June 13, 2000 Volume 6 -- Number 090 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink. This Issue (IN THIS ORDER):   01 New Opinion(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink LARRY W. BARNES v. THE GOODYEAR TIRE AND RUBBER COMPANY CORRECTION Court:TSC Attorneys: Dan M. Norwood, Memphis, Tennessee, for the appellant, Larry W. Barnes Tim K. Garrett and Michael S. Moschel, Nashville, Tennessee and James M. Glascow, Jr., Union City, Tennessee, for the appellee, The Goodyear Tire and Rubber Company Judge: HOLDER First Paragraph: We granted this appeal to address: (1) the appropriate framework for analyzing a handicap discrimination claim under the Tennessee Handicap Discrimination Act; and (2) whether the evidence supported the jury's finding of handicap discrimination. We hold that the record contains material evidence to support the jury's verdict. The Court of Appeals is reversed and the case is remanded to the Court of Appeals for resolution of the issues pretermitted by that court. http://www.tba.org/tba_files/TSC/Barneslw.wpd LEYON ODELL BEACH v. SCHWAN'S SALES ENTERPRISES, INC. and CONTINENTAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: Joseph M. Dalton, Jr. and Catherine S. Hughes, Nashville, Tennessee, for the appellant, Leyon Odell Beach.. Terry L. Hill, Manier & Herod, Nashville, Tennessee, for the appellees, Schwan's Enterprises, etc. et al . Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. In this case, the plaintiff contends the trial judge erred in finding that he was not a covered employee under the Workers' Compensation Act. As discussed herein, the panel has concluded the claimant was a gratuitous worker and that the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/beachleyonodell.wpd LINDA HARRIS v. AMERICAN BREAD COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: William L. Abernathy, Jr. John Grissim, Jr. Leitner, Williams, Dooley, & Napolitan, PLLC Mitch Grissim & Associates Nashville, Tennessee Nashville, Tennessee Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/harrislinda.wpd ZURICH-AMERICAN INSURANCE COMPANY v. CLAUDIA MOSLEY KENT, ET AL. Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SEAN ANTONE HUNT, Esquire E. BLAINE SPROUSE, Esquire 424 Church Street, Suite 1350 Assistant Attorney General Nashville, Tennessee 37219-2305 Office of the Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0499 JOSEPH K. DUGHMAN, Esquire 315 Deaderick Street 2075 First American Center Nashville, Tennessee 37238-2075 STEVEN D. PARMAN, Esquire Suite 300, 214 Second Avenue North Nashville, Tennessee 37201-1638 Judge: MCCOY First Paragraph: This workers' compensation appeal has been referred to the Special Workers Compensation Appeals Panel of the Supreme Court pursuant to T.C.A. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The workers compensation carrier, Zurich American Insurance Company (Zurich), has appealed from the trial court's finding that the employee, Claudia Kent (Kent), had sustained a compensable work related injury during the effective dates of Zurich's policy. The employer, Nord Associates (Nord), has appealed the trial court's finding that Zurich was not required to pay Nord's costs of defense and discretionary costs. http://www.tba.org/tba_files/TSC_WCP/zurichamcan.wpd WILLIAM C. BRAKE v. ANDRA L. BRAKE Court:TCA Attorneys: Robert Todd Jackson, JACKSON LAW OFFICE, Nashville, for Appellant Sandra Jones, Nashville, for Appellee Judge: HIGHERS First Paragraph: The present appeal arises from an order of the Robertson County Circuit Court. The order is a result of a Rule 60.02 Motion, which was filed for the benefit of the United States Bankruptcy Court, seeking to clarify the Final Decree of Divorce between the parties. http://www.tba.org/tba_files/TCA/brakewilliam.wpd REV. CURLEY HOWSE v. MICKEY JOHNSON, et al Court:TCA Attorneys: Rev. Curley Howse, Only, TN, pro se Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Rae Oliver, Assistant Attorney General, Nashville, for Appellees, Mickey Johnson, et al Judge: HIGHERS First Paragraph: This appeal arises from an action brought by Plaintiff-Howse ("Prisoner Howse") against Defendant- Johnson and the Tennessee Department of Correction (hereinafter collectively referred to as "Defendants") for various violations of his civil rights. Defendants' motions for dismissal and summary judgement were granted by the trial court. Howse appeals both the dismissal of his case and the subsequent grant of summary judgment in favor of Defendants. http://www.tba.org/tba_files/TCA/howsecurley.wpd LEE WAREHOUSE LIMITED PARTNERSHIP by WAREHOUSES INC., v. JEPCO CONSTRUCTION CO., A Sole Proprietorship, and JOSEPH E. PROCTOR, its Owner Court:TCA Attorneys: William G. Colvin and Jane M. Stahl, Shumacker & Thompson, P.C., Chattanooga, Tennessee, for Plaintiff-Appellant. Hugh P. Garner, Garner, Lewis & Prickett, Chattanooga, Tennessee, for Defendants Counter- Plaintiffs-Appellees. Judge: FRANKS First Paragraph: The action to void a contract under T.C.A. S62-6-103 was dismissed by the Trial Court on the ground that the dispute between the parties had been arbitrated thereby waiving the right to maintain the action. On appeal, we affirm the Trial Court. http://www.tba.org/tba_files/TCA/leewarehse.wpd REBOUND CARE CORPORATION, et al. v. UNIVERSAL CONSTRUCTORS, INC. Court:TCA Attorneys: Paul C. Ney, Jr., Gregory Mitchell, Nashville, For Appellant Darrell G. Townsend, Derrick C. Smith, Nashville, For Appellee Judge: CRAWFORD First Paragraph: This case involves a dispute under a construction contract between the owner and the contractor. The owner sued the contractor in chancery court, and the contractor's answer, among other things, asserted that plaintiff's claim was subject to arbitration. Neither party demanded arbitration, and the case continued in chancery court with discovery and other proceedings for approximately three years, when the contractor filed a motion to dismiss or for summary judgment premised on the owner's failure to comply with conditions precedent in the contract. Alternatively, the contractor moved to stay the proceedings until plaintiff submitted the claim to arbitration pursuant to the contract. http://www.tba.org/tba_files/TCA/REBOUNd.wpd U.S. FIDELITY & GUARANTY v. WACO CONTRACTORS, INC. Court:TCA Attorneys: Clifford E. Wilson, Madisonville, Tennessee, for the appellant, Waco Contractors, Inc. John E. Buffaloe, Jr., Nashville, Tennessee, for the appellee, U.S. Fidelity & Guaranty. Judge: SWINEY First Paragraph: An employer indicated in an application for workers' compensation insurance its intent to exclude particular corporate officer employees from coverage under the policy. The insurance company first assessed premium payments based upon exclusion of the listed employees. A later audit by the insurance company resulted in back-assessment of premiums for coverage of the employees indicated as excluded in the policy application. Notice by the insurance company to the local insurance agency of the statutory procedures necessary to effect exemption of the corporate officer employees was insufficient notice to the employer in the contract dispute between the employer and the insurance company. http://www.tba.org/tba_files/TCA/usfidelity.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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