Opinion Flash

December 27, 2001
Volume 7 — Number 236

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
02 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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

MICHAEL BRUCE HARRIS v. MAGOTTEAUX, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys: 

Joseph W. Henry, Jr., Henry, Henry & Speer, Pulaski, Tennessee, for
the appellant, Magotteaux, Inc.

Rankin P. Bennett, Cookeville, Tennessee, for the appellee, Michael
Bruce Harris

William M. Billips, Ortale, Kelley, Herbert & Crawford, Nashville,
Tennessee, for the appellee, Home Insurance Company and Home Indemnity
Company                         

Judge: GAYDEN

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 appeals the trial court's
calculation of the workers' compensation award of permanent partial
disability benefits using the employee's total medical impairment
rating, as opposed to using only the medical impairment rating arising
from the most recent injury.  In addition, the employer's previous
insurance carrier challenges the trial court's finding that it is
equally liable along with the current insurance carrier for the
employee's most recent injury and the employee's future medical
benefits.  The Panel concludes the award should be modified in part
and reversed in part.  We modify the trial court's judgment, finding
that the employee is entitled to workers' compensation benefits solely
for his most recent injury and award a 12% permanent partial
disability to the body as a whole.  An employee cannot combine a claim
for a new injury with a claim for reconsideration of a pre-existing
workers' compensation award when the employee sustains an additional
injury.  We reverse the trial court's judgment, finding that Home
Insurance Company, the previous insurance carrier, is not liable for
benefits arising from the second injury.

http://www.tba.org/tba_files/TSC_WCP/harrismichaelbruce.wpd

IN RE:  ESTATE OF J. CRAWFORD MURPHY v. ROBERT A. MURPHY, et al.

Court:TCA

Attorneys:

John T. McArthur, and Martha S. L. Black, Maryville, Tennessee, for
the Appellant, Matthew Thompson

Edward H. Hamilton, Sevierville, Tennessee, for the Appellee, Robert
A. Murphy, Executor of the Estate of J. Crawford Murphy                          

Judge: GODDARD

First Paragraph:

In this case the Probate Court held that the personal representative
of the Estate of Mae Thompson Murphy did not have authority to dissent
from the will of her husband, J. Crawford Murphy, and thereby take an
elective share of his Estate.  We find that T.C.A. 31-4-105 gives the
personal representative this right and reverse the judgment of the
Trial Court.

http://www.tba.org/tba_files/TCA/murphyjcra.wpd

DONNA SHARON PRESLEY v. CALVIN HERMAN SHADRICK, et al. In re:  S.A.P.
and S.M.P.

Court:TCA

Attorneys: 

Philip R. Crye, Jr., Clinton, Tennessee, for the Appellant, Donna
Sharon Presley.

Judith R. Whitfield, Oak Ridge, Tennessee, for the Appellees, Calvin
Herman Shadrick and Willie Mae Shadrick.                         

Judge: SWINEY

First Paragraph:

This is a custody and guardianship suit between petitioners, neither
of whom is the biological or adoptive parent of the set of twins
("Children") who are at the center of this dispute.  The parties in
this appeal are, on one side, the Children's maternal great uncle and
his wife, Calvin Herman Shadrick and Willie Mae Shadrick
("Shadricks"), and, on the other side, the children's paternal
grandmother, Donna Sharon Presley ("Presley").  The Trial Court
granted custody and guardianship of the Children to the Shadricks. 
Presley appeals.  We affirm.

http://www.tba.org/tba_files/TCA/presleyds.wpd

YOLANDA SOLOMON v. BRAD HAGER, et al.

Court:TCA

Attorneys: 

Christopher D. Heagerty, Knoxville, Tennessee, for the appellant,
Allstate Insurance Company.

James M. Davis, Morristown, Tennessee, for the appellee, Yolanda
Solomon.                         

Judge: SUSANO

First Paragraph:

This lawsuit finds its genesis in the construction of a residence. 
The plaintiff, Yolanda Solomon, filed suit against Allstate Insurance
Company, alleging breach of contract and seeking damages and a bad
faith penalty for Allstate's failure to pay her claim under a
builder's risk policy covering her under-construction residence. 
Solomon later amended her complaint to seek additional damages under
the Tennessee Consumer Protection Act.  By way of a special verdict,
the jury found (1) that the insurance policy provided coverage for
Solomon's loss; (2) that Allstate had acted in bad faith in denying
her claim; and (3) that Allstate had violated the Consumer Protection
Act.  As modified by the trial court, Allstate was ordered to pay
$101,098, the full amount of the plaintiff's coverage less the
deductible; a 25% bad faith penalty; $1,500 under the Consumer
Protection Act; attorney's fees; discretionary costs; and prejudgment
interest.  Allstate appeals, challenging, among other things, the
jury's finding of coverage, the assessment of the bad faith penalty,
evidentiary and jury instruction rulings, and the amount of damages. 
We affirm.

http://www.tba.org/tba_files/TCA/solomony.wpd

STATE OF TENNESSEE v. EUGENE FLOYD LOCKHART, a/k/a FLOYD E. LOCKHART

Court:TCCA

Attorneys: 

Robert J. Turner, Nashville, Tennessee, for the appellant, Eugene
Floyd Lockhart, a/k/a Floyd E. Lockhart.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Philip H. Wehby, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The defendant appeals the denial of probation for the five-year
sentence he received for sexual battery by an authority figure, a
Class C felony.  He asserts that the record fails to support a
conclusion that the statutory presumption of his eligibility for
alternative sentencing has been rebutted.  We modify the term of
confinement and order supervised probation forthwith and remand the
case to the trial court for imposition of appropriate conditions.

http://www.tba.org/tba_files/TCCA/lockhartef.wpd

TERRY STEPHENS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Jesse N.H. Bacon, Madison, Tennessee (on appeal), and Lionel R.
Barrett, Jr., Nashville, Tennessee (at trial), for the appellant,
Terry Stephens.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The petitioner appeals from the trial court's denial of his petition
for writ of error coram nobis.  In his petition, he alleged that his
conviction should be set aside because the victim had recanted his
testimony.  Following a hearing, the trial court denied relief and the
petitioner appealed.  After a thorough review, we affirm the court's
order of denial.

http://www.tba.org/tba_files/TCCA/stephensterry.wpd

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