES AND ATTORNEYS’ FEES

The Plaintiff, Jaimee Underwood (“Ms. Underwood”), through the undersigned counsel, respectfully submits the following Memorandum in Support of her Motion for Summary Judgment, Expenses and Attorneys’ Fees.

For the reasons which follow, this Court should enter Summary Judgment in favor of Ms. Underwood on the issue of Defendant Fitzgerald’s being “Disqualified” at three (3) specific points in time: (a) at the time Continental offered Defendant Fitzgerald a job on or about July 1, 2004, (b) at the time Continental hired Defendant Fitzgerald on or about July 9, 2004, and (c) at the time of the crash on July 19, 2004.   This Court should thereafter award Ms. Underwood her reasonable attorneys’ fees and expenses in this cause.

FACTS

The above-styled cause of action involves a fatality crash on July 19, 2004 on Interstate 40 East in Nashville, Tennessee involving a tractor trailer being driven by Defendant Fitzgerald in the course and scope of his employment as a commercial truck driver for Defendant Continental Express. (Amended Complaint, Para. 5, 30, 39, 40, 41; Continental Answer Para. 5, 30, 39, 40, 41) Two months earlier, on or about May 8, 2004, the State of Missouri had revoked Defendant Fitzgerald’s commercial driver’s license for a period of one year. (Exhibit 1 to current Motion; White Depo. 171)   

On July 1, 2004, Continental offered Defendant Fitzgerald a job as a commercial truck driver (White Depo. 172) and on or about July 9, 2004, approximately ten (10) days prior to the crash, Continental hired Defendant Fitzgerald as a commercial truck driver. (Amended Complaint, Para. 21, 30; Continental Answer Para. 21, 30).

The Federal Motor Carrier Safety Regulations, codified at 49 C.F.R. Secs. 382, et seq. (“hereinafter “FMCSR”) apply to Continental and define what it means to be “Qualified” and also “Disqualified” from operating a commercial motor vehicle.  (White Depo. 165-167)

Jim White has been Safety Director at Continental since March 2004 and admitted that he has no duties other than insuring that Continental comply with the FMCSR (White Depo. 23, 40).   Mr. White testified that on the day after the crash, he met with Pete Campbell, Continental’s Vice President and Risk Manager, and that together they reviewed Defendant Fitzgerald’s Motor Vehicle Record from the State of Missouri (Exhibit A to Amended Complaint) (hereinafter “Mo-MVR”) and realized that Defendant Fitzgerald was Disqualified to drive a commercial motor vehicle under the FMCSR  (White Depo. 48-49)  Mr. White testified that it was as “clear as a bell” that Defendant Fitzgerald was Disqualified. (White Depo. 52)

Mr. White admitted that Defendant Fitzgerald was Disqualified on July 1, 2004 when Continental offered Fitzgerald a job and that Continental had documents in its possession that showed Fitzgerald was Disqualified (White Depo. 172) Mr. White further admitted that Defendant Fitzgerald was Disqualified on July 19, 2004 when the crash occurred and that Continental had had documents in its possession for eighteen days that showed Defendant Fitzgerald was Disqualified (White Depo. 174-175)

Pete Campbell has been Vice President and Risk Manager at Continental since 2000 (Campbell Depo. 32, 120) Mr. Campbell testified that one of his duties at Continental is to oversee Continental’s litigation, a duty he has been performing for the past three (3) years.   Mr. Cambell admitted that he executed the Waiver of Service in the above-styled cause of action on behalf of Continental and that he also executed the discovery responses in the above-styled action on behalf of Continental (Campbell Depo. 120-121)

Mr. Campbell admitted that the word “Disqualified” is a term of art in the FMCSR and that the term is specifically defined by the FMCSR (Campbell Depo. 132) Mr. Campbell admitted that if someone says “Disqualified”, he knows what they’re talking about (Campbell Depo. 132)    Mr. Campbell admitted that it is “crystal clear” from looking at Defendant Fitzgerald’s Mo-MVR that Defendant Fitzgerald’s commercial driver’s license was revoked in Missouri at the time Continental hired Defendant Fitzgerald (Campbell Depo. 89) Mr. Campbell admitted that Defendant Fitzgerald is Disqualified under the FMCSR (Campbell Depo. 97, 125)  Mr. Campbell further admitted that whether Defendant Fitzgerald is Disqualified doesn’t require a judgment call (Campbell Depo. 98)

Mr. Campbell testified that he became concerned about whether Defendant Fitzgerald was Disqualified on the day after the crash (Campbell Depo. 83, 93) Mr. Campbell testified that he looked at Defendant Fitzgerald’s file on the day after the crash and that he came to the conclusion that Defendant Fitzgerald was Disqualified (Campbell Depo. 103) He admitted that by Friday, July 23, 2004, he had concluded that Defendant Fitzgerald’s Missouri commercial driver’s license was revoked and had also reached the conclusion that Defendant Fitzgerald was Disqualified (Campbell Depo. 129-130) He admitted that he realized that Defendant Fitzgerald was Disqualified during that first week after the crash on July 19, 2004 (Campbell Depo. 130) He testified that after he reviewed Defendant Fitzgerald’s Mo-MVR, there was “no doubt in his mind” that Defendant Fitzgerald was Disqualified (Campbell Depo. 131) He admitted that it was fair to say that within two weeks of July 19, 2004, a group of persons at Continental consisting of himself, Jim White, Kelly Woolridge, and Auburn Jackson, concluded “for certain” that Fitzgerald was Disqualified (Campbell Depo. 132) Kelley Woolridge is President of Continental.  (White Depo. 181) Auburn Jackson is the Communications Director at Continental. (Campbell Depo. 157) Mr. Campbell also admitted that he was “certain” that this group of individuals at Continental “knew” Fitzgerald became Disqualified on May 8, 2004 and would remain Disqualified until May 8, 2005 (Campbell Depo. 132-133)

Similar to Mr. White’s testimony, Mr. Campbell admitted that Defendant Fitzgerald was Disqualified when Continental offered Defendant Fitzgerald a job on July 1, 2004 and that Continental had documents in its possession on that date that showed Defendant Fitzgerald was Disqualified (Campbell Depo. 125) Mr. Campbell admitted that on the day Continental hired Defendant Fitzgerald, he was Disqualified and that Continental had in its possession documents that showed Defendant Fitzgerald was Disqualified. (Campbell Depo., 126)  Mr. Campbell admitted that Defendant Fitzgerald was Disqualified on the day of the crash on July 19, 2004 and that Continental had documents in its possession on that date that showed Defendant Fitzgerald was Disqualified (Campbell Depo. 126-127)

On August 4, 2004, Ms. Underwood filed her original Complaint in the above-styled cause alleging reckless conduct on the part of Defendant Fitzgerald and Continental, but not specifically making any allegations regarding the Federal Motor Carrier Safety Regulations. (Complaint) On August 24, 2004, after discovering that Continental had Defendant Fitzgerald’s Mo-MVR in its possession when Defendant Fitzgerald was hired, Ms. Underwood filed an Amended Complaint which made specific allegations against Continental that were based upon the “Disqualification” provisions of the FMCSR. (Amended Complaint, Para. 6-26) Ms. Underwood attached as an Exhibit to her Amended Complaint the Mo-MVR that was in Continental’s possession when Defendant Fitzgerald was hired.  (Amended Complaint, Exhibit A) In her Amended Complaint, Ms. Underwood specifically set forth the provisions of the FMCSR regarding “Disqualified” drivers. (Amended Complaint, Para. 6-11)

Continental filed its Answer to Ms. Underwood’s Amended Complaint on or about September 30, 2004 and admitted that the provisions of the FMCSR set forth in the Amended Complaint were accurate. (Continental Answer, Para. 6-11) However, in Answer to Ms. Underwood’s specific allegations that Defendant Fitzgerald was “Disqualified” under those same provisions of the FMCSR, Continental denied each allegation. (Amended Complaint, Para. 16-20; Continental Answer, Para. 16-20) Specifically, Continental denied the following allegations made by Ms. Underwood in her Amended Complaint:

1. In Paragraph 16, Ms. Underwood alleged that the Mo-MVR indicates that the State of Missouri had revoked Defendant Fitzgerald’s commercial driver’s license on May 8, 2004, which allegation was denied by Continental in its Answer. (Amended Complaint, Para. 16; Continental Answer, Para. 16)

2. In Paragraph 17, Ms. Underwood alleged that the Mo-MVR indicates that Defendant Fitzgerald was not eligible for reinstatement of his commercial driver’s license until May 8, 2005, which allegation was denied by Continental. (Amended Complaint, Para. 17; Continental Answer, Para. 17)

3. In Paragraph 18, Ms. Underwood alleged that the Mo-MVR indicates that Defendant Fitzgerald had lost his commercial motor vehicle driving privileges in Missouri from May 8, 2004 to May 8, 2005, which allegation was denied by Continental.(Amended Complaint, Para. 18; Continental Answer, Para. 18)

4. In Paragraph 19, Ms. Underwood alleged that Defendant Fitzgerald was “Disqualified” from driving a commercial motor vehicle from May 8, 2004 to May 8, 2005, which allegation was denied by Continental.(Amended Complaint, Para. 19; Continental Answer, Para. 19)

5. In Paragraph 20, Ms. Underwood alleged that as of July 2, 2004, Continental had actual and specific knowledge that Defendant Fitzgerald was “Disqualified” from driving a commercial motor vehicle, which allegation was denied by Continental.(Amended Complaint, Para. 20; Continental Answer, Para. 20)

On or about August 19, 2004, Ms. Underwood served Requests for Admissions upon Continental, to which Continental responded on or about October 1, 2004. (Admission Responses, Exhibit 5 to the current Motion) In her Requests for Admission, Ms. Underwood propounded several Requests upon Continental again requesting that Continental admit certain facts regarding whether Defendant Fitzgerald was “Disqualified” under the FMCSR. (Admission Responses Nos.  14, 15, 52, 53, 54, 55) However, once again, Continental refused to admit any facts regarding Defendant Fitzgerald’s being disqualified under the FMCSR.    Specifically, Continental refused to admit the following facts requested by Ms. Underwood in her Requests for Admissions:

1. In Request 14, Ms. Underwood asked that Continental admit that Defendant Fitzgerald’s Missouri commercial driver’s license was revoked on May 8, 2004, which Request Continental failed to admit.(Admission Responses No.  14)

2. In Request No. 15, Ms. Underwood asked that Continental admit that at the time of the crash, Defendant Fitzgerald’s Missouri commercial driver’s license was revoked, which Request Continental failed to admit.(Admission Responses No.  15)

3. In Request No. 52, Ms. Underwood asked that Continental admit that Defendant Fitzgerald was “Disqualified” at the time Continental hired Defendant Fitzgerald, which Request was denied by Continental.(Admission Responses No.  52)

4. In Request No.54, Ms. Underwood asked that Continental admit that Defendant Fitzgerald was “Disqualified” at the time of the crash on July 19, 2004, which Request was denied by Continental.(Admission Responses No.  54)

In the wake of Continental’s denials in both their pleadings and written discovery, counsel for Ms. Underwood traveled to Little Rock, Arkansas on three (3) separate occasions, specifically February 23-25, 2005; April 21-22, 2005; and April 27-29, 2005, for the purpose of taking depositions of Continental personnel. (Affidavit of Larry Hayes, Jr., Para. 9) Much to said counsel’s shock and dismay, he soon discovered that there was absolutely no doubt in anyone’s mind at Continental that Defendant Fitzgerald was in fact Disqualified on the dates in question. (Affidavit of Larry Hayes, Jr., Para. 10) Said counsel was even more alarmed to realize that when Continental denied in its Answer of September 30, 2004 and denied in its Responses of October 1, 2004 that Defendant Fitzgerald was Disqualified, Continental knew that the representations it was making in those pleadings were untrue. (Affidavit of Larry Hayes, Jr., Para. 11) Defendant Fitzgerald’s being Disqualified under the FMCSR is a central issue in this cause and had Continental simply admitted what it knew to be true, instead of attempting to mislead Ms. Underwood and this Court, Ms. Underwood in all likelihood would not have incurred the time and expense associated with taking depositions in Little Rock, Arkansas. (Affidavit of Larry Hayes, Jr., Para. 12)

ARGUMENT

1. SUMMARY JUDGMENT

Summary judgment is appropriate in case where there is no genuine issue of material fact that can reasonably be inferred by the jury in favor of the non-moving party. 

Rule 56(e) of the Federal Rules of Civil Procedure provides as follows:

[W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial.

Summary Judgment is an appropriate method of disposing of a case if there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law.  As stated by the Supreme Court:

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986)

If the moving party has made an appropriate and properly supported Motion for Summary Judgment the burden shifts to the non-moving party to establish the existence of a genuine issue of fact. “[W]hen the moving party has carried its burden under Rule 56(c) its opponent must do more than simply show that there is some metaphysical doubt as to the material facts”  Matsushita Electrical Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986).  “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’” Id. at 587.

In such a situation there can be no genuine issue of material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.  The moving party is entitled to a judgment as a matter of law. 

Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986)

“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”, Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).    “Factual disputes that are irrelevant or unnecessary will not be counted”.  Id. at 248. 

In the case at bar, Ms. Underwood earnestly submits that there are no genuine issues of material fact in dispute with regard to whether Defendant Fitzgerald was “Disqualified” from operating a commercial motor vehicle pursuant to federal law on three specific dates: (1) the day Continental offered him a job, (2) the day Continental hired him, and (3) the day that this crash occurred.    

1. The Federal Motor Carrier Safety Regulations.

The provisions of 49 C.F.R. Secs. 382 et seq. are commonly referred to as the “Federal Motor Carrier Safety Regulations” (hereinafter “FMCSR”) and its provisions are binding upon Defendants Fitzgerald and Continental.     One of the primary purposes of the FMCSR is to “help reduce or prevent truck ...accidents, fatalities, and injuries...by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.”  49 C.F.R. Sec. 383.1(a) (October 3, 1981).

Section § 383.5 of the Federal Motor Carrier Safety Regulations provides:

Disqualification means any of the following three actions:

1. The suspension, revocation, or cancellation of a CDL by the State or jurisdiction of issuance.

2. Any withdrawal of a person's privileges to drive a CMV by a State or other jurisdiction as the result of a violation of State or local law relating to motor vehicle traffic control (other than parking, vehicle weight or vehicle defect violations).

49 C.F.R. Sec. 383.5 (May 5, 2003)

Section 391.15 of the Federal Motor Carrier Safety Regulations provides:

1. General. A driver who is disqualified shall not drive a commercial motor vehicle.  A motor carrier shall not require or permit a driver who is disqualified to drive a commercial motor vehicle.

2. Disqualification for loss of driving privileges. (1) A driver is disqualified for the duration of the driver’s loss of his/her privilege to operate a commercial motor vehicle on public highways, either temporarily or permanently, by reason of the revocation, suspension, withdrawal, or denial of an operator’s licence, permit, or privilege, until that operator’s licence, permit or privilege is restored by the authority that revoked, suspended, withdrew, or denied it.

49 C.F.R. Sec 391.15 (June 18, 1998)

1. Defendant Fitzgerald Was Disqualified on the Day Continental Offered Him a Job, Was Disqualified on the Day Continental Hired Him, and Was Disqualified on the Day this Crash Occurred.

Defendant Fitzgerald’s Mo-MVR (Exhibit 1 to the current Motion) clearly indicates that Defendant Fitzgerald’s Missouri commercial driver’s license had been revoked on May 8, 2004 and that it would remain revoked until May 8, 2005.   In other words, Defendant Fitzgerald’s Missouri commercial driver’s license had been revoked for one year, and was revoked at the time Continental offered Mr. Fitzgerald a job on July 1, 2004, at the time Continentalhired Defendant Fitzgerald on or about July 9, 2004, and at the time this crash occurred on July 19, 2004. Therefore, under Sections 383.5 and 391.15 of the FMCSR, Defendant Fitzgerald was Disqualified from operating a commercial motor vehicle on those three specific dates. Both Jim White, Safety Director at Continental and Pete Campbell, Vice President and Risk Manager at Continental, agreed in their testimony before this Court that Defendant Fitzgerald was Disqualified on those three specific dates. Mr. White testified that it was as “clear as a bell” (White Depo. 52) and Mr. Campbell testified that it was “crystal clear”. Mr. Campbell even admitted that it’s not even a close call, requiring no judgment, only application of the law to the facts. (Campbell Depo. 98)  In fact, Ms. Underwood does not anticipate that any of the Defendants will dispute that she is entitled to summary judgement on this issue.

Ms. Underwood submits that there is no genuine issue of material fact regarding whether Defendant Fitzgerald was Disqualified under the FMCSR on the three (3) dates in question.   Ms. Underwood further submits that, as far as between the parties goes, there is really no genuine issue regarding the application of the law to those facts.  

The only genuine issues on the Disqualification topic are (1) why Continental, when it knew facts were “crystal clear” in the words of one witness, and knew facts were “clear as a bell” in the words of another, chose to deny those same facts in its Answer and again in its discovery Responses, and (2) whether Ms. Underwood should be compensated for having to incur unnecessary fees and expenses proving those facts.

1. EXPENSES AND ATTORNEYS’ FEES

Rule 37 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

1. Failure to Disclose; False or Misleading Disclosure; Refusal to Admit

2. If a party fails to admit the genuineness of any documents or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys’ fees.  The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit. 

Under Rule 37, if a party fails to admit a matter that another party subsequently establishes, the other party may request its reasonable expenses, including attorneys’ fees, incurred in proving the matter.  Bradshaw v. Thompson, 454 F.2d 75 (6 ^th Cir. 1972), cert. denied, 409 U.S. 878, 93 S.Ct. 130 (1972). The sanction for improperly denying a request is that the responding party will be required to pay the costs the other party incurred in proving the matter, including a reasonable attorneys’ fee.  National Seminconductor Corp. v. Ramtron International Corp., 265 F.Supp.2d 71 (D.D.C. 2003);  Johnson National Life Ins. Co. v. Jackson National Life Ins. Co., 812 F.Supp. 966 (D.Neb. 1993), affirmed, 19 F.3d 431 (8th Cir. 1994). The court must award such expenses unless one of the following four conditions exists:

See, Russo v. Baxter Healthcare Corp., 51 F.Supp. 2d 70, 78 (D.R.I. 1999); Read-Rite Corp. v. Burlington Air Express, Inc., 183 F.R.D. 545, 547 (N.D.Cal. 1998); Mutual Service Ins. Co. v. Frit Industries, Inc., 183 F.3d 1312, 1326 (11 ^th Cir. 2004); Maynard v. Nygen, 332 F.3d 462, 470 (7 ^th Cir. 2003).

Ms. Underwood submits that none of the four conditions prescribed by Rule 37 is available to Continental in this instance.   In light of the testimony of Jim White and Pete Campbell, there can be no doubt that Continental realized, with certainty, that Defendant Fitzgerald was Disqualified on the day he was offered a job by Continental, on the day he was hired by Continental, and on the day this crash occurred, and that Continental came to this realization, with certainty, on the day after this crash, July 20, 2004, or at the very latest, within two weeks of the crash.  Mr. Campbell even admitted that the President of Continental, Mr. Kelley Woolridge, possessed this knowledge within two weeks of the crash. (Campbell Depo. 132) It is also clear that Continental had this knowledge at the time it filed its Answer to Ms. Underwood’s Amended Complaint and further that Continental still had this knowledge at the time Continental Responded to Ms. Underwood’s Requests for Admissions.  

It remains a mystery; however, why Continental chose to deny that Defendant Fitzgerald was Disqualified in its Answer of September 30, 2004 and why it chose again to deny that fact in its Responses to Request to Admit served October 1, 2004.    Ms. Underwood submits that Continental has acted in bad faith in this action in denying allegations that it knew with certainty to be true, and that Continental has thereby caused Ms. Underwood to incur unnecessary attorneys’ fees and expenses in taking depositions in Little Rock, Arkansas in this cause during the months of February through April, 2005.   

In addition, Rule 11 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, --

the denials of factual contentions are warranted on the evidence or, if specially so identified, are reasonably based on a lack of information or belief.

In appropriate circumstances, the Court may sanction attorneys, law firms, or parties.  Union Planters Bank v. L&J Development Co., 115 F.3d 378, 384 (6^th Cir. 1997)    Rule 11(c)(2) authorizes the Court to issue non-monetary orders, to require payment of a penalty into court, to require payment of some or all of an opposing party’s attorneys’ fees and expenses, or any combination thereof. Tropf v. Fidelity National Title Insurance Co., 289 F.3d 929, 940-941 (6 ^th Cir. 2002), cert. denied, 537 U.S. 1118, 123 S.Ct. 887 (2003);  Ortman v. Thomas, 99 F.3d 807, 811 (6 ^th Cir. 1996); Riccard v. Prudential Life Insurance Co. of America, 307 F.3d 1277, 1295 (11 ^th Cir. 2002)

In its Answer filed in this case (Exhibit 4 to the current Motion), Continental specifically denied two (2) allegations that it knew to be true on a central and material issue. First, Continental denied that Defendant Fitzgerald’s Missouri license had been revoked (Amended Complaint, Para. 16; Continental Answer, Para. 16). Second, Continental denied that Defendant Fitzgerald was Disqualified (Amended Complaint, Para. 18; Continental Answer, Para. 18). Those two specific denials are nothing short of false and misleading in light of the testimony of Pete Campbell, Vice President and Risk Manager, who admitted that he knew the allegations denied were actually true at the time Continental filed its Answer.

The Federal Rules of Civil Procedure do not tolerate the type of conduct displayed by Continental in this case and this Court cannot condone such conduct. As a result of Continental’s actions, Ms. Underwood has been forced to incur unnecessary attorneys’ fees and expenses in her efforts to establish the very facts that were denied by Continental in its Answer and Responses to Request to Admit. Ms. Underwood submits that there has never been a genuine issue of material fact with regard to whether Defendant Fitzgerald was “Disqualified” and that Continental can offer no reasonable excuse as to why it denied that fact in its Answer of September 30, 2004 and why it denied that fact again in its Responses to Requests to Admit of October 1, 2004. 

CONCLUSION

Ms. Underwood earnestly submits that this Court should enter Summary Judgment in her favor on the issue of Defendant Fitzgerald’s being “Disqualified” under the Federal Motor Carrier Safety Regulations at the time Continental offered Defendant Fitzgerald a job on or about July 1, 2004, at the time Continental hired Defendant Fitzgerald on or about July 9, 2004, and at the time of the crash on July 19, 2004, and in the wake of entering Summary Judgment, that this Court award Ms. Underwood her reasonable attorneys’ fees and expenses incurred in this matter. 

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been served upon the following individual(s) via the Court’s electronic filing service or via first class mail, postage prepaid, on this the 19th day of July, 2005.

1. Philip N. Elbert, Esq.
   Aubrey B. Harwell, III, Esq.
   Neal & Harwell
   2000 First Union Tower
   150 Fourth Avenue North
   Nashville, Tennessee 37219
   
2. Donald P. Paul, Esq.
   Miller & Martin
   1200 One Nashville Place
   150 Fourth Avenue North
   Nashville, Tennessee 37219-2433
   
3. William Nelson Bates, Esq.
   J. Russell Farrar, Esq.
   Keith F. Blue, Esq.
   Farrar & Bates
   211 Seventh Avenue North
   Suite 420
   Nashville, Tennessee 37219-1823
   
4. Bruce Munson, Esq.
   400 West Capital, Suite 1900
   Little Rock, Arkansas 72201
   
5. R. Clay Porter, Esq.
   Elenore Cotter Klingler, Esq.
   Dennis, Corry, Porter & Smith, LLC
   Piedmont Fourteen
   3535 Piedmont Road, Suite 900
   Atlanta, Georgia 30305

                   s / Larry Hayes, Jr.              
________________________________   

                 Larry Hayes, Jr.                         No.  15481