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West Section Agrees with Med Mal Plaintiff that Locality Rule was Misapplied--Then Finds Harmless Error

BRITTANY EVANS, By and Through Her Attorney-in-Fact, MARY EVANS, Her Natural Mother v. JENNIFER WILLIAMS, ET AL.
Court: TN Court of Appeals

Attorneys:

Euel W. Kinsey, Detroit, Michigan, for the appellant, Mary Evans.

Dixie W. Cooper and Chris Tardio, Nashville, Tennessee, for the appellees, Jennifer Williams and James L. Williams, II

Judge: FARMER

This is a health care liability action appeal.1 The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

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Mixed Ruling in Suit Against State Farm and Agent Failing to Increase Coverage Over Time

TEVEN BARRICK and JANICE BARRICK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and THOMAS HARRY JONES
Court: TN Court of Appeals

Attorneys:

William D. Leader, Jr., and Paul J. Krog, Nashville, Tennessee, for the appellants, Steven and Janice Barrick.

Brigid M. Carpenter, Nashville, Tennessee, for the appellees, State Farm Mutual Automobile Insurance Company and Thomas Harry Jones.

Judge: ASH

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.

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New Law Leads Lawsuit Loan Company to Leave State

A new Tennessee law targeting loans to finance the costs of lawsuits is leading an Illinois company to leave the state, WDEF reports. Oasis Legal Finance, one of the country’s largest consumer legal funding services, issues loans to consumers while they wait for settlements in their case. The company announced it is leaving the Tennessee market as the law goes into effect this week.

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Mystery Fall Outside Memphis Airport Results in Approval of Summary Judgment by Western Section

WILLIE CAMPBELL & ULYSSES CAMPBELL, SR. v. MEMPHISSHELBY COUNTY AIRPORT AUTHORITY
Court: TN Court of Appeals

Attorneys:

Gerald S. Green, Memphis, Tennessee, for the appellants, Willie Campbell and Ulysses Campbell, Jr.

James Creswell, Jr., David I. Feigelson, Memphis, Tennessee, for the appellee, Memphis- Shelby County Airport Authority

Judge: HIGHERS

This case involves a plaintiff who fell outside the Memphis International Airport and sued the Airport Authority for negligence. The trial court granted summary judgment to the defendant Airport Authority, finding, based on the undisputed facts, that the plaintiffs and their witnesses are unable to identify what caused the fall. Plaintiffs appeal. We affirm and remand for further proceedings.

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Eastern Section Tackles Odd Property Loss Case Following Property Condemnation

GEORGE HUTSELL v. JEFF KENLEY D/B/A TRADEMARK INVESTMENTS
Court: TN Court of Appeals

Attorneys:

Joshua M. Ball and Kristi M. Davis, Knoxville, Tennessee, for the appellant, Jeff Kenley d/b/a Trademark Investments.

William M. Leibrock, Newport, Tennessee, for the appellee, George Hutsell.

Judge: FRIERSON

This case presents issues regarding the propriety of the trial court’s rulings on evidentiary issues as well as a motion for directed verdict. The plaintiff sustained damages when his personalty, which was stored in a warehouse owned by the defendant, was subjected to water damage after the roof of the warehouse collapsed. The plaintiff filed the instant action seeking compensatory damages for the value of his damaged property. Prior to trial, the trial court ruled that the plaintiff could present evidence that the defendant also filed a claim with respect to his own damaged property stored in the warehouse. The trial court ruled, however, that the defendant would not be allowed to present evidence regarding the profitability of the plaintiff’s business. During the three-day trial, the defendant made a motion for directed verdict that was denied by the trial court. Following deliberations, the jury returned a verdict, finding the defendant to be 100% liable for the plaintiff’s loss and awarding damages to the plaintiff of $325,000. The defendant filed a renewed motion for directed verdict, a motion for new trial, and a motion for remittitur. All of the post-trial motions were denied by the trial court. The defendant appeals. Having determined that the trial court committed reversible error by allowing the plaintiff to present prejudicial evidence regarding the defendant’s own claim for damages, we vacate the jury’s award and remand for a new trial.

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Batting .500 is not Good for Med Mal Plaintiff-Eastern Section Rejects Strict Complaisance with Pre-Suit Notice but Affirms Dismissal Based on Statute of Limitations

CLAYTON ARDEN, SURVIVING SPOUSE OF DEBORAH ARDEN, DECEASED v. KENYA I. KOZAWA, M.D. ET AL.
Court: TN Court of Appeals

Attorneys:

Donna Keene Holt and G. Turner Howard, III, Knoxville, Tennessee, for the appellant, Clayton Arden.

Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Kenya I. Kozawa, M.D., and Ken Kozawa, M.D., P.C.

Gary G. Spangler and Carrie S. O’Rear, Knoxville, Tennessee, for the appellee, Sweetwater Hospital Association.

Judge: FRIERSON

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’ motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

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Plaintiff is Not "Upon" Car for UM Purposes, Per Western Section

JERRY BEECH v. JOHN DOE
Court: TN Court of Appeals

Attorneys:

L. “Rocky” McElhaney, L. Russell Belk, Jr.,, Nashville, Tennessee, for the appellant, Jerry Beech

Alan M. Sowell, Nashville, Tennessee, for the appellee, Great West Casualty Company

Judge: HIGHERS

The plaintiff in this case brought suit to recover uninsured motorist benefits. The insurance company moved for summary judgment contending that the plaintiff was not entitled to coverage because he was not “upon” the insured vehicle so as to “occupy” it. The trial court granted summary judgment in favor of the insurance company and we affirm.

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Eastern Section Affirms Yet Another Bradley County Verdict Against Insurer Under TCPA

CLEVELAND CUSTOM STONE, ET. AL. v. ACUITY MUTUAL INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Stuart F. James, Chattanooga, Tennessee, for the appellant, Acuity Mutual Insurance Company.

Robert G. Norred, Jr. and Matthew G. Coleman, Cleveland, Tennessee, for the appellees, Cleveland Custom Stone, Inc. and Steve’s Stone Works.

Judge: MCCLARTY

This case concerns Acuity’s refusal to pay insurance proceeds to Plaintiffs, who filed suit, alleging negligence, breach of contract, bad faith refusal to pay, and violations of the Tennessee Consumer Protection Act, codified at Tennessee Code Annotated section 47-18- 101, et. seq. The case proceeded to jury trial. The jury awarded Plaintiff compensatory damages and found that Acuity’s failure to pay was in violation of the Tennessee Consumer Protection Act. The jury declined to award punitive damages. Likewise, the trial court affirmed the verdict but did not treble the damages. Acuity appeals. We affirm.

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Sealed Container Doctrine Proves Fatal in Cause of Action Against Tainted Oyster Middlemen

AARON BISSINGER, ET AL. v. NEW COUNTRY BUFFET, ET AL.
Court: TN Court of Appeals

Attorneys:

Kathryn Elaine Barnett, Christopher Eric Coleman, Jonathan Lewis Williams, Kenneth Sherman Byrd, Nashville, Tennessee, for the appellant, Aaron Bissinger, Executor of the Estate of Randall Bissinger, Deceased.

Warren Maxey Smith, Harold Richard Donnelly, Jack Paul Brewer, Judith Elizabeth Lojek, Nashville, Tennessee; David Jackson Sneed, Franklin, Tennessee for the appellees, New Country Buffet, Shao Chai Chen, individually and d/b/a New Country Buffet, Gulf Pride Seafood of Franklin, LLC, Leavins Seafood, Inc., Bon Secour Fisheries, Inc.

Judge: COTTRELL

A man who suffered a blood infection after eating raw summer oysters at a Nashville restaurant filed suit against the restaurant, claiming that the oysters were contaminated because they were kept at an improper temperature. The restaurant owner answered, and among other things he named three companies in the supply chain that furnished the oysters to the defendant restaurant as possibly liable under the doctrine of comparative fault. The plaintiff subsequently died, and his executor was substituted as plaintiff. The executor filed an amended complaint that added the suppliers as defendants, and included claims against all the defendants of negligence, negligence per se, product liability, and breach of warranty. All the parties filed motions for summary judgment. The trial court denied the defendant restaurant’s motion for summary judgment, but it granted summary judgment to the defendant suppliers on all issues except failure to warn. After studying the voluminous record in this case, we affirm all the trial court’s rulings on the summary motions against the restaurant. We affirm the trial court’s grant of summary judgment to the suppliers, and reverse the denial of summary judgment to them for failure to warn.

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But What of Benson v Herbst? Western Section Reject's Hospital's Attempt to Confess GS Judgment

SHONTEL S. ROSS, Individually and on behalf of Terry Wilson, III (a minor) v. DEIDRA L. GRANDBERRY, M.D., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Bryan Smith, Memphis, Tennessee, for the appellant, Shontel S. Ross

Buckner Wellford, Shannon L. Wiley, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals, Inc.

Judge: HIGHERS

Plaintiff filed a healthcare liability action in the general sessions court. At a docket call, defendant Methodist appeared and tendered a confession for the full $25,000 jurisdictional limit of the general sessions court. Plaintiff immediately sought to non-suit her claims against Methodist. The general sessions court denied Methodist’s tendered confession and it entered an order non-suiting Methodist. Plaintiff then refiled her suit against Methodist in the circuit court and Methodist moved for summary judgment based upon its tendered confession of judgment in the general sessions court. The circuit court granted summary judgment in favor of Methodist. We reverse the circuit court’s grant of summary judgment and we remand for further proceedings.

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Summary Judgment Reversed by Eastern Section: "Whole lot of spoliatin' goin' on!"

GRIFFITH SERVICES DRILLING, LLC, ET AL. v. ARROW GAS & OIL, INC.
Court: TN Court of Appeals

Attorneys:

Christopher P. Capps, Morrestown, Tennessee, and Max D. Picklesimer, Nicholasville, Kentucky for the appellants, Griffith Services Drilling, LLC and Lexington Insurance Company.

W. Bryan Brooks and Alisha M. Toll, Nashville, Tennessee, for the appellee, Arrow Gas & Oil, Inc.

Judge: SWINEY

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.

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Lack of Notice by Landowner Results on Western Section Affirming Dismissal via Summary Judgment

ARCHIE WOLFE v. WILLIAM C. FELTS, JR. ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas and Joshua D. Thomas, Memphis, Tennessee, for the appellant, Archie Wolfe.

James E. Conley Jr., Memphis, Tennessee, for the appellees, William C. Felts, Jr., and Linda M. Felts.

John H. Dotson, Memphis, Tennessee, for the appellees, Richard Johnson, Rebecca Lynn Johnson, and Empire Hair Studios, L.L.C.

Judge: STAFFORD

In this premises liability action, Plaintiff/Appellant was allegedly injured when he slipped and fell on the subject property. The trial court granted a directed verdict to the Appellees, who are the property owners/occupiers. The basis for the directed verdict was that Appellant failed to submit evidence from which a reasonable juror could conclude either that the Appellees knew or should have known of a dangerous condition on the property, or that Appellees caused or created a dangerous condition on the property. Discerning no error, we affirm.

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Auction Malpractice Action Results in Verdict that is Affirmed--for $474.00

JAMES G. AKERS v. MCLEMORE AUCTION COMPANY, LLC, ET AL.
Court: TN Court of Appeals

Attorneys:

James G. Akers, Nashville, Tennessee, Pro Se.

Paul Richard White and Charles W. Cross, Nashville, Tennessee, for the appellees, McLemore Auction Company, LLC, and William T. McLemore.

Judge: DINKINS

Plaintiff in action to recover for negligence, professional negligence, breach of duty, constructive fraud, constructive breach of contract, and inducement of failure to perform a lawful contract, appeals dismissal of various parties and claims; plaintiff also appeals a portion of the jury instructions, the jury’s verdict awarding him $474.00, and the denial of his motion for a new trial. We affirm the trial court’s judgment.

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Premise Case Fails for Want of Duty

DEBORAH R. SMITH v. JOHN P. STANLEY, ET AL.
Court: TN Court of Appeals

Attorneys:

Richard E. Collins, Knoxville, Tennessee, for the appellant, Deborah R. Smith.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellees, John P. Stanley and Dinah Stanley.

Judge: SWINEY

Deborah R. Smith (“Plaintiff”) sued John P. Stanley and Dinah Stanley (“Defendants”) with regard to injuries Plaintiff suffered when she fell down stairs while visiting a cabin (“the Cabin”) owned by Defendants. Defendants filed a motion for summary judgment. After a hearing, the Circuit Court for Sevier County (“the Trial Court”) granted Defendants summary judgment after finding and holding that Defendants owed no duty to Plaintiff. Plaintiff appeals the grant of summary judgment. We find and hold, as did the Trial Court, that there are no genuine disputed issues of material fact, and that Defendants have shown that Plaintiff cannot establish an essential element of her claim, specifically duty. We, therefore, affirm the grant of summary judgment.

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Despite Directed Verdict on Negligence, Verdict for Zero Withstands Appellate Review

KRISTINA KAY KLAMBOROWSKI, ET AL. v. JASON S. JOHNSON, ET AL.
Court: TN Court of Appeals

Attorneys:

J. P. Barfield, Nashville, Tennessee, for the appellant, Kristina Kay Klamborowski

Herbert J. Sievers, III, Nashville, Tennessee, for the appellee, Allstate Property and Casualty Insurance Company

Judge: HIGHERS

Plaintiff filed suit after she allegedly sustained injuries in an automobile accident. A jury trial was held, and at the close of Plaintiff’s proof, a verdict was directed in Plaintiff’s favor as to the liability of Defendant. However, the jury returned a verdict in favor of Plaintiff for zero dollars. Plaintiff filed a motion for additur or a new trial, which the trial court denied. We affirm the judgment of the trial court.

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8 Judges Named to New Workers’ Comp Court

Eight judges were appointed today to the recently formed Workers’ Compensation Court by the Tennessee Department of Labor and Workforce Development. The court was created by the comprehensive workers’ compensation law passed by the General Assembly in 2013. Brian Addington of Kingsport, Joshua Baker of Nashville, Lisa Knott of Knoxville, Pamela Johnson of Knoxville, Allen Phillips of Jackson, Jim Umstead of Memphis, Thomas Wyatt of Chattanooga and Ken Switzer of Nashville will begin work prior to July 1, when the law goes into effect. Switzer will be the court’s chief judge, the Nashville Business Journal reports.

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TBJ Columns Cover Electronic Surveillance, 'McCutcheon' and More

Columns in the May Tennessee Bar Journal include electronic surveillance in family law by Marlene Moses and Benjamin Russ; Tenn. Code Ann. §20-1-119 and its relationship with the federal courts by John Day; and the late Don Paine wrote about convicted murderer Paul Dennis Reid Jr. Bill Haltom explains how the "McCutcheon" case makes the phrase "free speech" into an oxymoron.

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Saying You're Sorry Doesn't Always Mean You're Sorry--Eastern Section Affirms MVA Defense Verdict

LEONA RUTH SALYER, ET. AL. v. COURTNEY L. LINNEN
Court: TN Court of Appeals

Attorneys:

Thomas C. Jessee and Thomas D. Dossett, Kingsport, Tennessee, for the appellants, Leona Ruth Salyer and Jack Salyer.

Jack M. Vaughn and Cory Swainston, Kingsport, Tennessee, for the appellee, Courtney L. Linnen.

Judge: MCCLARTY

is is a personal injury action in which Plaintiff sued Defendant for injuries she sustained as a result of a two-vehicle accident. The jury found the parties equally at fault, and the trial court affirmed the jury’s verdict. On appeal, Plaintiff argues that the verdict was contrary to the weight of the evidence and that the trial court erred in limiting testimony concerning Defendant’s acceptance of fault at the scene of the accident. We affirm.

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Fungal Meningitis Victims to Share $100M National Settlement

The compounding pharmacy responsible for a deadly fungal meningitis outbreak in 2012 that sickened 153 Tennesseans and killed 16 has finalized a plan to compensate families. The compounding center is putting in $50 million, its insurance company is adding $25 million and a tax refund and sale of an affiliated company make up the rest of the $100 million settlement. Nashville attorney Ben Gastel, who represents the collective plaintiffs, says families are lucky to get much at all since the Massachusetts pharmacy declared bankruptcy after the outbreak. His firm is still working on other lawsuits that target Saint Thomas Hospital, which housed the pain clinic responsible for a majority of the infections. Nashville Public Radio has the story.

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Don't Sue Your Future In-Laws When You Slip on a Rock in Their Yard, per Eastern Section

PETROS GOUMAS v. JIMMY MAYSE ET AL.
Court: TN Court of Appeals

Attorneys:

Carol Ann Barron, Dayton, Tennessee, for the appellant, Petros Goumas.

Paul Campbell, III, Chattanooga, Tennessee, for the appellees, Jimmy Mayse and Barri Mayse.

Judge: SUSANO

The issue in this slip-and-fall premises liability case is whether the trial court correctly granted summary judgment to the defendants. Petros Goumas (“plaintiff”), the fiancé of the daughter of defendants Jimmy Mayse and wife, Barri Mayse, was staying at the defendants’ house for an extended visit. Plaintiff was working outside in the yard, helping to clear away dead brush and trees from the property, when he stepped on a rock, slipped, fell, and broke his arm. The trial court held that plaintiff presented no proof that the rock (1) was in any way unusual or posed any particular danger, (2) was hidden or concealed, or (3) created any kind of defective or dangerous condition. The court concluded that there was no proof of a known or foreseeable unreasonable risk of injury created by the condition of defendants’ property. Consequently, the court held, as a matter of law, that defendants owed no duty to plaintiff. He appeals. We affirm.

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Pre-suit Notice to State Deemed Sufficient in Med Map Suit Before Claims Commission, per Eastern Section

FELISHA BROWN ET AL. v. KAREN L. SAMPLES ET AL.
Court: TN Court of Appeals

Attorneys:

Joshua R. Walker, Knoxville, Tennessee, for the appellant, State of Tennessee.

Robert E. Pryor, Jr., Knoxville, Tennessee, for the appellees, Felisha Brown and Donald Brown, individually and as parents and next of kin of Silas Brown, deceased.

Judge: SUSANO

This is a medical malpractice action brought against the State of Tennessee 1 and others. The issue as to the appealing State is whether the plaintiffs complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 (2012 & Supp. 2013). The State argues that the plaintiffs were required to send the pre-suit notice applicable to their claim against the State to either (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. The Tennessee Claims Commission denied the State’s motion to dismiss, finding (1) no statutory authority requiring that pre-suit notice as to the State be served upon one of the parties alluded to by the State, and (2) that the State received adequate pre-suit notice in this case. We affirm and hold that the plaintiffs complied with Section 121’s pre-suit notice requirements by providing notice to the University of Tennessee Graduate School of Medicine, a health care provider, which entity is a division of an agency of the State of Tennessee and also a named defendant in this case.

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Med Mal Dismissal Reversed Due to Substantial Compliance and Lack of Prejudice by State Supreme Court

RICHARD THURMOND v. MID-CUMBERLAND INFECTIOUS DISEASE CONSULTANTS, PLC ET AL.
CORRECTION: On pages 4, 7, 10 and 12 of the opinion, "HIPAA" has been substituted for "HIPPA".
Court: TN Supreme Court

Attorneys:

Henry S. Queener, Nashville, Tennessee, for the appellant, Richard Thurmond.

Suzanne M. Pearson, Dan L. Nolan, and Erik Fuqua, Clarksville, Tennessee, for the appellees, Mid-Cumberland Infectious Disease Consultants, PLC, and Simi Vincent, M.D.

W. Bryan Smith, Memphis, Tennessee, for the amicus curiae, Tennessee Association for Justice.

Judge: CLARK

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute. Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.

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Health Care, Insurance Associate Sought in Memphis

A Memphis law firm has an immediate opening for an associate attorney with two to six years experience to work in the areas of health care law and insurance defense. A Tennessee bar license is required and a Mississippi license is preferred. The firm reports that the opening is an excellent opportunity for professional growth in a unique work environment. Submit cover letter and resume to memphistnlawfirm@gmail.com. Learn more in this job description.

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To What Extent are Personal Injury Proceeds Part of a Marital Estate When the Divorce Hits? The Western Section Clarifies

MELINDA JAN METZINGER v. RONALD WAYNE METZINGER
Court: TN Court of Appeals

Attorneys:

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Ronald Wayne Metzinger

Albert Wade, Jr., Paris, Tennessee, for the appellee, Melinda Jan Metzinger

Judge: HIGHERS

This appeal involves the classification and division of Husband’s $66,000.00 personal injury settlement in a divorce proceeding. The trial court classified the settlement as marital property, it deducted $13,400.00 for what it found to be “legitimate expense[s] of the marriage” paid by Husband, and it awarded Wife one-half of the balance, or $26,300.00. We reverse the trial court’s award to Wife.

The Court cited the following statute as determinative:
(C) “Marital property” includes recovery in personal injury . . . for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
Tenn. Code Ann. 36-4-121(b)(1)(A), (C).

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To What Extent are Personal Injury Proceeds Part of a Marital Estate When the Divorce Hits? The Western Section Clarifies

MELINDA JAN METZINGER v. RONALD WAYNE METZINGER
Court: TN Court of Appeals

Attorneys:

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Ronald Wayne Metzinger

Albert Wade, Jr., Paris, Tennessee, for the appellee, Melinda Jan Metzinger

Judge: HIGHERS

This appeal involves the classification and division of Husband’s $66,000.00 personal injury settlement in a divorce proceeding. The trial court classified the settlement as marital property, it deducted $13,400.00 for what it found to be “legitimate expense[s] of the marriage” paid by Husband, and it awarded Wife one-half of the balance, or $26,300.00. We reverse the trial court’s award to Wife.

The Court cited the following statute as determinative:
(C) “Marital property” includes recovery in personal injury . . . for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
Tenn. Code Ann. 36-4-121(b)(1)(A), (C).

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