Opinion Flash

June 28, 2004
Volume 10 — Number 123

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

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


LARRY EUGENE BENTON v. THE VANDERBILT UNIVERSITY
WITH DISSENTING OPINION

Court:TSC

Attorneys:                          

Earle J. Schwarz and Ashlee B. Ellis, Memphis, Tennessee, and Phillip
L. Davidson, Nashville, Tennessee, for the Appellant, Larry Eugene
Benton.

Robert J. Walker, John S. Bryant, and Clisby Hall Barrow, Nashville,
Tennessee, for the Appellee, The Vanderbilt University.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether a third-party beneficiary
who seeks to enforce a contract between a hospital and an insurance
carrier may be bound by an arbitration provision in the contract.  The
trial court denied the hospital's motion to compel arbitration,
finding that the third- party beneficiary was not a party to the
contract between the hospital and the insurance carrier.  The Court of
Appeals reversed, concluding that the arbitration provision could be
enforced against the third- party beneficiary in this case.  After
reviewing the record and authority, we conclude that an arbitration
provision in a contract is enforceable against a third-party
beneficiary who has filed a cause of action seeking to enforce the
contract.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/bentonle_dis.wpd

JAMES GALLOWAY v. LIBERTY MUTUAL INSURANCE COMPANY

Court:TSC

Attorneys:                          

Jeffrey P. Boyd, Jackson, Tennessee, for the Appellant, James
Galloway.

Catherine B. Clayton, Jackson, Tennessee, for the Appellee, Liberty
Mutual Insurance Company.

Judge: ANDERSON

First Paragraph:

We granted review in this workers' compensation appeal to determine
whether an employee who was less than age 60 on the date of injury,
but who reached maximum medical improvement and permanent total
disability status after age 60, is entitled to a minimum of 260 weeks
of benefits under Tennessee Code Annotated section 50-6-207(4)(A)(i)
(Supp. 2003).  The Chancellor determined that because the employee was
less than 60 years of age when the injury occurred, he was entitled to
permanent total disability benefits for only 232 weeks until he was
eligible for full benefits under the Social Security Act.  The
employee's appeal was transferred  to the full Supreme Court prior to
the Special Workers' Compensation Appeals Panel hearing argument and
issuing its decision.  After reviewing the record and applicable
authority, we conclude that the Chancellor properly construed the
statute in awarding the employee 232 weeks of permanent total
disability benefits pursuant to Tennessee Code Annotated section
50-6-207(4)(A)(i).  We therefore affirm the Chancellor's judgment.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0628.wpd

MARKS, SHELL, & MANESS, ET AL. v. CYNTHIA T. MANN, ET AL.

Court:TCA

Attorneys:                          

David G. Ridings, Goodlettsville, Tennessee, for the appellants,
Cynthia T. Mann and Gary J. Mann.

Roger A. Maness, Clarksville, Tennessee, for the appellees, Marks,
Shell & Maness, a Tennessee general partnership consisting of Albert
P. Marks, Carmack C. Shell and Roger A. Maness; and Albert P. Marks,
Carmack C. Shell and Roger A. Maness f/d/b/a Marks, Shell, Maness &
Marks.

Judge: CAIN

First Paragraph:

This cause is a civil suit for damages against Gary and Cynthia Mann
resulting from Cynthia Mann's embezzlement of funds totaling
$550,000.00 from the law firm of Marks, Shell, and Maness.  The trial
court found Mr. and Mrs. Mann jointly and severably liable for the
loss.  Mr. Mann appeals.   We affirm the ruling of the trial court.

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

STATE OF TENNESSEE v. DENNIS JAMES VARNER

Court:TCCA

Attorneys:                          

Thomas Greenholtz, Chattanooga, Tennessee, for the appellant, Dennis
James Varner.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Bill Cox, District Attorney General; and
Jason Thomas, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Dennis James Varner, entered a conditional plea of
guilty to driving under the influence following the trial court's
denial of his motion to suppress evidence attendant upon his stop at a
roadblock.  The Defendant reserved for this Court's ruling a certified
question of law regarding the constitutionality of his stop by law
enforcement officers.  Upon our review of the record and pertinent
legal authority, we have determined that the trial court erred in
denying the Defendant's motion to suppress.  Accordingly, we reverse
the trial court's judgment and dismiss the charges against the
Defendant arising out of his stop at a roadblock conducted in
contravention of Tennessee's constitution.

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

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