News

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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Insurance Defense Firm Expands to Nashville

McAngus Goudelock & Courie, a regional insurance defense firm, has expanded into Nashville, making it the firm’s 12th office in the Southeast. MGC welcomes four new attorneys to the firm’s newest office: Paul Brewer, Joey Johnsen, Chuck Mangelsdorf and Stephen Morton.

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Opt-Out Workers Comp Bill On Hold

A crusade to allow Tennessee employers to opt out of mandatory workers’ compensation insurance seems a first-year flop, but will likely be back next year, Knoxnews reports. Sponsored by Rep. Jeremy Durham, R-Franklin, SB0721/HB0997 sets minimum payout provisions — $300,000 in most circumstances for medical coverage — and sets a limit on lawsuit payouts. The Tennessee Bar Association and a number of insurance companies oppose the proposal.

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Western Section Rules That Claims Against the Additional Parties Were Time Barred Because the Amended Complaint Adding These Parties Was Not Filed Within Ninety Days of the Original Answer Asserting Comparative Fault Against Non-Parties

CLIFFORD SWEARENGEN v. DMC-MEMPHIS, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

Ronald Krelstein, Germantown, Tennessee, and Steven Markowitz, Memphis, Tennessee, for the appellant, Clifford Swearengen.

Jonathan Martin and Joshua Hillis, Memphis, Tennessee, for the appellee, DMC-Memphis, Inc. d/b/a Delta Medical Center.

Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Prism Medical Group, PLC, Michael Johnson, M.D., and Jeffrey Stricklin, NP.

Judge: ARMSTRONG

This is an appeal from the trial court?s grant of a motion to dismiss Appellant?s medical malpractice action1 against defendants named in Appellant?s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant?s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

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Middle Section Affirms Dismissal of Lost Consortium Claim Due to Pre-Suit Notice Deficiencies in Med Mal Case

JOSEPH IGOU, ET AL. V. VANDERBILT UNIVERSITY
Court: TN Court of Appeals

Attorneys:

Amy J. Farrar, Murfreesboro, Tennessee, and Matthew C. Hardin, Nashville, Tennessee, for the appellant, Ginger Igou.

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

Judge: MCBRAYER

This appeal asks whether a wife‘s loss of consortium claim, brought pursuant to her husband‘s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital‘s motion to dismiss, finding that the wife‘s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court‘s order of dismissal with prejudice and remand.

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Middle Section Affirms GTLA Fault Apportionment After Fall at County Fair

SARAH KEE, ET AL. V. CITY OF JACKSON, TENNESSEE
Court: TN Court of Appeals

Attorneys:

John Dean Burleson and Matthew Robert Courtner, Jackson, Tennessee, for the appellant, City of Jackson, Tennessee.

David Wayne Camp, Jackson, Tennessee, for the appellees, Sarah Kee and Larry Kee.

Judge: DINKINS

Action under the Tennessee Governmental Tort Liability Act against the City of Jackson to recover for injuries sustained in a fall suffered by one plaintiff while she and her husband were walking across a bridge from a parking lot to the fairgrounds operated by the City. Following a bench trial, the court held that the bridge was in a defective and dangerous condition and that the City was not immune from suit; the court determined that the City was 60% negligent and the plaintiff 40% negligent. The court assessed damages at $62,817.35 for plaintiff wife and $8,400.00 for plaintiff husband; applying the comparative fault percentage, the court awarded plaintiff wife $37,690.41 and plaintiff husband $5,040.00. We modify the award of damages to plaintiffs; in all other respects we affirm the judgment of the trial court.

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Middle Section Enforces Mid-Trial Settlement of Property Damage Suit

NANCY HART DIEHL HARVEY, EXECUTRIX OF THE ESTATE OF W. JOSEPH DIEHL, JR., ET AL. V. PHILLIPS TURNER, JR.
Court: TN Court of Appeals

Attorneys:

Darrell G. Townsend, Nashville, Tennessee, for the appellant, Phillips Turner, Jr.

T. Michael O’Mara, Cookeville, Tennessee and Robb S. Harvey, Nashville, Tennessee, for the appellees, Nancy Hart Diehl Harvey, Executrix of the Estate of W. Joseph Diehl, Jr., and Patricia Simpson.

Judge: BENNETT

This is a lawsuit brought for damage to property. After partial summary judgment was denied to the defendant, and after the trial court ruled that the defendant’s request for a jury trial was waived, the parties proceeded to a bench trial. During a hiatus after three days of trial, the parties settled the case and announced the essential terms of the settlement to the court in open court. The parties failed to agree to a written settlement document, and the plaintiffs asked the trial court to enforce the settlement. The trial court found that the settlement was enforceable. The defendant appealed. We affirm.

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Western Section Enforces Reduced Attorneys Fees Contracted During Mediation of Tort Suit

JANICE BUNCH v. TIFFANY JONES
Court: TN Court of Appeals

Attorneys:

William R. Bruce, Memphis, Tennessee, for the appellant, Janice Bunch.

Jeremy G. Alpert, Memphis, Tennessee, for the appellees, Oscar C. Carr, III and Glankler Brown, PLLC.

Judge: ARMSTRONG

This is an appeal from an award of attorney?s fees following settlement of the underlying lawsuit. Appellees, law firm and attorney, represented Appellant in a lawsuit arising from an automobile accident. After protracted mediation, Appellee orally agreed to lower its contingency fee from 33 1/3% to 10% in consideration of Appellant?s agreement to settle her case against the tort defendants for $52,000. Appellant agreed to accept this offer and signed the settlement agreement at the conclusion of the mediation. Thereafter, Appellant allegedly refused to sign the releases drafted by the tort defendants. The trial court, upon the tort defendants? motion, enforced the settlement agreement reached by the parties at mediation. Appellees assert that Appellant?s refusal to sign the releases drafted by the tort defendants constitutes a breach of the modified fee agreement and now seek to enforce an attorney?s fee lien for the full one-third of the recovery. The trial court granted Appellees? motion to enforce its lien for the full amount, and Appellant appeals. We conclude that the terms of the modified fee agreement between Appellees and Appellant only required Appellant to settle her case with the tort defendants for $52,000, which she did. Accordingly, the trial court erred in not enforcing the modified fee agreement. Reversed in part, affirmed in part, and remanded.

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State Law Limiting Workers’ Comp to Undocumented Ruled Unconstitutional

Davidson County Chancellor Russell Perkins has ruled that a state law limiting the amount of workers’ compensation benefits that undocumented workers can receive is unconstitutional, the Associated Press reports. The decision stems from the case of a Guatemalan man whose left arm was severely injured when he fell and was run over by a lawnmower. Perkins found that the U.S. Constitution gives the federal government, not the state, the authority to set immigration policy, The Memphis Daily News reports.

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Healthcare Liability, Workers' Comp Bills See Action

The Senate sponsor of legislation to establish an administrative system for addressing healthcare liability and errors announced today that the bill (SB507 by Sen. Jack Johnson and HB546 by Rep. Glen Casada) will not receive any further consideration this year, but will be the subject of an ad hoc committee study this summer. Also today, the Senate version of a bill to create a system for allowing employers to create a private workers' compensation plan bypassing the state system (SB721 by Sen. Mark Green and HB 997 by Rep. Jeremy Durham), cleared its first hurdle in the Senate Commerce and Labor Committee by a 6-0-2 vote, with one member absent.

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Supreme Court Rules That it Ain't Whistleblowing if You Only Tell the Culprit

CHARLES HAYNES v. FORMAC STABLES, INC.
Court: TN Supreme Court

Attorneys:

Justin S. Gilbert, Chattanooga, Tennessee; Jonathan L. Bobbitt, Brentwood, Tennessee; and Jessica F. Salonus, Jackson, Tennessee, for the appellant, Charles Haynes.

James M. Glasgow Jr., Union City, Tennessee; Timothy R. Holton, Memphis, Tennessee; and Michael P. McGartland and Eugene E. Borchardt, Fort Worth, Texas, for the appellee, Formac Stables, Inc.

Robert D. Myers, Ryan M. Skertich, and Brandon D. Pettes, Memphis, Tennessee, for the amicus curiae, the Tennessee Defense Lawyers Association.

Judge: WADE

The plaintiff asserted claims for retaliatory discharge pursuant to both the common law and the Tennessee Public Protection Act, alleging that the owner of the employer had engaged in illegal conduct and had terminated the plaintiff’s employment when he acted as a whistleblower by complaining of the conduct to the owner. The trial court dismissed the plaintiff’s claims because, according to his own allegations, he had not reported the illegal activity to anyone other than the person responsible for the activity. The Court of Appeals affirmed. We hold that an employee must report an employer’s wrongdoing to someone other than the wrongdoer to qualify as a whistleblower, which may require reporting to an outside entity when the wrongdoer is the manager, owner, or highest ranking officer within the company. The judgment of the Court of Appeals is affirmed.

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Opinion: New Laws Stripping Away Citizens’ Rights to Trial

Moneyed special interests are trying to take away from Tennesseans the right to a jury trial in civil lawsuits, attorney Mark Chalos writes in an opinion piece in the Tennessean. He cites the “Civil Justice Act of 2011” as an example. “By setting arbitrary damages limits, the law overrules a jury's unanimous decision to hold wrongdoers accountable for the full harm they have caused,” Chalos says.

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Bill Would Overhaul Medical Malpractice Law

A bill creating a mandatory administrative medical malpractice liability system that would impact healthcare liability, including hospitals and nursing homes, is slated to be heard in committees in both houses of the General Assembly this week. If passed, the system would be similar to the workers' compensation system. SB507/HB546 is sponsored by Rep Glen Casada, R-Thompson Station, and co-sponsored in the Senate by Sen. Jack Johnson, R-Brentwood, and Sen. Mark Green, R-Clarksville. The TBA opposes this legislation because of its deep professional commitment to courts as the principal dispute resolution mechanism. Weigh in using TBAImpact.

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Summary Dismissal of Claim by Plaintiff Who Left Turned the Oncoming Defendant is Affirmed by the Western Section

LINDA L. BILES v. JACK W. PURCELL
Court: TN Court of Appeals

Attorneys:

Nancy Penny Harrington and Jonathan Stephen Carlton, Nashville, Tennessee, for the appellant, Linda L. Biles.

Timothy A. Glut, Nashville, Tennessee, for the appellee, Jack W. Purcell.

Judge: GIBSON

This case arises from an automobile accident between Plaintiff and Defendant. Following the accident, Plaintiff sued Defendant for negligence. The trial court granted summary judgment in favor of Defendant, finding that Plaintiff failed to offer any evidence that Defendant breached a duty of care owed to Plaintiff. Plaintiff appealed. We affirm.

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Workers’ Comp Court Launches Blog

The Tennessee Court of Workers’ Compensation Claims has launched a new blog. Created in 2013 after the legislature passed comprehensive worker’s comp reform, the court says they created the blog as a means of further communicating critical information about the new law and court, and to promote just, efficient outcomes, with an emphasis on service and courtesy toward all individuals.

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Court Requires Strict Interpretation of Civil Forfeiture Laws

The Tennessee Supreme Court ruled yesterday that the state must present evidence that it has complied with procedural and substantive requirements in civil forfeiture laws before it can seize property. In the case in question, the court found that that the state failed to present affirmative proof it complied with procedural requirements outlined in the law. It thus reversed the trial court’s decision and vacated the forfeiture in question. The court also used the case as an opportunity to emphasize that forfeiture is disfavored under Tennessee’s constitution, meaning that forfeiture statutes must be strictly interpreted. Read more about the decision or download the opinion.

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Circuit Court: State Cap on Damages Unconstitutional

Hamilton County Circuit Court Judge W. Neil Thomas ruled today that the state of Tennessee does not have a constitutional right to limit noneconomic damages in personal injury lawsuits. A 2011 state law supported by Gov. Bill Haslam, most Republicans and the business community capped “pain and suffering” damages at $750,000. Thomas’ ruling kicks off “another chapter in the complicated and long-running fight over tort reform,” the Chattanooga Times Free Press reports.

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Middle Section Holds that Wreck Involving a Self Insured Vehicle Does Not Support an Uninsured Motorist Insurance Claim

EDWARD MARTIN v. GREGORY POWERS, ET AL.
Court: TN Court of Appeals

Attorneys:

Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, Edward Martin.

Benjamin J. Miller, Nashville, Tennessee, for the appellee, Gregory Powers.

Judge: DINKINS

Holder of an automobile liability insurance policy brought suit to recover for injuries sustained after being struck by a driver in a rental vehicle. The policy holder also sought coverage under the uninsured motorist coverage provision of his policy. Insurance carrier filed answer denying coverage and moved for summary judgment, contending that the policyholder was not entitled to coverage because the vehicle involved in the incident was owned by a rental car agency and, consequently, his damages did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as required by the policy. The trial court held that the rental car agency was a self-insurer under Tennessee law and, consequently, the vehicle was not an “uninsured motor vehicle,” and granted the carrier’s motion. Policyholder appeals; finding no error, we affirm the judgment.

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