News

Dismissal of House Fire Case Fails on Issues of Duty and Statute of Repose

WILLIAM TIMOTHY HAYES, ET AL. V. COOPERTOWN’S MASTERSWEEP, INC.
Court: TN Court of Appeals

Attorneys:

Russell E. Reviere, Jonathan D. Stewart, and Brandon W. Reedy, Jackson, Tennessee, for the appellants, William Timothy Hayes and Stephanie Hayes.

Leland M. McNabb, Pam Warnock Blair, and Andrew J. Droke, Memphis, Tennessee, for the appellee, Coopertown?s Mastersweep, Inc.

Judge: ARMSTRONG

This is an appeal from the grant of two motions for directed verdict. Appellants contracted with Appellee chimneysweep company to redesign and reconstruct portions of their fireplace and chimney to address a problem with smoke escaping into the den, upper floors, and attic. More than a year after the construction was completed, Appellants? home was damaged by a fire, which started when wood flooring joists in close proximity to the firebox ignited. Appellants brought claims for negligence and breach of contract against Appellee. The case was tried before a jury. At the close of Appellants? proof, the trial court granted the Appellee?s motions for directed verdict on the ground that the Appellants had failed to establish that the Appellee owed them a duty of care to conduct a destructive investigation of the safety of the Appellants? fireplace and also on the ground that the suit was barred by the applicable statute of repose. We affirm and remand.

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Supreme Court Reverses Lower Courts' Decision to Disallow Testimony from Expert on Informed Consent

IKE J. WHITE III v. DAVID A. BEEKS, M.D.
Court: TN Supreme Court

Attorneys:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White III.

Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.

Judge: LEE

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.

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Court Brings Arguments to Boys and Girls State

The Tennessee Supreme Court will hold oral arguments before hundreds of high school students next week. At Boys State, held May 27 at Tennessee Technological University in Cookeville, the court will consider cases involving unlawful search and seizure and whether an employer can refuse to hire someone who previously filed a workers’ compensation claim. At Girls State, held May 28 at Lipscomb University, the court will hear cases involving termination of parental rights and whether records related to the Vanderbilt rape case should be released to the public. The AOC has more on the cases.

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Fungal Meningitis Victims to Share $200 Million

A $200 million settlement has been reached to pay out claims in the 2012 nationwide outbreak of fungal meningitis that was first detected in Nashville and was traced to an injectable steroid made by Massachusetts-based New England Compounding Center (NECC). The outbreak sickened 778 people across the country, killing 76, according to an investigation by the U.S. Food and Drug Administration. Tennessee was one of the hardest hit states with a total of 153 people sickened and 16 deaths. Dozens of civil lawsuits from across the country were consolidated into the bankruptcy filing of NECC. About 3,770 people nationwide have filed claims against the company. The Tennessean has the story.

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4 Cancer Charities Sued for Alleged $187M Scam

Tennessee, along with the Federal Trade Commission and every other state in the country, has filed a joint federal lawsuit against four cancer charities with ties to East Tennessee, the Nashville Business Journal reports. The suit alleges that the charities – Cancer Fund of America, Children’s Cancer Fund of America, Cancer Support Services and The Breast Cancer Society – scammed donors throughout the country out of more than $187 million.

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Eastern Section Rejects Attempts to Impute Liability From Driver to Owner Via Family Purpose, Negligent Entrustment and/or Statutory Agency

DANA A. DANIELS v. NATALIE HUFFAKER ET AL.
Court: TN Court of Appeals

Attorneys:

William A. Hotz and Jeffrey H. Glaspie, Knoxville, Tennessee, for the appellant, Dana A. Daniels.

Beverly D. Nelms, Knoxville, Tennessee, for the appellee, Keith Norris.

Judge: FRIERSON

This case involves an automobile accident in which the plaintiff?s vehicle was struck by an oncoming pick-up truck when the truck?s driver attempted to turn left in front of the plaintiff?s vehicle. The plaintiff suffered injuries to her neck and back, as well as significant damage to her vehicle. The plaintiff brought this action, alleging negligence against the driver of the truck and negligent entrustment against the truck?s owner, who was the defendant driver?s brother-in-law. The plaintiff also alleged that the truck?s owner was vicariously liable for damages under the family purpose doctrine. The driver of the truck was never successfully served with process and is not a party to this appeal. The defendant owner of the truck filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the defendant owner. The plaintiff appeals. Discerning no reversible error, we affirm.

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A Divided Western Section Rejects Timeliness of Claims Commission Proceedings

BARBARA MCGINNIS v. STATE OF TENNESSEE
With dissenting opinion.
Court: TN Court of Appeals

Attorneys:

Michael Don Harrell, Memphis, Tennessee, for the appellant, Barbara McGinnis.

Herbert H. Slattery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor General, and Rebecca Lyford, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: ARMSTRONG

This is an interlocutory appeal of the Tennessee Claims Commission?s denial of Appellant State of Tennessee?s motion to dismiss the Appellees? appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees? notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees? appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

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STAFFORD dissenting

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Western Section Breathes New Life Into Case Dismissed for Failure to File Return on Service Within 90 Days

HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

Judge: STAFFORD

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant?s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

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Western Section Breathes New Life Into Case Dismissed for Failure to File Return on Service Within 90 Days

HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

Judge: STAFFORD

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant?s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

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Columnists Hold High Standard for 'Journal' Writing

In this issue, columnist John Day shares some facts about Tennessee Tort Cases; Marlene Moses and Ben Russ explain orders of protection; and Bill Haltom writes why lawyers should “go out for lunch and home for dinner.” In the year-long commemoration of the Journal’s 50 years, this installment looks back over all the columns and the impact they have made on readers, including the 10 men and women who write in substantive areas today. Especially do not miss the granddaddy of them all, the column that started in 1965 with the pressing subject, "The Telephone: Friend of Foe."

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Nashville Lawyers Launch New Practice

Brian Cummings and Brian Manookian have launched a new law firm – Cummings Manookian PLC in Nashville. They will focus on plaintiffs’ cases, including high exposure litigation within the areas of medical malpractice and personal injury.

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Nashville Orthopedist Loses Challenge to Hospital Privilege Revocation

DAVID H. MCCORD v. HCA HEALTH SERVICES OF TENNESSEE, INC.
Court: TN Court of Appeals

Attorneys:

C. Bennett Harrison, Jr., Jennifer M. Lankford, and Dan Warlick, Nashville, Tennessee, for the appellant, David H. McCord, M. D.

C. J. Gideon, Jr., Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center.

Judge: DINKINS

A hospital instituted a review of an orthopaedic surgeon’s removal of spinal hardware from patients within one year of implantation; the review resulted in a peer review proceeding under the hospital’s bylaws and the eventual revocation of the doctor’s surgical privileges. The doctor filed suit for breach of contract, defamation, common law and statutory disparagement, and intentional interference with business relationships, arising out of the revocation of his surgical privileges. Upon the hospital’s motion to dismiss all claims for failure to state a claim for relief, the court dismissed the breach of contract claims. The hospital subsequently moved to dismiss the remaining claims for lack of subject matter jurisdiction or, in the alternative for summary judgment; the court granted the motion to dismiss and denied summary judgment. Doctor appeals the dismissal of his claims; hospital appeals the denial of its motion for summary judgment. We affirm the dismissal of the breach of contract claims and reverse the dismissal of the tort claims for lack of subject matter jurisdiction; we hold that the hospital is entitled to summary judgment on the remaining claims and dismiss the case.

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Western Section Approves Injunction and Nominal Damages for MD Against Disgruntled Patient More Active on Facebook Than in Response to Required Discovery

JAMES C. LODEN, M.D., P.C., d/b/a LODEN VISION CENTERS, and JAMES C. LODEN, M.D., Individually v. GERALD MICHAEL SCHMIDT
Court: TN Court of Appeals

Attorneys:

Gerald Michael Schmidt, Franklin, Tennessee, Pro se.

James Bryan Lewis, Nashville, Tennessee, for the appellee, James C. Loden, M.D., P.C., d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually.

Judge: STAFFORD

Doctor filed this lawsuit against a former patient, alleging malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. After the patient refused to respond to discovery, the trial court eventually entered an order striking the patient‘s answer and entering a default judgment against the patient. The trial court later awarded the doctor nominal damages and a permanent injunction. Affirmed.

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'Open and Obvious' Summary Judgement Reversed by Eastern Section

JENNIFER WALDEN v. CENTRAL PARKING SYSTEM OF TENNESSEE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

David H. Dunaway and Rick A. Owens, LaFollette, Tennessee, for the appellant, Jennifer Walden.

R. Kim Burnette and Stacie D. Miller, Knoxville, Tennessee, for the appellees, Central Parking System of Tennessee, Inc. and Fort Sanders Regional Medical Center.

Judge: SWINEY

Jennifer Walden ("Plaintiff") sued Central Parking System of Tennessee, Inc. ("Central Parking") and Fort Sanders Regional Medical Center ("Fort Sanders") for negligence after she allegedly suffered injuries as a result of a fall in a parking garage located in Knoxville, Tennessee. Defendants filed a motion for summary judgment. The Circuit Court for Knox County ("the Trial Court") granted defendants summary judgment after finding and holding, inter alia, "that no alleged fault on the part of the defendants was the cause of plaintiff's accident and injuries, that the same occurred due to her own failure to observe the open and obvious condition of the premises that was there to be seen, and that reasonable minds could not differ on this issue." We find and hold that there is a genuine disputed issue of material fact regarding whether Plaintiff's fault was greater than defendants'. We, therefore, reverse the grant of summary judgment and remand this case for further proceedings.

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Western Section Agreed that Unduly Restrictive HIPPS Release is Fatal in Med Mal Case

WHITNEY LEIGH HARMON, ET AL. v. GREGG IAN SHORE, ET AL.
Court: TN Court of Appeals

Attorneys:

Walter Woods Bussart, Lewisburg, Tennessee, for the appellants, Whitney Leigh Harmon and Joshua David Harmon.

Michael F. Jameson, Nashville, Tennessee, for the appellee, Gregg Ian Shore.

Taylor Bradford Mayes, Nashville, Tennessee for the appellee, Maury Regional Hospital d/b/a Maury Regional Medical Center and d/b/a Maury Regional Surgical Center.

Judge: ARMSTRONG

This is a Health Care Liability case. Appellees are the treating physician and hospital. The trial court granted Appellees? Tennessee Rule of Civil Procedure 12.02 motions to dismiss Appellant?s lawsuit for failure to comply with the Tennessee Code Annotated Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically, the trial court determined that the required Health Insurance Portability and Accountability Act (HIPAA) medical authorization provided by Appellant was not substantially compliant with the statutory requirements in that the relevant medical records were released only to Appellant?s lawyer. Discerning no error, we affirm and remand.

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Light Impact Photos Properly Admitted into Evidence, per Western Section in Affirming a Verdict Under Claimed Medical Charges

GREGORY D. ALLEN v. DEBBIE D. ALBEA
Court: TN Court of Appeals

Attorneys:

David A. Siegel, Memphis, Tennessee, for the appellant, Gregory D. Allen.

Jay G. Bush, Jackson, Tennessee, for the appellee, Debbie D. Albea.

Judge: GOLDIN

This appeal arises from a jury verdict in favor of Plaintiff in the amount of $11,513.78. On appeal, Plaintiff raises several evidentiary issues, contends that juror misconduct requires a new trial, and asserts that the verdict is not supported by the evidence. We affirm.

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Mold Spores at Old Courthouse Source of Suit

Knox County and its Public Building Authority have asked a judge to toss a lawsuit filed by Knox County Clerk Foster Arnett Jr., WBIR reports. The suit alleges that “toxic mold spores” in the downtown Old Courthouse are causing Arnett's health to deteriorate and substantially interfering with his staff’s ability to work. Lawyers for the county argue that Arnett lacks standing to sue. WBIR has the news.

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Western Section Reverses Rule 12 Dismissal Under GTLA Following Suicide of Unstable Inmate

ANTHONY HOLDER, ET AL. V. SHELBY COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Robert L. J. Spence, Jr., and Bryan M. Meredith, Memphis, Tennessee, for the appellant, Anthony Holder, Individually and as next of kin of Decardis Holder, deceased.

Jean E. Markowitz and David E. McKinney, Memphis, Tennessee, for the appellee, Shelby County, Tennessee.

Judge: STAFFORD

Appellant father filed a complaint for damages against the defendant county, alleging that the negligence of a county employee caused the death of his son. The county filed a motion to dismiss the complaint based upon sovereign immunity. The trial court granted the motion to dismiss, concluding that the county employee‘s actions constituted intentional torts for which immunity was not removed, and that the employee‘s actions were outside the scope of his employment. We reverse and remand.

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Fairy Berry Very Merry After Western Section Affirms High GTLA Judgment

FAIRY BERRY v. CITY OF MEMPHIS
Court: TN Court of Appeals

Attorneys:

Roane Waring, III, Memphis, Tennessee, for the appellant, City of Memphis.

James M. Gulley and Daniel F.B. Peel, Memphis, Tennessee, for the appellee, Fairy Berry.

Judge: STAFFORD

This appeal arises from the trial court’s award of damages stemming from an automobile accident. In 2003, plaintiff was injured when her vehicle was struck by a Memphis Police Department officer’s car in an intersection. After a non-jury trial, the trial court awarded plaintiff damages for pain and suffering and loss of enjoyment of life. The City of Memphis appeals these damages, arguing (1) plaintiff’s expert non-treating physician was not qualified to opine as to emergency room treatment or costs; (2) plaintiff should not recover for her failure to mitigate her damages by exacerbating her injury; and (3) plaintiff’s testimony wherein she explains her ongoing pain did not warrant the amount of damages she was awarded. Discerning no error, we affirm.

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Court Extends Filing Period for Negligence Claims

The U.S. Supreme Court today made it easier for people to sue the federal government for negligence, the Daily Times reports. The justices, voting 5-4, ruled in two cases that the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline. The paper suggests that the new authority could affect military veterans with claims of medical malpractice.

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Nashville Lawyers Form New Firm

Four Nashville lawyers have joined together to form the law firm of Surber, Asher, Surber & Moushon. The firm will focus on personal injury, business and construction law, professional liability and insurance defense, and probate and conservatorship law. Joel Surber, Garrett Asher and Matt Moushon were formerly partners at Parker, Lawrence, Cantrell & Smith. Jennifer Surber formerly served as counsel to the Davidson County Probate Court and as Special Probate Master for the Seventh Circuit Court.

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TALS Seeks Presenters for Equal Justice Conference

The Tennessee Alliance for Legal Services (TALS) is seeking presenters to speak at this year’s Equal Justice University set for Sept. 2-4 at the Embassy Suites Hotel in Murfreesboro. The conference, cosponsored by the TBA, is the annual gathering for Tennessee’s Access to Justice community. Speakers are sought to provide substantive law courses, ethics and professionalism training, and technology and communications skills. Send proposals by May 15 to TALS’ Policy & Training Director Anne Fox.

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Western Section Rejects Discovery Rule in Finding Homeowner's Claim to be Untimely

JAY DANIEL, ET AL. v. ALLSTATE INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellants, Jay Daniel and Elaine Daniel.

Keely Nicole Wilson and Brandon Wayne Reedy, Jackson, Tennessee, for the appellee, Allstate Insuranc Company.

Judge: GIBSON

This is an appeal from the trial court’s grant of summary judgment in an action on a homeowner’s insurance policy that contained a one-year contractual limitations period on actions arising under the policy. The home of the insured parties was damaged by a fire on December 15, 2011. The insured parties submitted a claim with the insurer pursuant to their homeowner’s insurance policy. The insurer submitted an estimate and tendered a settlement check to the insured parties on April 2, 2012. Over a year later, on October 3, 2013, the insured parties filed suit alleging they were owed an additional $75,000 for personal use and construction improvements on a new home. The trial court granted summary judgment in favor of the insurer, finding that the insured parties’ claims were barred by the one-year contractual limitations period. After reviewing the record, we find no error in the trial court’s decision and affirm its grant of summary judgment.

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Western Section Applies Percentages of Fault Before Damage Cap and Other Failed Defense Attempts to Avoid Sizable Verdict for Memphis Auto Suit

ROOKS MONYPENY, ET AL. V. CHAMROEUN KHEIV
Court: TN Court of Appeals

Attorneys:

Robert L. Moore, Memphis, Tennessee, for the appellant, State Farm Mutual Insurance Company.

Thomas R. Greer and R. Sadler Bailey, Memphis, Tennessee, for the appellees, Brooks Monypeny and David Monypeny; Donald Capparella and Tyler Chance Yarbro, Nashville, Tennessee, for the appellees, Robert Edwin Sadowski and John Russell Sadowski.

Judge: ARMSTRONG

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

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Middle Section Rules that 'Willful Withdrawal' is Required for Abandoning Spouse to Lose Rights in Wrongful Death Action

LATONY BAUGH, ET AL. V. UNITED PARCEL SERVICE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

James S. Higgins and Richard D. Piliponis, Nashville, Tennessee, for the appellants, Jermeka D., et al.

Blair Durham, Nashville, Tennessee, for the appellee, Latony Baugh.

C. Christopher Brown and David A. Chapman, Nashville, Tennessee, for the appellees, United Parcel Service, Inc. and Jason Sanders.

Judge: BENNETT

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5- 106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section. We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

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