News

Computer Forensics for Lawyers

On Aug. 2, Lars Daniel with Guardian Digital Forensics in Raleigh will present a special CLE webcast on computer forensics. He will use real life examples to show how forensic artifacts recovered from computers are used in legal cases. Other topics will include best practices in data collection, understanding deleted data, challenging digital evidence and expert testimony. If you cannot join the webcast live, the program will be available on the website for up to one year. Learn more or register here.

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Mitchell: Frivolous Lawsuit Bill May Discourage Abuse Claims

Rep. Bo Mitchell, D-Nashville, has announced that he is filing legislation to repeal a new law that was intended to prevent frivolous lawsuits, Humphrey on the Hill reports. Mitchell argues that the law could be used to discourage sexual abuse claims. “Under this new law, should you sue the state and a state employee and lose, you could be forced to pay their attorney’s fees,” Mitchell said. “Not all lawsuits are successful, but that doesn’t mean that they are frivolous.”

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'Pokemon Go' Raising Thorny Legal Issues

Pokemon Go is taking the country by storm. But with imaginary characters waiting to be “caught” on both public and private property, the game is “raising legal issues and public safety concerns.” Press headlines indicate people are injuring themselves and others in pursuit of the game, while private property owners are dealing with players swarming their land. The game’s terms of service disclaim liability for property damage, personal injury or death occurring while playing but thorny legal issues no doubt await. The ABA Journal has links to several legal articles on the issue.

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Court: Bankruptcy No Shield for GM Ignition Switch Claims

The U.S. Second Circuit Court of Appeals today struck down bankruptcy decisions that shielded General Motors from liability related to ignition switch defects, Reuters reports. The court found that a 2009 sale of the automakers’ assets, which provided the company with legal cover, violated potential victims’ rights to due process. The ruling effectively rebuffs GM’s attempts to block hundreds of customer lawsuits over faulty ignition switches that led to criminal charges and prompted the recall of 2.6 million vehicles in 2014.

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Under Particular Facts, Premises Liability Action of Deceased Independent Security Guard After Gun Death Fails Against Apartment Complex Owner

THE ESTATE OF BLAKE B. CUNNINGHAM, BY AND THROUGH BARBARA CUNNINGHAM v. EPSTEIN ENTERPRISES LLC, ET AL.
With concurring opinion.
Court: TN Court of Appeals

Attorneys:

Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellant, Barbara Cunningham.

Lacey L. Adair, Richard Glassman and Whitney Boshers Hayes, Memphis, Tennessee, for the appellees, Epstein Enterprises, LLC, and Louis and William Epstein, LP.

Judge: MCBRAYER

In this premises liability case, the plaintiff appeals from the trial court’s grant of summary judgment in favor of the defendants, the manager and owner of an apartment complex. The trial court concluded that the defendants owed no duty to a security guard, who was fatally shot while working at the apartment complex. Although a premises owner generally owes a duty to provide independent contractors with a safe workplace, under the facts of this case, we conclude that the defendants owed no duty to protect the security guard from the criminal acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment in favor of the defendants. Additionally, we affirm the award of discretionary costs to the defendants.

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Concurring Opinion

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Tort Victims Not Allowed to Intervene Onto Tort Defendant's Wrongful Death Case Against Government

CHRISTOPHER J. WHITE, ET AL. v. LISA M. JOHNSON, ET AL. v. CITY OF MEMPHIS, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Lenal Anderson Jr., Memphis, Tennessee, for the appellants, Christopher J. White, and Angelique Marie White.

Howard B. Manis and Andrew C. Clarke, Memphis, Tennessee, for the appellees, Lisa M. Johnson and Sherkita Lockhart.

Judge: STAFFORD

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

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New Litigation Courses Now Available Online

Online CLE programs offering insight into a range of litigation matters are now available online. Sessions cover med-mal updates, third party reviews, the ethical use of social media and effective deposition strategies. Check these courses out at the links above.

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Tennessee Eligible for $55M from VW Settlement

Volkswagen will pay $570 million to compensate American consumers and buy back or fix falsely-marketed diesel vehicles, the Tennessee Attorney General announced today. Under the deal, car owners in Tennessee will be eligible to receive $12.6 million. Volkswagen also will spend $2.7 billion on programs to reduce nitrogen oxide, $2 billion to develop zero-emission cars and $20 million to compensate states for their legal costs and pay for future investigations into emissions violations. The settlement ends a multistate action brought by 43 state attorneys general on grounds that Volkswagen sold more than 570,000 diesel vehicles in the United States with devices intended to circumvent emissions standards. Learn more about submitting a claim.

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Judge Seeks to Dismiss Baptist Healing's Pensions Suit

Federal Magistrate Judge Joe Brown is recommending that Baptist Healing Trust's suit against Pension Benefits Guaranty Corp. be dismissed, noting that 2,000 Baptist Healing pensioners will have have no recourse to recover their pensions if the case proceeds. Baptist Healing, which sold most of its assets to Ascension Health, claims the hospital is exempt from federal regulation because the Employment Retirement Income Security Act contains an exemption for "church plans.” Read more from the Nashville Post

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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Insured Keeps Fire Verdict But Loses Punitives and Bad Faith Penalty in Court of Appeals

JUDY LANCE d/b/a J&B DISCOUNT v. OWNER’S INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

N. Mark Kinsman, Hixson, Tennessee, and Gaëtan Gerville-Réache, Grand Rapids, Michigan, for the appellant, Owners Insurance Company.

Robert G. Norred, Cleveland, Tennessee, for the appellee, Judy Lance d/b/a J&B Discount.

Judge: MCCLARTY

This is a breach of insurance contract action for failure to remit payment pursuant to a business-owners policy after the subject property was destroyed by fire. The case proceeded to jury trial. After denying the insurance company's motion for a directed verdict, the court submitted the case to the jury. The jury found that the plaintiff was entitled to recover under the policy and awarded compensatory and punitive damages and prejudgment interest. The jury also imposed a bad faith penalty and damages pursuant to the Tennessee Consumer Protection Act. The insurance company appeals. We affirm in part and reverse in part.

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Jury Awards $2M to Conductor Struck by Train

A jury this week awarded railroad conductor Shawn Hall more than $2 million after he was struck by a train in Shelby County, even after determining that Hall was 50 percent responsible for the accident. Hall, who lost part of his leg and fractured both of his arms in the accident, argued Illinois Central Railroad Company was negligent because it failed to warn him of the unscheduled train that hit him. Read more from The Commercial Appeal

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Wearable Tech May Aid in Personal Injury Claims

“In the world of personal injury law wearable tech may become a pivotal element in bringing justice to those who have become victims,” according to Law Technology Today. The article explores the use of items like Smartwatches when making a personal injury claim, along with the possible issues that could arise from misusing the technology.  

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We Are Looking for a Few Good Lawyers to Join the TBA Tort & Insurance Law Section Executive Council!

The TBA Tort & Insurance Law Section Executive Council are looking for individuals who would like to join the executive council and assist with the development of the section's CLE program, discussing and providing opinions on potential legislation that may be brought up during the legislative session, and producing news to the section.

If you are intested in joining the Executive Council, please contact me via email by Friday, June 10, 2016.  Please put TBA TORT & INSURANCE LAW SECTION EXECUTIVE COUNCIL in the Subject line of your email.  Your information will then be submitted to the Executive Council for review.

If you have any questions, please feel free to contact me. We look forward to you joining the Executive Council!

 

-- Christy Gibson, TBA Tort & Insurance Law Section Coordinator

 

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School Board Approves Settlement Following Leaked Student Information

The Williamson County School Board approved last night a $36,500 counter settlement to a pending lawsuit, The Tennessean reports. The counter settlement came in response to the threat of a lawsuit that alleges a special needs student suffered from leaked student information and the board's reaction to a school fight.

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Res Ipsa Fails to Salvage Suit for Elevator Occupant Who Fell

KARLA J. DENNIS, ET AL. v. DONELSON CORPORATE CENTRE I, LP, ET AL.
Court: TN Court of Appeals

Attorneys:

Tim L. Bowden, Goodlettsville, Tennessee, for the appellants, Karla J. Dennis and Stanley Dennis.

T. Tamara Gauldin, Atlanta, Georgia, for the appellee, Nashville Machine Elevator Co., Inc.

Judge: ARMSTRONG

This is a negligence case. Appellee, an elevator maintenance company, contracted with building owner to provide maintenance service for the building‟s elevators. Plaintiff was injured when one of the elevators allegedly did not level properly, causing her to fall as she was exiting the elevator. Plaintiff and her husband brought suit against the building's owner, the building's management company, and Appellee. Appellee filed a motion for summary judgment, which the trial court granted. Appellants appeal.

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Journal Columns Cover Family Law, Torts, Mentoring

If you are looking for some weekend reading, catch up on the Tennessee Bar Journal columns that are in this month's issue. Marlene Eskind Moses and Benjamin Russ explain Qualified Domestic Relations Orders and state/local government pensions; John Day writes about surviving spouses and wrongful death claims; and TBA President Bill Harbison explains how important mentor relationships can be. Bill Haltom recalls two mentors he and his family lost recently, Howard and Claude Swafford -- his "two favorite courthouse square lawyers."

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Court Rules Health Care Subsidies Unconstitutional

A federal judge today ruled that the administration is unconstitutionally subsidizing medical bills for millions of people while ignoring congressional power over government spending, WSMV reports.  The ruling from U.S. District Judge Rosemary Collyer was a win for House Republicans who brought the politically charged legal challenge in an effort to undermine Obama-backed health care reforms. At issue is the $175 billion the government is paying to reimburse health insurers over a decade to reduce deductibles and co-payments for lower-income people.

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Court of Appeals Affirms Summary Judgment in Auto Store Slip and Fall Case

CAROL MOONEY, ET AL. v. GENUINE PARTS COMPANY d/b/a NATIONAL AUTOMOTIVE ASSOCIATION, INC. (“NAPA”), ET AL.
Court: TN Court of Appeals

Attorneys:

J. Mark Patey, Jackson, Tennessee, for the appellants, Carol Mooney and Joey Mooney.

Brian Kirk Kelsey, Collierville, Tennessee, for the appellees, Genuine Parts Company d/b/a National Automotive Association, Inc. (“NAPA”), Genuine Parts Company d/b/a NAPA Auto & Truck Parts/NAPA Auto Parts Store #07038, and Wayne Climer.

Judge: GIBSON

This appeal arises out of a premises liability case involving a plaintiff who fell while exiting an auto parts store. The trial court granted the defendants? motion for summary judgment. We affirm and remand for further proceedings.

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False Light Invasion of Privacy Claim of Judge Dismissed for Want of Sufficient Proof of Actual Malice

DANIEL B. EISENSTEIN v. WTVF-TV, ET AL.
Court: TN Court of Appeals

Attorneys:

Robert L. Delaney, Nashville, Tennessee, for the appellant, Daniel B. Eisenstein.

Jon D. Ross and Ronald George Harris, Nashville, Tennessee, for the appellees, WTVF-TV, News Channel 5 Network, LLC, Sandy Boonstra, and Phil Williams.

Judge: BENNETT

On remand from a prior appeal, the parties engaged in discovery and the defendants then moved for summary judgment on the two remaining issues – claims of false light invasion of privacy against a television station and its employees. The trial court granted the motion, finding that the standard of actual malice was not met and awarding discretionary costs against the plaintiff. The plaintiff appealed. We affirm.

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AG: Settlement Reached with Pharmaceutical Company

Attorney General Herbert H. Slatery III announced on Friday that Tennessee reached a $784.6 million settlement with Wyeth, a wholly owned subsidiary of Pfizer Inc. The settlement will resolve allegations that Wyeth knowingly underpaid rebates owed under the Medicaid Drug Rebate Program for the sales of Protonix Oral and Protonix IV between 2001 and 2006. Tennessee will receive an estimated $30.4 million under the settlement.  

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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

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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.

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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.

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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. 

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