Opinion Flash

October 11, 2002
Volume 8 — Number 180

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
01 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
06 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


LARRY DEAN SEAL v. CHARLES BLALOCK & SONS, INC., et al.

Court:TSC

Attorneys:

David M. Sanders, Knoxville, Tennessee, for the appellant, Travelers
Insurance Company.

James M. Davis, Morristown, Tennessee, for the appellee, Larry Dean
Seal.

Judge: BIRCH

First Paragraph:

In this workers' compensation case, we are asked to determine whether
the trial court erred in awarding benefits for a 93% vocational
disability to the body as a whole.  The employer contends that
compensation should be limited to an award for loss of a scheduled
member.  After reviewing the record and applicable authority, we
conclude that the evidence preponderates against the trial court's
award of benefits for disability to the body as a whole; accordingly,
we modify the judgment of the trial court to provide for an award of
100% disability to the leg.  Additionally, we find no error in the
trial court's admission of the physical therapist's testimony.

http://www.tba.org/tba_files/TSC/seall.wpd

SYDNEY COUCH v. BELL SOUTH TELECOMMUNICATIONS, INC., etc.

Court:TSC - Workers Comp Panel

Attorneys: 

Steve Taylor, Memphis, Tennessee, for the appellant, Sydney Couch

J. Mark Griffee and Robert B. C. Hale, Memphis, Tennessee, for the
appellee, Bell South Telecommunications, Inc., d/b/a South Central
Bell

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 employee questions the trial court's disallowance of
benefits.  As discussed below, the panel has concluded the evidence
fails to preponderate against the findings of the trial court.

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

JOSEPH CHAD MEADORS v. SONYA DANIELLE (MEADORS) SHRUM

Court:TCA

Attorneys: 

Andy L. Allman, Hendersonville, Tennessee, for the appellant, Sonya
Danielle (Meadors) Shrum.  

John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Joseph
Chad Meadors.

Judge: LILLARD

First Paragraph:

This case involves a petition to modify visitation.  The mother and
father were divorced in January 1999.  By agreement, the mother was
granted custody of the parties' minor child, and the father was given
visitation.  The divorce decree provided that the father's visitation
schedule would change from week to week depending on father's
fluctuating work schedule in his job as an emergency medical
technician.  This schedule necessitated repeated negotiating between
the mother and the father to agree on the father's visitation
schedule.  In April 2001, the father petitioned the court for
"standard" every-other-weekend visitation, without regard to his work
schedule, in order to end the parties' pattern of negotiating and
bickering.  The trial court determined that the parties were unable to
work together amicably, and ordered "standard" every-other-weekend
visitation in order to minimize the interaction between the parties. 
The mother now appeals.  We affirm, finding that the parties'
inability to implement amicably the ordered visitation arrangement
constituted a sufficient change in circumstances to warrant the slight
modification in visitation.

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

RONALD G. MOORE v. AVERITT EXPRESS, INC., et al.

Court:TCA

Attorneys:  

Clint W. Watkins, Brentwood, Tennessee, for the appellant, Ronald G.
Moore.

C. Eric Stevens and James P. Daniel, Nashville, Tennessee, for the
appellees, Averitt Express, Inc. and Averitt Air Charter, Inc.                        

Judge: FARMER

First Paragraph:

Plaintiff was a former state employee and newly hired employee of
Averitt when he was terminated by Averitt due to statements he made
alleging illegal conduct of state officials.  Plaintiff made the
statements to the press prior to being hired by Averitt.  Plaintiff
filed suit alleging statutory and common law retaliatory discharge. 
The trial court dismissed the action.  We affirm.

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

MARGARET PARKER v. THE KROGER COMPANY

Court:TCA

Attorneys:  

Marshall L. Gerber, Memphis, For Appellant, Margaret Parker

Minton P. Mayer, Memphis, For Appellee, The Kroger Company                        

Judge: CRAWFORD

First Paragraph:

The Circuit Court, Shelby County, granted summary judgment for
Defendant in a slip and fall case.  The Court of Appeals reversed and
remanded the case.  The Supreme Court granted appeal and remanded the
case by Order dated September 23, 2002 to the Court of Appeals for the
sole purpose of determining the applicability, if any, of the Texas
Supreme Court opinion in Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812
(Tex. 2002).  On remand, the Court of Appeals withdrew the Court's
previously filed opinion and affirms the Trial Court's grant of
summary judgment.

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

RIVER PARK HOSPITAL, INC. v. BLUECROSS BLUESHIELD OF TENNESSEE, INC.,
and VOLUNTEER STATE HEALTH PLAN, INC., d/b/a BLUECARE

Court:TCA

Attorneys:  

Gary C. Shockley and Brigid M. Carpenter, Nashville, Tennessee, for
the appellants, BlueCross BlueShield of Tennessee, Inc., and Volunteer
State Health Plan, Inc., d/b/a/ BlueCare.

Steven A. Riley and Taylor A. Cates, Nashville, Tennessee, for the
appellee, River Park Hospital, Inc.

Judge: LILLARD

First Paragraph:

This case involves a dispute over rates paid to a TennCare health care
provider.  The plaintiff hospital had been a participating provider
for the defendant TennCare managed care organization ("MCO") for
several years, being paid an agreed contractual rate for services
provided to the MCO's enrollees.  When the parties' contract expired,
it was not renewed.  After expiration of the contract, the hospital
continued to provide emergency services to the MCO's enrollees, as it
was required to do under federal law.  For those emergency services,
the hospital billed the MCO at its full, standard rates.  The MCO
refused to pay the hospital's standard rates, and instead paid the
hospital the same rate it had paid under the parties' expired
contract.  This was the same rate the MCO paid hospitals that were
participating providers.  The hospital filed this lawsuit against the
MCO, seeking to recover its full, standard rates for the emergency
services provided to the MCO's enrollees after expiration of the
parties' contract.  After hearing proof on liability, but not damages,
the trial court initially denied recovery on all grounds. The hospital
moved for reconsideration and to reopen the proof.  The trial court
granted the motion and ultimately determined that the MCO had been
unjustly enriched by the hospital's provision of services to its
enrollees.  Both parties appealed.  We affirm, finding a contract
implied in law, and remand to the trial court to determine a
reasonable rate for services provided by the hospital and, based on
this, for a determination of damages.

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

UROLOGY ASSOCIATES, P.C. v. CIGNA HEALTHCARE OF TENNESSEE, INC., f/k/a
CIGNA HEALTHPLAN OF TENNESSEE, INC.

Court:TCA

Attorneys:   

Gary C. Shockley and Brigid M. Carpenter, Nashville, Tennessee; Brian
Boyle and Matthew L. Olmstead, Washington, D.C., for the appellant,
CIGNA HealthCare of Tennessee, Inc., f/k/a CIGNA Healthplan of
Tennessee, Inc.

Steven A. Riley, Amy J. Everhart, and Amy C. Kurzweg, Nashville
Tennessee, for the appellee, Urology Associates, P.C.

Judge: LILLARD

First Paragraph:

This case involves the interpretation of an arbitration agreement. 
The plaintiff physicians' group provided medical services to
individuals who were insured by the defendant insurance company. 
Disputes arose regarding the insurance company's payment to the
physicians' group for those medical services.  Consequently, the
physicians' group filed this lawsuit against the insurance company. 
Pursuant to the parties' contract, the insurance company moved to
dismiss or to stay the proceedings and to compel arbitration.  The
contract contained a dispute resolution provision which  stated, in
part, that disputes arising between the parties "shall be submitted
either to a dispute resolution entity, or to a single arbitrator
selected by the American Arbitration Association, as the parties shall
agree."  The trial court denied the insurance company's motion to
compel arbitration, determining that the dispute resolution provision
"neither explicitly nor clearly" required the parties to arbitrate,
and that the provision was "too vague, imprecise and impractical" to
be enforced.  The insurance company now appeals.  We reverse,
concluding that the provision at issue requires the parties to submit
their disputes to a third party for binding resolution and, thus,
constitutes a valid, enforceable agreement to arbitrate.

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

TENNESSEE DEPARTMENT OF TRANSPORTATION v. JOHN H. WHEELER, SR., et al.

Court:TCA

Attorneys:   

Paul G. Summers, Attorney General and Reporter, and William E. James,
Senior Counsel, Chattanooga, Tennessee, for the appellant, Tennessee
Department of Transportation.

L. Thomas Austin, Dunlap, Tennessee, for the appellees, John H.
Wheeler, Sr., Nona C. Wheeler, Sally F. Wheeler, Nicholas L. Wheeler,
Janna L. Wheeler Robbs, Jack M. Wheeler, Cindy A. Wheeler, Thurman
Davis, Elise Davis, Thurston Davis, and Aline Davis.                       

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a farmer and the Department of
Transportation arising from the Department's condemnation of a portion
of his farm for a new highway and bridge.  The parties agreed on the
fair market value of the property taken but disagreed on the amount of
incidental damages to the remaining property.  Following a trial in
the Circuit Court for Sequatchie County, a jury awarded the farm owner
$200,000 in incidental damages.  The Department asserts on this appeal
(1) that there is no evidence that the remaining property suffered
incidental damages, (2) that the trial court erred by permitting an
unlicensed real estate appraiser to offer an expert opinion regarding
the value of the remaining property, and (3) that the evidence does
not support the jury's damage award.  While we have determined that
the trial court erred by admitting the opinion testimony of the
unlicensed appraiser, we have determined that this error did not
affect the judgment and that the evidence supports the jury's decision
regarding the existence and amount of incidental damages.

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

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Court:TCCA

On August 23, 2002, the defendant filed a petition to rehear claiming
that the opinion of this court fails to consider material facts,
contains misstatements of fact, and overlooks or misapprehends case
law.  We disagree.

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

STATE OF TENNESSEE v. RUFUS E. NEELEY

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal) and Stephen M.
Wallace, District Public Defender; and Terry L. Jordan, Assistant
Public Defender, Blountville, Tennessee (at trial) for the appellant,
Rufus E. Neeley.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant,  Rufus  E.  Neeley,  was  convicted  of  the  following 
offenses  following  a  jury  trial: (1) unlawful possession of a
prohibited weapon, to wit: a short-barreled shotgun, a Class E felony;
(2) possession of a knife with a blade length exceeding four inches
with intent to go armed, a Class C misdemeanor; (3) driving on a
revoked driver's license, a Class B misdemeanor; and (4) operating a
motor vehicle while possessing an open container of beer, a Class C
misdemeanor. Defendant was sentenced to serve three years and six
months as a Range II multiple offender for the felony offense, thirty
days for each Class C misdemeanor, and six months for the Class B
misdemeanor.  All sentences were ordered to be served concurrently
with each other.  He was ordered to serve the felony sentence in the
Department of Correction.  Defendant has appealed, challenging the
sufficiency of the evidence to support the convictions for unlawful
possession of a prohibited weapon and possession of a knife with
intent to go armed, and argues that he should have been sentenced to
split-confinement rather than total incarceration.  We affirm the
judgments of the trial court.

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

City Judge's Authority to Perform Marriage

Date: October 10, 2002

Opinion Number:  02-112                        

http://www.tba.org/tba_files/AG/2002/OP112.pdf

Constable fee for delivery of garnishment to bank garnishee

Date: October 10, 2002

Opinion Number: 02-113                         

http://www.tba.org/tba_files/AG/2002/OP113.pdf

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