TBALink Opinion-Flash

September 4, 1997 -- Volume #3 -- Number #082

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
05-New Opinons From TSC-Workers Comp Panel
03-New Opinons From TCA
01-New Opinons From TCCA

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George Dean
TBALink Chief Editor


CARL E. CHURCH
vs.
MONSANTO COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:

Patrick A. Ruth                     Sonya W. Henderson
Julia J. Tate                       218 W. Main St., Ste. 1
150 Second Ave. N., Ste. 201        Murfreesboro, TN  37130
Nashville, TN  37201                         

Judge: BYERS

First Paragraph:

This case was heard on March 15, 1996.  The plaintiff alleged that he
sustained work injuries on October 29, 1986 (pulmonary injury),
January 21, 1986 (carpal tunnel syndrome), and January 6, 1986 (back
injury).  The trial court found the plaintiff's injuries were
compensable and awarded the plaintiff permanent total disability plus
medical costs. AFFIRMED AS MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/CHURCHCE_OPN.WP6
Opinion-Flash

STELLA LOUISE FLATT
vs.
OSHKOSH B'GOSH, INC. and 
TRAVELERS INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

FOR THE APPELLANTS:                   FOR THE APPELLEE:

ROBERT R. RAMSEY                      DONALD G. DICKERSON   
UPCHURCH, COLVARD, YORK & RAMSEY      310D East Broad Street    
P. O. Box 3549                        Cookeville, TN 38501      
Crossville, TN 38557-3549                           

Judge: RUSSELL

First Paragraph:

The plaintiff suffered bilateral carpal tunnel syndrome as the result
of working for years at a sewing job for the defendant employer.  The
trial judge held that she should recover compensation for permanent
partial vocational disability in the amount of 80% to each arm. The
only issue presented upon this appeal is whether or not the percentage
of disability awarded is appropriate under the evidence. AFFIRMED AS
MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/FLATTSL_OPN.WP6
Opinion-Flash

CAMILLE GAINES
vs.  
AMERICAN AIRLINES, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                      For Appellee:

Jonathan Cole                       William B. Jakes, III                           
Baker, Donelson, Bearman            Howell & Fisher
 & Caldwell                         Nashville, Tennessee
Nashville, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employer contends (1) the trial court erred in
calculating the claimant's average weekly wage, (2) the trial court
erred in awarding permanent partial disability benefits in excess of
two and one-half times her medical impairment rating and (3) the trial
court erred in awarding benefits for hypertension.  The employee
contends (4) the trial court erred in allowing the employer credit for
certain temporary total disability benefits and (5) the appeal is
frivolous.  As discussed below, the panel has concluded the judgment
should be modified as to the claimant's average weekly wage, but
otherwise affirmed.

URL:http://www.tba.org/tba_files/TSC_WCP/GAINESC_OPN.WP6
Opinion-Flash

VERNON SCOTT GOAD
vs.    
CNA INSURANCE COMPANY,  
GENERAL SHALE PRODUCTS  
CORPORATION and LARRY  
BRINTON, JR., Director of Workers' 
Compensation, Tennessee Department of Labor

Court:TSC - Workers Comp Panel

Attorneys:   

For Appellant, CNA:                     For Appellee:

Robert D Van de Vuurst                  Mark A. Skelton
Steven H. Trent                         Rogersville, Tennessee
Baker, Donelson, Bearman & Caldwell
Johnson City, Tennessee                       

Judge: Loser

First Paragraph:

In this appeal, the employer insists the award of permanent partial
disability benefits is excessive; and the claimant or employee insists
the award of permanent partial disability benefits is inadequate, the
trial court erred in finding part of the claimant's claim to be time
barred, the appeal should be dismissed for failure to file part of the
transcript, and the appeal is frivolous.  As discussed below, the
panel has concluded the trial court's judgment that the claim for
disability benefits resulting from a 1989 injury is time barred should
be affirmed, and that the award of permanent disability benefits from
a 1992 injury should be reversed and dismissed. AFFIRMED IN PART
REVERSED IN PART DISMISSED.

URL:http://www.tba.org/tba_files/TSC_WCP/GOADCNA_OPN.WP6
Opinion-Flash

JOAN MARIE GRIFFIN
vs.
NATIONAL MEDICAL HOSPITAL OF
TULLAHOMA, INC., with an assumed 
name of HARTON REGIONAL
MEDICAL CENTER

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                      For the Appellee:

Vanessa A. Jackson                      Russell D. Hedges
Ray, Van Cleave & Jackson, P.C.         Moore & Hedges
P. O. Box 1027                          105 N. Atlantic St.
Tullahoma, TN 37388                     P.O. Box 1810
                                        Tullahoma, TN 37388                        

Judge: INMAN

First Paragraph:

The plaintiff is 29 years old, married, and has a young child.  She 
is learning disabled on account of a stroke when she was only four
months old; she was born with congenital heart disease, and developed
a pronounced scoliosis at age 12 which required the surgical
implantation of rods in her back.  Notwithstanding, she has held
several jobs: attendant at a day care center, counter clerk at a
fast-food eatery, sales clerk and cashier at a J.C. Penney store.
AFFIRMED as MODIFIED.

URL:http://www.tba.org/tba_files/TSC_WCP/GRIFFINJ_OPN.WP6
Opinion-Flash

MYRTLE MAE DALY BROWN, et al
vs.
NORMA JEAN BELTON DALY

Court:TCA

Attorneys: 

Carl I. Jacobson,
Gregory P. Aubuchon,
WYATT, TARRANT & COMBS, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

Joe M. Duncan,
R. Porter Feild,
BURCH, PORTER & JOHNSON, Memphis, Tennessee
Attorney for Defendant/Appellee.                        

Judge: FARMER

First Paragraph:

This appeal concerns a suit for partition and sale of real property. 
In June 1989, Myrtle Mae Daly Brown, Willie Myrle Daly Cruse, Mary
Elizabeth Daly Wolfe and T. J. Ward filed suit against Norma Jean
Belton Daly, Appellee, claiming that they each own an undivided
one-fifth interest in property, identified as 700 Reed Hooker Road, as
the children and surviving heirs of Earl J. Daly (hereinafter
"Father") who died on August 7, 1966.  They further asserted that
Appellee is the rightful owner of the remaining one-fifth interest as
the widow and will beneficiary of Earl W. Daly (hereinafter "Son"),
their brother, who died in August 1988.  Appellee filed a
counter-claim contending that Son solely owned the property at the
time of his death and that as the land passed to her under the terms
of his will, she is the lawful owner in fee simple.  Appellee asserted
that Son acquired the entire property either by prescription or by
transfer of equitable title from Father to Son based on a contract to
purchase.  Appellee also relied upon the defense of laches. REVERSED
AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/BROWNMM_OPN.WP6
Opinion-Flash

ROLAND HAYES
vs.
JOHN DOE and SHELTER
INSURANCE COMPANY

Court:TCA

Attorneys: 

RITA L. STOTTS
Memphis, Tennessee
Attorney for Appellant

JAMES E. CONLEY, JR.
THOMASON, HENDRIX, HARVEY, 
JOHNSON & MITCHELL
Attorney for Appellee, Shelter Insurance Company                         

Judge: HIGHERS

First Paragraph:

In this automobile accident case, Roland Hayes ("Plaintiff") filed
suit against John Doe ("Doe") for damages sustained when Plaintiff was
forced to drive off the road into a tree in order to avoid a head-on
collision with Doe's vehicle.  Plaintiff filed a second suit against
Shelter Insurance Company ("Defendant") for Defendant's alleged bad
faith failure to pay Plaintiff's uninsured motorist claim under the
insurance contract existing between Plaintiff and Defendant.  The
trial court later consolidated Plaintiff's negligence suit against Doe
with Plaintiff's bad faith suit against the Defendant.  After the
parties stipulated that the Defendant paid Plaintiff $11,262.89 prior
to trial and after the jury returned a verdict of $2,337 in favor of
Plaintiff on Plaintiff's negligence claim against Doe, the trial court
held that Plaintiff should recover nothing from the Defendant in
accordance with the jury's verdict.  Plaintiff appeals the judgment of
the trial court arguing that the trial court erred in consolidating
Plaintiff's negligence action against Doe with Plaintiff's bad faith
action against the Defendant and in refusing to grant Plaintiff an
additur or a new trial.  For the reasons stated hereafter, we affirm
the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/HAYESR_OPN.WP6
Opinion-Flash

METRO CONSTRUCTION CO., INC.
vs.
COGUN INDUSTRIES, INC.

Court:TCA

Attorneys: 

RITA L. STOTTS
Memphis, Tennessee
Attorney for Appellant

JAMES E. CONLEY, JR.
THOMASON, HENDRIX, HARVEY, 
JOHNSON & MITCHELL
Attorney for Appellee, Shelter Insurance Company                         

Judge: HIGHERS

First Paragraph:

In this breach of contract case, Metro Construction Company, Inc.
("Plaintiff") filed suit against Cogun Industries, Inc. ("Defendant")
for Defendant's alleged failure to pay Plaintiff under the terms of
the contract between Plaintiff and Defendant.  The trial court granted
summary judgment in favor of Plaintiff and denied Defendant's motion
to dismiss or, alternatively, to stay proceedings pending arbitration.
 Defendant appeals the judgment of the trial court arguing that the
trial court erred in granting summary judgment in favor of Plaintiff
and in not directing the case to arbitration pursuant to the
arbitration clause in the contract.  For the reasons stated hereafter,
we reverse the judgment of the trial court which granted summary
judgment in favor of Plaintiff, remand for entry of a stay order and
direct this case to arbitration.

URL:http://www.tba.org/tba_files/TCA/METROCON_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JOHN HOWARD POPE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

TERRY A. FANN                   JOHN KNOX WALKUP 
WALDRON AND FANN                Attorney General & Reporter
202 West Main Street
Murfreesboro, TN  37130         LISA A. NAYLOR
                                Assistant Attorney General
                                425 Fifth Avenue North 
                                2nd Floor, Cordell Hull Building
                                Nashville, TN  37243

                                WILLIAM WHITESELL 
                                District Attorney General

                                DALE ROBERTSON 
                                Assistant District Attorney General
                        
                                JOHN PRICE 
                                Assistant District Attorney General
                                303 Rutherford County Judicial Bldg.
                                Murfreesboro, TN  37130                        

Judge: WOODALL

First Paragraph:

The Defendant, John Howard Pope, was convicted of DUI, 1st Offense,
following a bench trial in the Circuit Court of Rutherford County.  He
appeals as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  In addition to challenging the sufficiency of
the evidence to support the conviction, Defendant argues that the
trial court erred by denying his Motion to Suppress all evidence
obtained as a result of the investigatory stop of him immediately
preceding his arrest for DUI.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCCA/POPEJH_OPN.WP6

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