Opinion FlashOctober 11, 2002Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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