May 8, 2001 Volume 7 — Number 084 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):   00 New Opinion(s) from the Tennessee Supreme Court 08 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Court of Appeals 01 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 DANNY BELL v. EMERSON ELECTRIC COMPANY Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips, Jackson, Tennessee, for the appellant Emerson Electric Company. Robert B. Vandiver, Jackson, Tennessee, for the appellee, Danny Bell. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained a seven and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his left shoulder. The defendant says the evidence does not support the finding. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/belldan.wpd FREIDA BOYLE v. THE PROCTER & GAMBLE MANUFACTURING COMPANY Court:TSC - Workers Comp Panel Attorneys: Edwin E. Wallis, Jr. and Beth H. DuPree, Jackson, Tennessee, for the Appellant, Proctor & Gamble Manufacturing Company. David Hardee, Jackson, Tennessee, for the Appellee, Freida Boyle Judge: MCGINLEY 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 of findings of fact and conclusions of law. The employer contends the trial court erred in determining that the employee's injury was causally connected to her employment and that the employee complied with statutory notice provision pursuant to Tenn. Code Ann. S 550-6-201. It also contends that the award of 40% permanent partial disability to the body was excessive. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/boylef.wpd BOBBIE HICKS v. WAUSAU INSURANCE COMPANIES, et al. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, Second Injury Fund. George E. Morrison, III, Jackson, Tennessee, and Mary Dee Allen, Cookeville, Tennessee, for the appellee, Bobbie Hicks. R. Dale Thomas and Michael L. Mansfield, Jackson, Tennessee, for the appellee, Wausau Insurance Companies. Judge: LOSER 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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, the Second Injury Fund insists (1) the evidence preponderates against the trial court's finding that the employee suffered a compensable injury on January 14, 1997, (2) the trial court erred in admitting into evidence the testimony by deposition of a vocational expert and (3) the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/hicksbobbie.wpd DONALD L. HUGHES v. MEMPHIS LIGHT, GAS & WATER, et al. Court:TSC - Workers Comp Panel Attorneys: Robert L. J. Spence and Michelle L. Betserai, Memphis, Tennessee, for the appellant, Memphis Light, Gas & Water. Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund. R. Sadler Bailey and Andrew C. Clarke, Bailey & Clarke, Memphis, Tennessee, for the appellee and cross-appellant, Donald L. Hughes. Judge: LOSER 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 to the Supreme Court of findings of fact and conclusions of law. The employer insists (1) the trial court erred in finding a causal connection between the injury and the employment and (2) the trial court violated Tenn. R. Civ. P. 52.02 by filing findings of fact and conclusions of law after entry of final judgment. The Second Injury Fund insists the award of permanent partial disability benefits based on 85 percent to the body as a whole is excessive. The employee insists that the Second Injury Fund lacks standing in this tribunal because it did not file a notice of appeal, that the award is inadequate and that the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/hughesdonald.wpd LETA JOHNSON v. HENRY I. SIEGEL CO., INC., et al. Court:TSC - Workers Comp Panel Attorneys: Terry J. Leonard, Camden, Tennessee, for the appellant, Leta Johnson. Stephen D. Jackson, Huntingdon, Tennessee, for the appellees, Henry I. Siegel Co., Inc. and Royal Insurance Co. Judge: CHILDERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(1999) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant presents the following issues for review: Whether the evidence preponderates against the trial court's determination of permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/johnsonleta.wpd VIKI PARKER v. WAUSAU INSURANCE COMPANIES. Court:TSC - Workers Comp Panel Attorneys: R. Dale Thomas and Michael L. Mansfield, Jackson, Tennessee, for the appellant, Wausau Insurance Companies. T. J. Emison, Jr., Alamo, Tennessee, for the appellee, Viki Parker. Judge: LAFFERTY 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 a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. After a detailed analysis of the evidence in the trial record, the trial court found the plaintiff sustained a 45 percent permanent partial disability to the right and left arms. However, the trial court denied the request for a lump sum. The defendant, Wausau Insurance Companies, appeals and presents one issue for appellate review: Whether the trial court's award of 45 percent permanent partial disability to each of the plaintiff's arms is excessive and not supported by a preponderance of the evidence? From our review of the entire record, the judgment of the trial court is affirmed for the reasons set forth below. http://www.tba.org/tba_files/TSC_WCP/parkerv.wpd ALLEN SERATT v. NEO PRODUCTS CORPORATION, et al. Court:TSC - Workers Comp Panel Attorneys: Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Neo Products Corporation and State Auto Ins. Co. David Hardee, Jackson, Tennessee, for the appellee, Allen Seratt. Judge: BELL 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 to the Supreme Court of findings of fact and conclusions of law. The defendants Neo Products Corporation and State Auto Insurance Company appeal the judgment of the Chancery Court of Chester County awarding plaintiff permanent partial disability of ten (10%) percent to the body as a whole. For the reasons stated in the opinion we affirm the judgment. http://www.tba.org/tba_files/TSC_WCP/serattal.wpd MURIEL C. WARREN v. HENRY I. SIEGEL CO., INC., et al. Court:TSC - Workers Comp Panel Attorneys: Stephen D. Jackson, Huntingdon, Tennessee, for the Appellants, Henry I. Siegel, et al. Charles L. Hicks, Camden, Tennessee, for the Appellee, Muriel C. Warren. Judge: LAFFERTY 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)(2000) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer has appealed two issues from the trial court: (1) Whether the ten percent (10%) of the anatomical rating provided by Plaintiff's evaluating physician should have been assigned to Plaintiff's thumbs rather than to the arms; and (2) Whether the preponderance of the evidence supports the trial court's award of ninety percent (90%) permanent partial disability to the right arm and fifty percent (50%) permanent partial disability to the left arm. From our review of the record, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/warrenmc.wpd LINDA KAY LOVELL GAGE v. RILEY GAGE, JR. Court:TCA Attorneys: Harold R. Gunn, Humboldt, Tennessee, for the appellant, Riley Gage, Jr. Jere B. Albright, Humboldt, Tennessee, for the appellee, Linda Kay Lovell Gage. Judge: LILLARD First Paragraph: This is a divorce case. The wife filed for divorce approximately fourteen months after she moved out of the marital home. The husband filed an answer and counter-complaint for divorce. The trial court granted the divorce to the wife and awarded her half of the value of the husband's pension and alimony in futuro. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/gagelk.wpd DANA HOPE DAVIS THURMON (SCOTT), INDIVIDUALLY AND AS SURVIVING NATURAL PARENT OF DALTON THURMON, A MINOR , et al. v. EDWARD SELLERS, et al. Court:TCA Attorneys: Tim Edwards and James F. Horner, Memphis, Tennessee, for the Appellant, Dana Hope Davis Thurmon Scott. Charles Abbott, Memphis, Tennessee, for the Appellants, Shane Thurmon and Tiffany Thurmon. Mark Ledbetter, Memphis, Tennessee, for the Appellant, Carl J. Fuhs. Robert L. Moore and John H. Dotson, Memphis, Tennessee, for the Appellees, Edward D. Sellers and Donald Sellers. Judge: FARMER First Paragraph: This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident. The driver of the car was an "on call" employee of his father's business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son. Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed. http://www.tba.org/tba_files/TCA/thurmondana.wpd STATE OF TENNESSEE v. MICHAEL A. MILLER Court:TCCA Attorneys: John B. Nisbet, III; David N. Brady, District Public Defender; and Cynthia Lyons, Assistant District Public Defender, Cookeville, Tennessee (on appeal) and Anthony Turner, Crossville, Tennessee (at trial) for the appellant, Michael A. Miller. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery of a seven-year-old boy. Following the trial court's denial of his motion for a new trial, the defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial, based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/millerma.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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