News

Muslim Officer Wins $100K for Wrongful Firing

De’Ossie Dingus, a Tennessee Highway Patrol trooper who was fired after being labeled a potential jihadist, has won a $100,000 damage award from the state. U.S. District Judge Tena Campbell ordered the state to pay Dingus after he was treated as a threat, subjected to humiliating circumstances and wrongfully terminated because of his faith. The Sixth Circuit U.S. Court of Appeals ruled earlier this year that the case was so egregious it did not require a traditional proof of psychological harm to have damages awarded. That ruling led to this week’s award, Knoxnews reports.

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Gas Shortage Leads to Hundreds of Complaints

An ongoing gas shortage has prompted hundreds of price gouging complaints statewide, the Tennessean reports. The Tennessee Department of Commerce and Insurance reports nearly 600 consumer complaints came in over the weekend related to gas issues and prices. Most of the complaints came from Nashville drivers and involved gas prices that were under $3 a gallon, but some consumers said retailers were charging $9.99 a gallon. In response, Gov. Bill Haslam issued an executive order that would allow longer hours for fuel truck drivers so they can bring oil from refineries further away. 

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Read About Estates, Torts, Family Law … and Dodge Ball?

Murfreesboro lawyer Josh McCreary examines last wills and testaments, writing that "in the wake of the 2015 Court of Appeals opinion in In Re: Estate of Morris, the Tennessee legislature has stepped in and amended Tenn. Code Ann. §32-1-104 to lessen the formalities of Wills executed before July 1, 2016." Read in the September Tennessee Bar Journal what this will mean for estate practice. Columnist John Day writes about the two times in the past five years that the statute of limitations applicable to personal injury claims filed on behalf of persons with mental impairments has been changed. Columnists Marlene Eskind Moses and Manuel Benjamin Russ look into finding and defining income available for child support and alimony, and humor columnist Bill Haltom writes about his dubious experiences with junior high sports, particularly Dodge Ball.

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State Dems Want Hearing on Insurance Rates

Tennessee Democratic lawmakers are calling for a public hearing on the state’s decision to approve increases for some health insurance plans by as much as 62 percent. They say Insurance Commissioner Julie Mix McPeak has not done enough to show the increases are needed to keep the health insurance market afloat, Nashville Public Radio reports. McPeak blamed flaws in the Affordable Care Act for the increase. But Democrat Sen. Jeff Yarbro questioned why Tennessee is doing so much worse than everyone else. “Why are our rates going up higher and faster than every country — every other state in the country?” Some say it is because the state has not expanded its Medicaid program to include the sickest residents, leaving them in the general insurance pool.

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Court Solicits Comments on 2017 Rules Package

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include changing the place for filing a notice of appeal to the appellate clerk’s office, requiring payment of fees and taxes to the appellate court clerk at the time of initiation of an appeal, and changes to the Juvenile, Criminal and Evidence rules. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law and Juvenile and Children’s Law – will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 23.

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Insurance Commissioner: Health Exchange ‘Very Near Collapse’

Tennessee Insurance Commissioner Julie Mix McPeak proclaimed the state’s health exchange “very near collapse” yesterday after signing off on significant premium hikes in a bid to keep the platform viable. The rate approvals were necessary to ensure healthcare options in every part of Tennessee, McPeak said. Tennessee is seeing a steady decrease in the number of insurance companies selling plans on the federally run exchange, the Tennessean reports. In 2017, 57 of the state’s 95 counties will have only one insurance company serving their area.

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Nashville Attorney to Chair ABA Section

Sam H. Poteet Jr., a principal with Manier & Herod in Nashville, has been elected to a one-year term as chair of the American Bar Association Tort Trial and Insurance Practice Section (TIPS). He will begin serving his 2016-17 term at the conclusion of the ABA annual meeting in San Francisco, which starts today and runs through Aug. 9. TIPS unites plaintiff, defense, insurance and corporate counsel to advance the civil justice system. It has about 20,000 members and 31 general committees that focus on substantive and procedural matters in areas across the broad spectrum of civil law and practice.

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VW Settlement Gets Preliminary Court Approval

A federal judge gave preliminary approval today to a sweeping settlement between Volkswagen, U.S. regulators and owners of VW diesels who will receive thousands of dollars in compensation, the Tennessean reports. Judge Charles Breyer with the U.S. District Court for the Northern District of California, set the settlement in motion, allowing the automaker to begin collecting information from 475,000 consumers who bought cars that were rigged to cheat emissions standards. Final approval of the settlement could come at a hearing set for Oct. 18. .

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Computer Forensics for Lawyers

On Aug. 2, Lars Daniel with Guardian Digital Forensics in Raleigh will present a special CLE webcast on computer forensics. He will use real life examples to show how forensic artifacts recovered from computers are used in legal cases. Other topics will include best practices in data collection, understanding deleted data, challenging digital evidence and expert testimony. If you cannot join the webcast live, the program will be available on the website for up to one year. Learn more or register here.

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Mitchell: Frivolous Lawsuit Bill May Discourage Abuse Claims

Rep. Bo Mitchell, D-Nashville, has announced that he is filing legislation to repeal a new law that was intended to prevent frivolous lawsuits, Humphrey on the Hill reports. Mitchell argues that the law could be used to discourage sexual abuse claims. “Under this new law, should you sue the state and a state employee and lose, you could be forced to pay their attorney’s fees,” Mitchell said. “Not all lawsuits are successful, but that doesn’t mean that they are frivolous.”

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'Pokemon Go' Raising Thorny Legal Issues

Pokemon Go is taking the country by storm. But with imaginary characters waiting to be “caught” on both public and private property, the game is “raising legal issues and public safety concerns.” Press headlines indicate people are injuring themselves and others in pursuit of the game, while private property owners are dealing with players swarming their land. The game’s terms of service disclaim liability for property damage, personal injury or death occurring while playing but thorny legal issues no doubt await. The ABA Journal has links to several legal articles on the issue.

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Court: Bankruptcy No Shield for GM Ignition Switch Claims

The U.S. Second Circuit Court of Appeals today struck down bankruptcy decisions that shielded General Motors from liability related to ignition switch defects, Reuters reports. The court found that a 2009 sale of the automakers’ assets, which provided the company with legal cover, violated potential victims’ rights to due process. The ruling effectively rebuffs GM’s attempts to block hundreds of customer lawsuits over faulty ignition switches that led to criminal charges and prompted the recall of 2.6 million vehicles in 2014.

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Under Particular Facts, Premises Liability Action of Deceased Independent Security Guard After Gun Death Fails Against Apartment Complex Owner

THE ESTATE OF BLAKE B. CUNNINGHAM, BY AND THROUGH BARBARA CUNNINGHAM v. EPSTEIN ENTERPRISES LLC, ET AL.
With concurring opinion.
Court: TN Court of Appeals

Attorneys:

Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellant, Barbara Cunningham.

Lacey L. Adair, Richard Glassman and Whitney Boshers Hayes, Memphis, Tennessee, for the appellees, Epstein Enterprises, LLC, and Louis and William Epstein, LP.

Judge: MCBRAYER

In this premises liability case, the plaintiff appeals from the trial court’s grant of summary judgment in favor of the defendants, the manager and owner of an apartment complex. The trial court concluded that the defendants owed no duty to a security guard, who was fatally shot while working at the apartment complex. Although a premises owner generally owes a duty to provide independent contractors with a safe workplace, under the facts of this case, we conclude that the defendants owed no duty to protect the security guard from the criminal acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment in favor of the defendants. Additionally, we affirm the award of discretionary costs to the defendants.

.PDF Version of Case

Concurring Opinion

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Tort Victims Not Allowed to Intervene Onto Tort Defendant's Wrongful Death Case Against Government

CHRISTOPHER J. WHITE, ET AL. v. LISA M. JOHNSON, ET AL. v. CITY OF MEMPHIS, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Lenal Anderson Jr., Memphis, Tennessee, for the appellants, Christopher J. White, and Angelique Marie White.

Howard B. Manis and Andrew C. Clarke, Memphis, Tennessee, for the appellees, Lisa M. Johnson and Sherkita Lockhart.

Judge: STAFFORD

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

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New Litigation Courses Now Available Online

Online CLE programs offering insight into a range of litigation matters are now available online. Sessions cover med-mal updates, third party reviews, the ethical use of social media and effective deposition strategies. Check these courses out at the links above.

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Tennessee Eligible for $55M from VW Settlement

Volkswagen will pay $570 million to compensate American consumers and buy back or fix falsely-marketed diesel vehicles, the Tennessee Attorney General announced today. Under the deal, car owners in Tennessee will be eligible to receive $12.6 million. Volkswagen also will spend $2.7 billion on programs to reduce nitrogen oxide, $2 billion to develop zero-emission cars and $20 million to compensate states for their legal costs and pay for future investigations into emissions violations. The settlement ends a multistate action brought by 43 state attorneys general on grounds that Volkswagen sold more than 570,000 diesel vehicles in the United States with devices intended to circumvent emissions standards. Learn more about submitting a claim.

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Judge Seeks to Dismiss Baptist Healing's Pensions Suit

Federal Magistrate Judge Joe Brown is recommending that Baptist Healing Trust's suit against Pension Benefits Guaranty Corp. be dismissed, noting that 2,000 Baptist Healing pensioners will have have no recourse to recover their pensions if the case proceeds. Baptist Healing, which sold most of its assets to Ascension Health, claims the hospital is exempt from federal regulation because the Employment Retirement Income Security Act contains an exemption for "church plans.” Read more from the Nashville Post

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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Insured Keeps Fire Verdict But Loses Punitives and Bad Faith Penalty in Court of Appeals

JUDY LANCE d/b/a J&B DISCOUNT v. OWNER’S INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

N. Mark Kinsman, Hixson, Tennessee, and Gaëtan Gerville-Réache, Grand Rapids, Michigan, for the appellant, Owners Insurance Company.

Robert G. Norred, Cleveland, Tennessee, for the appellee, Judy Lance d/b/a J&B Discount.

Judge: MCCLARTY

This is a breach of insurance contract action for failure to remit payment pursuant to a business-owners policy after the subject property was destroyed by fire. The case proceeded to jury trial. After denying the insurance company's motion for a directed verdict, the court submitted the case to the jury. The jury found that the plaintiff was entitled to recover under the policy and awarded compensatory and punitive damages and prejudgment interest. The jury also imposed a bad faith penalty and damages pursuant to the Tennessee Consumer Protection Act. The insurance company appeals. We affirm in part and reverse in part.

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Jury Awards $2M to Conductor Struck by Train

A jury this week awarded railroad conductor Shawn Hall more than $2 million after he was struck by a train in Shelby County, even after determining that Hall was 50 percent responsible for the accident. Hall, who lost part of his leg and fractured both of his arms in the accident, argued Illinois Central Railroad Company was negligent because it failed to warn him of the unscheduled train that hit him. Read more from The Commercial Appeal

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Wearable Tech May Aid in Personal Injury Claims

“In the world of personal injury law wearable tech may become a pivotal element in bringing justice to those who have become victims,” according to Law Technology Today. The article explores the use of items like Smartwatches when making a personal injury claim, along with the possible issues that could arise from misusing the technology.  

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We Are Looking for a Few Good Lawyers to Join the TBA Tort & Insurance Law Section Executive Council!

The TBA Tort & Insurance Law Section Executive Council are looking for individuals who would like to join the executive council and assist with the development of the section's CLE program, discussing and providing opinions on potential legislation that may be brought up during the legislative session, and producing news to the section.

If you are intested in joining the Executive Council, please contact me via email by Friday, June 10, 2016.  Please put TBA TORT & INSURANCE LAW SECTION EXECUTIVE COUNCIL in the Subject line of your email.  Your information will then be submitted to the Executive Council for review.

If you have any questions, please feel free to contact me. We look forward to you joining the Executive Council!

 

-- Christy Gibson, TBA Tort & Insurance Law Section Coordinator

 

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School Board Approves Settlement Following Leaked Student Information

The Williamson County School Board approved last night a $36,500 counter settlement to a pending lawsuit, The Tennessean reports. The counter settlement came in response to the threat of a lawsuit that alleges a special needs student suffered from leaked student information and the board's reaction to a school fight.

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Res Ipsa Fails to Salvage Suit for Elevator Occupant Who Fell

KARLA J. DENNIS, ET AL. v. DONELSON CORPORATE CENTRE I, LP, ET AL.
Court: TN Court of Appeals

Attorneys:

Tim L. Bowden, Goodlettsville, Tennessee, for the appellants, Karla J. Dennis and Stanley Dennis.

T. Tamara Gauldin, Atlanta, Georgia, for the appellee, Nashville Machine Elevator Co., Inc.

Judge: ARMSTRONG

This is a negligence case. Appellee, an elevator maintenance company, contracted with building owner to provide maintenance service for the building‟s elevators. Plaintiff was injured when one of the elevators allegedly did not level properly, causing her to fall as she was exiting the elevator. Plaintiff and her husband brought suit against the building's owner, the building's management company, and Appellee. Appellee filed a motion for summary judgment, which the trial court granted. Appellants appeal.

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Journal Columns Cover Family Law, Torts, Mentoring

If you are looking for some weekend reading, catch up on the Tennessee Bar Journal columns that are in this month's issue. Marlene Eskind Moses and Benjamin Russ explain Qualified Domestic Relations Orders and state/local government pensions; John Day writes about surviving spouses and wrongful death claims; and TBA President Bill Harbison explains how important mentor relationships can be. Bill Haltom recalls two mentors he and his family lost recently, Howard and Claude Swafford -- his "two favorite courthouse square lawyers."

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