News

Miss The Annual Section CLE? Watch it On Demand

Videos from the March 17 Tort and Insurance Section CLE are now available online. Speakers include leading Medicare subrogation expert Bryan Moseley, noted author and attorney John Day, and multi-million dollar verdict winning attorney Daniel Clayton.

As a bonus, TBA Tort and Insurance Law Section members receive a section discount for these videos and all other CLE sponsored by the Tort and Insurance Law Section throughout the year.  If you know someone who is not a section member, please encourage him or her to join the Tort and Insurance Law Section today and start saving.

Here are the individual sessions available from the section CLE program:

Tort and Insurance: Medicare Reimbursement and the Secondary Payer Act

Tort and Insurance: Pre-trial Advocacy Tips

Tort and Insurance: Voir Dire

read more »

Deadbeat Dad Retains Wrongful Death Right to Commence Suit Despite Child Support Arrearage

KENNETH M. SPIRES ET AL. v. HALEY REECE SIMPSON ET AL.
Court: TN Court of Appeals

Attorneys:

Timothy A. Roberto and Ralph Brown, Knoxville, Tennessee, for the appellant, Kenneth M. Spires, o/b/o Charity Felicia Spires, deceased; Kenneth M. Spires, individually; and o/b/o Uriah T.S.[H.].

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellee, Captain Dana Trent Hensley, Jr., M.D., f/b/o Uriah T.S.[H.].

Judge: FRIERSON

The surviving spouse in this wrongful death action appeals the trial court‟s dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent‟s fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle. Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother. Upon a subsequent petition filed by the maternal grandmother and maternal uncle in the Monroe County Chancery Court, the surviving spouse‟s parental rights to the child were terminated and a decree of adoption was granted to the maternal uncle on August 8, 2012. The child‟s maternal grandmother and adoptive father subsequently filed successive motions to intervene in this action on behalf ot the child. Upon announcement of an agreement as to the settlement amount offered by the defendants‟ insurance company, the trial court entered an agreed order awarding a $100,000.00 judgment against the defendants.1 Following a bench trial regarding the remaining issues, the court found that pursuant to Tennessee Code Annotated § 20-5- 107(b), the surviving spouse was statutorily disqualified from commencing and maintaining this action or collecting any portion of a settlement because he owed outstanding child support arrearages on behalf of children born to four women other than the decedent. We determine that although Tennessee Code Annotated § 20-5-107(b) operates to prohibit the surviving spouse‟s recovery of his one-half of the settlement until his child support obligations are paid, it does not operate to disqualify him from commencing and maintaining this wrongful death action. We therefore reverse the trial court‟s dismissal of the surviving spouse as a plaintiff and the court‟s substitution of the adoptive father as an intervening plaintiff. We remand for distribution of the wrongful death settlement proceeds, one-half toward payment of the surviving spouse‟s child support arrearages with interest, pursuant to Tennessee Code Annotated § 20-5-107(b), and one-half to the minor child in trust with the adoptive father as trustee. We affirm the trial court‟s judgment in all other respects.

.PDF Version of Case

Comment on this Article

read more »

Shattering Display Case Not Foreseeable Cause of Death, per Court of Appeals

COOPER SINGLETARY, ET AL. v. GATLINBURLIER, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

Glenna W. Overton-Clark, Knoxville, Tennessee, for the appellant, Cooper Singletary.

Robert A. Crawford, Knoxville, Tennessee, for the appellees, Gatlinburlier, Inc. d/b/a Gatlinburlier Tobacconist, et al.

Judge: BENNETT

This is a premises liability action. A visitor fainted and fell into an antique, glass display case located in a retail store in Gatlinburg, Tennessee. The glass in the case shattered, piercing her chest and causing her death. Her husband sued the retail store and the mall in which it operated for negligence. The defendants filed a motion for summary judgment, which the trial court granted, finding that the injuries were not reasonably foreseeable. We affirm.

.PDF Version of Case

Comment on this Article

read more »

Confidential Settlement Reached in Erin Andrews Case

Television personality Erin Andrews reached a settlement today in her lawsuit against West End Hotel Partners and Windsor Capital Group, the hotel owner and operator that allowed a stalker to secretly record her naked though a peephole. The Tennessean reports the terms of the agreement are confidential. A Nashville jury awarded Andrews $55 million in March and said Andrews’ stalker, Michael David Barrett, was responsible for $28 million of that. Attorney Randall Kinnard, who represented Andrews, had asked the judge to hold the hotel responsible for the full $55 million. 

read more »

Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

read more »

House Civil Justice Committee Forwards Bills

The House Civil Justice Committee this week sent several bills to the House floor before it closed for the year. Among those are: changes to the conservator law, HB2030 by Rep. Jeremy Faison, R-Cosby; changes to the tolling statute for those persons who “lack capacity” were made with HB1651 by Rep. David Hawk, R-Greenville; and HB2033, also by Rep. Faison, as amended creates civil immunity for those property owners who do not post “no guns allowed” signs.

read more »

Worker's Stepson May Still Receive Benefits Following Widow's Death

The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel last week reversed a lower court ruling that could mean Ashland City-based Trinity Marine Products Inc. is still liable for payments to the estate of a worker whose widow died before receiving benefits. The widow, Marilyn Stamps, claimed her husband died from an occupational lung disease and that she and her son were entitled to workers comp benefits, Business Insurance reports. Stamps died in 2014. The Chancery Court agreed with Trinity when the company argued that the right to receive benefits terminates upon the surviving spouse’s death. The case has been remanded to the trial court.

read more »

Student Sues Anderson School Over Partially Amputated Thumb

A student at Anderson County Career and Technical Center, who reportedly had part of his left thumb amputated, filed a lawsuit against a teacher and the Anderson County Board of Education. The complaint alleges he was not properly taught and supervised how to use a grinder. The Knoxville News Sentinel reports the student is seeking compensatory damages "not to exceed the lesser or $500,000.00, or the applicable limits of liability for Anderson County."

read more »

Public Duty Doctrine Defeats GTLA Claim in Middle District

HENRY HOLT, SR., ET AL. v. CITY OF FAYETTEVILLE, TENNESSEE, ET AL.
Court: TN Court of Appeals

Attorneys:

Blair Durham and Michael B. Schwegler, Nashville, Tennessee, for the appellants, Gavin Holt, Destany Holt, Devin Gooding, Deanna Gooding, Henry Holt, Sr., Henry Holt, Jr., Monica M. Gooding, Jeffrey Gooding, and Windy Wallace.

Kristin Ellis Berexa and Laura Adams Hight, Nashville, Tennessee, for the appellees, City of Fayetteville and Fayetteville Police Department.

Judge: MCBRAYER

Plaintiffs, on behalf of themselves and a deceased family member, sued the City of Fayetteville and others for wrongful death and personal injuries resulting from an automobile accident involving a stolen police car. Plaintiffs alleged a police officer negligently failed to secure a suspect after placing her in the police car. The suspect then stole the police car, drove away at a high rate of speed, and collided with the plaintiffs‟ vehicle. The City moved to dismiss on the grounds that it was immune from suit based upon the public interest doctrine, and the trial court granted the motion. We affirm the dismissal.

.PDF Version of Case

Comment on this Article

read more »

Insurance Costs Reduction Act Deferred to Summer Study Committee

The House Insurance and Banking Subcommittee today deferred to a Summer Study Committee a bill (HB546) referred to as the Insurance Costs Reduction Act, sponsored by Rep. Glen Casada, R-Franklin. The bill is the vehicle for the creation of the Patient Compensation System, a workers' comp-like system for medical malpractice.

read more »

$10M Suit Filed Against Bus Driver Charged With Rape

A $10 million lawsuit was filed Thursday against a Hamilton County bus driver charged with the 2015 rape of a teenage student, the Times Free Press reports. The teen’s guardians are seeking the amount in punitive and compensatory damages and have requested a jury trial.

read more »

Tort and Insurance Forum Planned for March 17

The Tort and Insurance Forum, a one-day seminar, is planned for March 17 at the Tennessee Bar Center in Nashville. Topics include best practices in federal trial prep, pre-trial advocacy tips and Medicare reimbursement. The forum, scheduled from 8:30 a.m. – 4:30 p.m., provides 6.5 CLE credits and lunch will be provided. Tort and Insurance Law Section members are eligible for a discounted price.

read more »

Wrongful Death Suit Against Bar Can Proceed

Circuit Court Judge Bill Ailor ruled Friday that a $7.5 million wrongful death lawsuit against Knox County’s Bailey's Sports Grille can proceed, the Knoxville News Sentinel reports. The bar is accused of over-serving 19-year-old Evan Hall, who later crashed his vehicle into the residence of Jack Bush and his parents. Bush fatally shot Hall. T. Scott Jones and Chris W. Beavers, attorneys for Hall's parents, argued the lawsuit could only be dismissed by showing Hall did something to cause his death.

read more »

Insurer Wins DJA on Issue of Use of a Borrowed Landscape Trailer

AUTO-OWNERS INSURANCE COMPANY v. VANESSA HOLLAND, ET AL.
Court: TN Court of Appeals

Attorneys:

John J. Griffin, Jr. and Michael A. Johnson, Nashville, Tennessee, for the appellant, Auto-Owners Insurance Company.

Andy Peters Davis, Winchester, Tennessee, for the appellees, Vanessa Holland and Jezekial Valentin.

Judge: DINKINS

An insurance company which issued a commercial general liability policy to the owner of a lawn care business sought a declaratory judgment that the policy did not provide coverage for a claim brought by the parent of a child who was injured by the gate on a trailer which was used to transport lawn care equipment. The company appeals the denial of its motion for summary judgment. Having determined that the insurance policy does not provide coverage for the claim at issue, we reverse the judgment of the trial court and remand with instructions to grant summary judgment in favor of the insurance company.

.PDF Version of Case

Comment on this Article

read more »

Save the Date: Tort & Insurance Law CLE

Interested in learning about the latest updates in Tort and Insurance law? Want to learn about best practices in federal trial prep, working with mediators, and settling a case outside of court?  If so, then the TBA Tort and Insurance Law Section's Annual CLE is where you need to be on March 17, 2016.  For more information on this great CLE or to register, click here!

read more »

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.

read more »

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.

read more »

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.

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

PDF Version of Case

Comment on this Article

read more »

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.

read more »

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.

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »