News

Court to Hear Insurance Law Debate From Bar Altercation

A battle over insurance laws has landed before the state Supreme Court following a man hitting a bar owner in 2012 while driving an Enterprise-Rent-A-Car, The Tennessean reports. Edward Martin, owner of The Pond in Franklin, appealed after a Williamson County judge dismissed the case because Martin’s insurance company claimed its policy supplied to Martin did not cover the Enterprise rental. The rental is considered “self-insured,” not uninsured. "The Court of Appeals (which upheld the Williamson County decision) has created a hole in the coverage of every uninsured motorist coverage plan in Tennessee," Shea Callahan, Martin’s attorney, said.

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BlueCross BlueShield to Appeal Breach of Contract Ruling

The Tennessean reports BlueCross BlueShield of Tennessee is appealing a recent decision by the Chancery Court for Tennessee's 20th Judicial District that says BCBST breached a contract with a general insurance agent. The court recently awarded James Walker, the president and owner of Individual Healthcare Specialists, $2.1 million after BCBST was found to have breached a commissions contract. BCBST argued that changes to the contract and commission structure on renewals were due to the Affordable Care Act.

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Tennessee Oncology Files Lawsuit Over Cancer Drug

Nashville-based Tennessee Oncology is suing Genentech for false representation in the packaging of its cancer drug Herceptin, The Tennessean reports. Tennessee Oncology, represented by Bass Berry & Sims, claims the label on the drug misrepresents the amount of product after following the approved preparation instructions for the freeze-dried powder. Similar lawsuits are pending in six other states.

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Middle Section Affirms Dismissal of Suit by Patient, Exploring Duty and the Dead Man Statute in the Process

KRYSTAL CHOATE EX REL. CLAYTON C. V. VANDERBILT UNIVERSITY
Court: TN Court of Appeals

Attorneys:

Larry D. Ashworth and Chelsea B. Ashworth, Nashville, Tennessee, for the appellant, Krystal Choate.

Steven E. Anderson, Sara F. Reynolds, and Sean C. Wlodarczyk, Nashville, Tennessee, for the appellee, Vanderbilt University.

Judge: MCBRAYER

A patient suffered a blunt-force trauma head injury when he fell while attempting to mount a wheelchair accessible scale at a dialysis clinic. Complications from this injury led to his death. Plaintiff, the patient’s former spouse, brought two wrongful death actions on behalf of the patient’s minor child. Each action eventually named as defendants the dialysis clinic and the owner of the property where the dialysis clinic was located. After the trial court consolidated the actions, the property owner filed a motion for summary judgment. The court granted the motion, concluding the property owner had no liability under any legal theory asserted by Plaintiff. We affirm the dismissal of the claims against the property owner.

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Western Section Affirmed Dismissal of Theft Claim Because $10,000 of Fencing is not a "Personal Effect"

DR. ROBIN M. STEVENSON v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA
Court: TN Court of Appeals

Attorneys:

Thomas D. Yeaglin, Memphis, Tennessee, for the appellant, Dr. Robin M. Stevenson.

Carl Knoerr Wyatt, Memphis, Tennessee, for the appellee, American Casualty Company of Reading, Pennsylvania.

Judge: GIBSON

This appeal involves a lawsuit filed by an insured against his insurer due to the insurer?s failure to pay a claim for a theft loss. The trial court granted summary judgment to the insurer, finding no coverage under the policy. We affirm.

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Eastern Section Affirms Award Following Emergency Vehicle Accident

ROBIN G. JONES ET AL. v. BRADLEY COUNTY, TENNESSEE ET AL.
Court: TN Court of Appeals

Attorneys:

Thomas E. LeQuire and Michael A. Kent, Chattanooga, Tennessee, for appellants, Bradley County, Tennessee, and Bradley County Fire Rescue.

Flossie Weill, Chattanooga, Tennessee, for appellees, Robin G. Jones and Jack L. Lane.

Judge: SUSANO

This is a governmental tort liability action against Bradley County Fire Rescue and Bradley County (collectively Bradley County) arising out of a motor vehicle accident at a large intersection in Cleveland, Tennessee. Fire Rescue employee Matthew Mundall, responding to an emergency call in a Ford F-250 truck equipped with siren and emergency lights, began making a left turn against the red light after stopping or slowing in an attempt to make sure the oncoming traffic lanes were clear. Plaintiff Robin G. Jones, who had the green light and testified she did not hear or see the emergency vehicle, drove into the intersection and collided with the truck. After a bench trial, the trial court allocated 40% fault to Jones and 60% fault to county employee Mundall. The court awarded Jones a judgment against Bradley County in the amount of $207,366.1 Bradley County appeals, arguing that the court erred in its assessment of 60% fault against Mundall, and that the award of damages to Jones was excessive and unsupported by the evidence. We affirm.

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In This Issue: A Twist on DUI, Family Law and Torts

You know how DUI works -- at least the kind involving alcohol, but what about when the driver is impaired by drugs? Circuit Judge Tom Wright and UT Law student Christopher Graham explain in the January Tennessee Bar Journal what's different about that and what you need to know. (You can also learn more on the same subject from this upcoming TBA CLE webcast.) TBJ family law columnist Marlene Eskind Moses covers employment benefits as separate property and John Day writes about unintended consequences in tort law (Breaking Bad fans will especially enjoy this take on it). Humor columnist Bill Haltom questions the legislature's interest in events on the campus of UT-Knoxville. Read the entire issue.

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Discrimination Suit Against Farmers Granted Class Action Status

A California federal judge certified a class action status to a discrimination suit in which a group of female current and former attorneys of Farmers Insurance claim the company paid men higher salaries. Lynne Coates, who had worked for Farmers for a total of nine years, filed the original complaint in which she alleged Farmers was paying less-experienced male employees a larger salary than her own. Twelve attorneys have joined the suit. Read more from the Insurance Journal.

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Court of Appeals Rejects 'Dangerous Breed' Dog Attack Theory

JAMES ANTHONY MOORE v. MICHAEL GAUT1
Court: TN Court of Appeals

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, James Anthony Moore.

Stephanie L. Prager and Shelley S. Breeding, Knoxville, Tennessee, for the appellee, Michael Gaut.

Judge: SUSANO

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment.

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Dismissal of Premises Liability Case Upheld by Court of Appeals

GARY LEE STEELE, ET AL. v. PRIMEHEALTH MEDICAL CENTER, P.C., ET AL.
Court: TN Court of Appeals

Attorneys:

Mark Anthony Lambert, Memphis, Tennessee, for the appellants, Gary Lee Steele and Judy Steele.

Russell B. Jordan, Dawn Davis Carson, and Hal Scot Spragins, Jr., Memphis, Tennessee, for the appellees, PrimeHealth Medical Center, P.C., and Olugbenga Fayele.1

Judge: GIBSON

This is a premises liability case. A delivery person fell on a sidewalk outside the place of business where he was delivering an order. He and his wife sued the business and its owner for negligence, claiming that the condition of the sidewalk was unreasonably dangerous. The trial court granted summary judgment to the defendants, concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk was unreasonably dangerous. For the following reasons, we affirm the decision of the trial court.

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West Section Wrestles with Collateral Source/Advance Payment Issues Involving Prisoner Injury

TERRY HOLLIDAY v. STATE OF TENNESSEE
Court: TN Court of Appeals

Attorneys:

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Eric A. Fuller, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

Glenn K. Vines and Eric A. McEnerney, Memphis, Tennessee, for the appellee, Terry Holliday.

Judge: GOLDIN

This is an appeal by the State of Tennessee from the Tennessee Claims Commission’s award of a judgment against it. While he was an inmate in the State’s custody, Plaintiff sustained injuries when he fell out of a pickup truck that was being operated by a State employee. Plaintiff filed a complaint with the Claims Commission in which he alleged that the State’s negligence caused his injuries and sought damages for, among other things, the medical expenses that were incurred as a result of the fall. The State argued that it should receive a credit against any award of damages for the medical expenses Plaintiff incurred during his incarceration because it paid those expenses through its contracts with two private medical vendors. The Claims Commission disagreed and held that evidence of payments made by the medical vendors for Plaintiff’s treatment was barred by the collateral source rule. The Claims Commission awarded Plaintiff $125,000 in damages, which included damages for the medical expenses that he allegedly incurred. On appeal, we conclude that because the State was required by law to pay for all medical expenses Plaintiff incurred during his incarceration, the Claims Commission erred in considering the cost of the medical services provided to Plaintiff in calculating his damages. We therefore vacate the Claims Commission’s award of damages and remand this matter for a new trial on the issue of damages.

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Couple Files $7.5M Suit After Death of Son

Attorney T. Scott Jones filed a lawsuit on behalf of John and Candi Hall that seeks $7.5 million in damages following the 2014 shooting death of the couple’s son, Evan Hall, in West Knox County.  WBIR reports that the suit accuses Bailey's Sports Grille of illegally serving alcohol to the 19-year-old. The suit also names shooting suspect Jack Bush and his parents.

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Court Date Set for Franklin Man Accused of Fraud in Wellness Company

George David George, who is accused of devising a stock scheme and stealing millions of dollars from a Brentwood wellness company, is scheduled to appear in federal court on Jan. 12. The Franklin resident was charged with four felonies and is accused of collecting $2.25 million in investments from WellCity Foundation. "We don't subscribe to the notion that it was a Ponzi scheme," George's attorney Peter Strianse said. "The company provided real services, and was used by a lot of school districts and things like that. We insist it wasn't a facade." Read more from the Franklin Home Page.

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Court of Appeals Considers Gross Negligence in Storage Unit Flooding Matter

KENNETH KUHN, et al v. PAM PANTER dba VALLEY MINI STORAGE
Court: TN Court of Appeals

Attorneys:

Norris A. Kessler, Winchester, Tennessee, for the appellant, Valley Mini Storage.

Gerald L. Ewell, Tullahoma, Tennessee, for the appellees, Kenneth Kuhn and Teresa Kuhn.

Judge: ARMSTRONG

This is negligence case. Appellees rented a storage unit from Appellant. The storage unit flooded, and the flooding destroyed Appellees’ personal property. Appellees filed suit against Appellant in general sessions court, claiming negligence and gross negligence. Appellees prevailed in general sessions court, and Appellant appealed the case to the trial court. After a bench trial, the trial court found the exculpatory clause in the parties’ rental agreement was void. The trial court also found that the Appellant’s rental of the unit to the Appellees, despite its knowledge of the obvious condition of flooding and advertising its units as dry, constituted gross negligence. We affirm.

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Administrative Med Mal Scheme Discussed

The Medical Malpractice Study Committee of the Senate Commerce & Labor Committee met today to consider SB507 by Sen. Jack Johnson (HB546 by Rep. Glen Casada), which moves medical malpractice claims out of the court system into a Patients’ Compensation System, relieves physicians of personal malpractice liability, and sets up an independent medical review panel of physicians and medical experts to review plaintiffs' claims. Presenting the legislation were representatives of the group Patients For Fair Compensation. Those in opposition and raising concerns included the Tennessee Medical Association and State Volunteer Mutual Insurance Company. Legislators attending today’s meeting included Sen. Jack JohnsonSen. Mark GreenSen. Reginald TateRep. Glen CasadaRep. Dennis PowersRep. Joe PittsRep. David Shepard and Rep. Kelly Keisling. Check TBAImpact for updates on this issue.

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Traffic Cameras Support Summary Dismissal of Relight Case

VAAL HALL, BY AND THROUGH HIS CONSERVATOR, THERESA ANNE HALL, AND THERESA ANNE HALL, INDIVIDUALLY v. CHARLES L. OWENS JR., ET AL.
Court: TN Court of Appeals

Attorneys:

John Hamilton, Jackson, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellants, Vaal Hall and Theresa Anne Hall.

James C. Wright, Knoxville, Tennessee, for the appellees, Charles L. Owens, Jr., and Delta Beverage Group, Inc.

Judge: GOLDIN

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

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Middle Section Extends Employer's UM Coverage to Business Use of a Personally Owned Vehicle Under Texas Law

GUNNAR C. SKARBREVIK, ET AL. V. PERSONAL REPRESENTATIVE OF ESTATE OF CAROLYN E. BROWN

Court: TN Court of Appeals

Attorneys:

Alan Mark Sowell and William H. Tate, Nashville, Tennessee, for the appellant, Zurich North American Insurance Company.

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellees, Gunnar C. Skarbrevik and Linda Skarbrevik.

Judge: DINKINS

An employee, who was injured in an accident with an uninsured motorist while on company business and while driving an automobile owned by his wife, sought to recover for his injuries through the uninsured motorist provision of his employer’s business automobile policy. The insurer denied coverage, asserting that the policy only provided coverage for automobiles owned by the company. The trial court granted the employee’s motion for partial summary judgment, holding that an endorsement to the policy which added employees using non-company vehicles on company business to the liability coverage operated to make those employees “insured” for purposes of the uninsured motorist coverage. Insurer appeals; finding no error in the trial court’s interpretation of the policy, we affirm the judgment.

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Ice is Slippery — Plaintiff Loses Premises Claim

TONY HALL v. GAYLORD ENTERTAINMENT COMPANY, ET AL

Court: TN Court of Appeals

Attorneys:

Mark W. Honeycutt II, Nashville, Tennessee, for the appellant, Tony Hall.

R. Dale Bay, Nashville, Tennessee, for the appellee, International Special Attractions, Ltd.

Judge: GOLDIN

This is a negligence action. While attending a holiday-themed ice exhibit, the plaintiff slipped and fell at the top of an ice slide attraction that was a feature of the exhibit and sustained injuries to his arm. The plaintiff subsequently filed suit against the company that constructed the ice slide asserting various theories of negligence. After the company filed a motion for summary judgment in which it demonstrated that the plaintiff had not presented any evidence to support his claims, the plaintiff conceded that the company was entitled to summary judgment on all of his claims except those related to negligent design of the ice slide. In support of his assertion that the company breached a standard of care in designing the ice slide, the plaintiff relied solely on American Society of Testing Materials safety standards for children’s playground equipment. The trial court determined that because the standards were not applicable to the ice slide, the plaintiff failed to demonstrate how the company was negligent in designing the ice slide. The trial court granted the company’s motion for summary judgment. We affirm.

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CSX Seeks to Move Blount County Suit to Federal Court

CSX Transportation Inc. wants to transfer a class-action lawsuit from Blount County Circuit Court to federal court, The Daily Times reports. The class-action lawsuit was filed after a train derailment on July 2 that resulted in the evacuation of 5,000 Maryville residents. The suit seeks unspecified damages. CSX is facing three other lawsuits in the derailment.

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Middle Section Explores Negligent Entrustment and Negligent Supervision in ATV Accident

SARAH WARD, ET AL. v. SHELAENA WARD

Court: TN Court of Appeals

Attorneys:

Benjamin E. Winters, Nashville, Tennessee, for the appellant, Sarah Ward.

Daniel P. Berexa and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellee, Shelaena Ward.

Judge: DINKINS

After her daughter was injured in an ATV accident, Plaintiff filed suit against her daughter’s step-grandmother, in whose home the daughter was staying on the night of the accident and who owned the ATV, alleging numerous causes of action sounding in negligence. The trial court granted Defendant’s motion for summary judgment; Plaintiffs appeal as to the claims for negligent entrustment and negligent supervision. Finding no reversible error, we affirm the judgment.

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Knoxville Attorney Addresses Benefits Disputes in Editorial

Knoxville attorney Sam Doak of Arnett, Draper and Hagood writes in the Knoxville News Sentinel that Tennessee’s relatively new workers’ compensation law – effective July 1, 2014 – is causing some confusion when it comes to how medical and other temporary benefits are addressed. “The point is that the parties need to think ahead, be smart about what issues they dispute and be prepared to appear before a judge to justify their position with admissible evidence if they cannot reach a compromise,” Doak writes. 

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Supreme Court Denies Tire Company Dismissal Request

The Tennessee Supreme Court denied Bridgestone entities’ request to dismiss a case because of lost evidence and a request for summary judgment. The decision affirmed a trial court ruling in the case in which a woman’s car was totaled in an accident after it appeared that a tire may have failed and the wrecking service later destroyed her car. The Court also reviewed the defendants’ additional reasons for requesting summary judgment, conducting the analysis under the Court’s recent opinion in Rye v. Women’s Care Center of Memphis. Justice Gary R. Wade wrote a concurring opinion, in which he disagreed with the new summary judgment standard, but reached the same conclusion under a different analysis. Read the opinion authored by Justice Jeffrey S. Bivins.  

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Middle Section Affirms Dismissal via Summary Judgment in Defamation Case Against Chattanooga Congressman and GOP

MARK A. WINSLOW v. JOHN BRUCE SALTSMAN, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Gary Blackburn, Bryant Kroll and Raymond Throckmorton, III, Nashville, Tennessee, for the appellant, Mark A. Winslow.

Paul C. Ney, Jr., Nashville, Tennessee, for the appellee, John Bruce Saltsman, Jr. 2 Richard E. Spicer, Brent S. Usery, and Lance W. Thompson, Nashville, Tennessee, for the appellee, Charles J. Fleischman. Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and William J. Marett, Jr., Senior Counsel, for the Tennessee Attorney General.

Judge: DINKINS

Mark Winslow brought suit against Charles Fleischmann and his campaign advertising consultant, John Saltsman, to recover for allegedly false and defamatory statements made in the course of Mr. Fleishman’s campaign for election to the United States Congress, and related contractual claims. Mr. Fleishman and Mr. Saltsman moved for summary judgment on the grounds that the statements were not false or capable of defamatory meaning or published with actual malice, and that they took no action to induce a breach of contract or otherwise interfere with the relationship between Mr. Winslow and the Tennessee Republican Party. Mr. Winslow did not contest the grant of summary judgment on the contract claims; the trial court granted the motion as to the defamation and false light claims, holding that there was no evidence from which to infer malice, that the statements were not defamatory or capable of a defamatory meaning, and that any statements upon which the action was based which related to Mr. Winslow were either true or substantially true and, therefore, not actionable. Mr. Winslow appeals. Because Mr. Fleishman and Mr. Saltsman demonstrated that the undisputed facts negate the element of actual malice which is essential to the defamation and false light claims, we affirm the trial court’s grant of summary judgment.

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There will be no Ruling Impacting the Collateral Source Rule on Connection with Hall v Holland

Despite extensive interest and briefing, the Supreme Court declines to accept a certified question related to the scope of its earlier decision about reasonableness of medical expenses in the hospital lien context.

The Court had been asked by the U S District Court in Memphis to answer the following certified question of law:
Is the decision in West limited to the Hospital Lien Act or is it also applicable to personal injury actions directly against the allegedtortfeasor?

Upon thorough review, the Court found that the certified question is not one which will be determinative of the cause as is required of certified questions and declined the opportunity to respond.

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Court Vacates Decision on Constitutionality of Cap

The Tennessee Supreme Court has set aside a Hamilton County trial court ruling that said a state law capping non-economic damages in certain personal injury cases is unconstitutional. The court wrote in its order that the issues were not “ripe” for constitutional consideration at this point, because there has not yet been a final decision in the case nor any award of non-economic damages in excess of the statutory cap.

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