News

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

read more »

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.

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

read more »

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.

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

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.

read more »

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.

read more »

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.

read more »

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.

.PDF Version of Case

Comment on this Article

read more »

Fractured Western Section Ruling Defines Limitations on Ex Parte Interviews in Med Mal Action Following Extraordinary Appeal

S. W., BY HEATHER WARREN AND THOMAS C. WARREN, AS HIS NATURAL PARENTS AND NEXT FRIENDS v. BAPTIST MEMORIAL HOSPITAL, ET AL.
With concurring opinion.
Court: TN Court of Appeals

Attorneys:

Michael L. Robb, Marcy D. Magee and Kenneth M. Walker II, Memphis, Tennessee, for the appellants, Pediatrics East, P. C. & Robert Higginbotham, M.D.

Michael McLaren, Jana Lamana, Memphis, Tennessee, for the appellants, Dr. Parvey and Diagnostic Imaging Professional Corporation.

Emily Landry and Julia Kavanagh, Memphis, Tennessee, for the appellants, Methodist Healthcare-Memphis Hospitals.

Katherine M. Anderson, and Karen Koplon, Memphis, Tennessee, for the appellants, Dr. Gilmore and Pediatric Emergency Specialists.

Richard Glassman, Robert Cox, and Lauran G. Stimac, Memphis Tennessee, for the appellees,S.W. by Heather Warren and Thomas C. Warren.

Judge: GOLDIN

This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.

.PDF Version of Case

DINKINS concurring

STAFFORD concurring

Comment on this Article

read more »

State Agency to Hold Hearing on New Securities Rule

The Tennessee Department of Commerce and Insurance will conduct a rulemaking hearing April 22 on a new rule to be known as the “Invest Tennessee Exemption.” The proposed rule would be an addition to current rules governing securities registration and exemptions. The hearing will take place at 2 p.m. Central in Conference Room 8C of the Davy Crockett Tower, 500 James Robertson Parkway, Nashville 37243. Read the full notice, which also includes the text of the proposed rule.

read more »

Tort & Insurance CLE Looks at Implicit Bias

The role of implicit bias in jury selection is one of a number of topics to be covered at the annual Tort and Insurance CLE set for Thursday in Nashville. Other sessions will include updates on premises and product liability law as well as insurance coverage and bad faith. Joshua Baker with the Tennessee Department of Labor Workforce Development also will address key highlights in workers’ compensation law. Learn more or register here.

read more »

Nashville Firm Plays Role in $100M Tobacco Settlement

A federal judge yesterday morning put a 90-day hold on all of the so-called Engle Progeny tobacco pending lawsuits in the Florida federal courts after being notified of a settlement agreement. Attorneys from the Nashville office of Lieff Cabraser have won several high-profile verdicts against cigarette manufacturers in recent months, including a $41 million verdict in October, the largest victory in the Engle cases. The Nashville Scene has more.

read more »

Bills Would Open Court Meetings, Workers' Comp Data

A number of bills filed in the legislature this year propose to open more meetings and information to the public, Knoxnews reports. Among those affecting the judicial system are HB1306 by Rep. Ron Travis, R-Dayton, and Sen. Ken Yager, R-Harriman, which would require the Tennessee Supreme Court to meet in public when selecting the state’s attorney general and SB174 by Bill Ketron, R-Murfreesboro, and Rep. Susan Lynn, R-Mount Juliet, which would make public some information on businesses’ workers compensation insurance coverage. A bill from Sen. Mike Bell, R-Riceville, which would have required the state to disclose the death of any inmate in its custody within 10 days, was withdrawn after no House companion was filed. One bill, HB1033 by Rep. Martin Daniel, R-Knoxville, and Sen. Brian Kelsey, R-Germantown, moves in the other direction, allowing notaries who do not charge for their services to avoid having to keep a record of signings they certify.

read more »

Bill Cracks Down on Uninsured Drivers After Fatal Crash

The Tennessee General Assembly has come out swinging at uninsured drivers after one of them killed an insured Memphis driver last summer, News 5 reports. Rep. William Lamberth, R-Cottontown, and Sen. Bill Ketron, R-Murfreesboro, introduced companion bills that would triple the misdemeanor fine ($100 to $300) on drivers who violate the state's financial responsibility law (proof of insurance). If passed, the legislation would also require those drivers to pay reinstatement fees on top of the fines once they secure insurance.

read more »

Western Section Rules that Secondary Auto Policy Med Pay Does Not Afford a Set Off for Primary Policy UM

DIANA L. POWELL, ET AL. V. PENNY D. CLARK
Court: TN Court of Appeals

Attorneys:

Alan M. Sowell, Nashville, Tennessee, for the appellant, Allstate Insurance Company.

Michael D. Galligan and Susan N. Marttala, McMinnville, Tennessee, for the appellees, Diana and Ronald Powell.

Judge: ARMSTRONG

This appeal involves a limitation of liability in an insurance policy. Appellant Allstate Insurance Company seeks reduction of its uninsured motorist liability by amounts paid by Appellee insured’s automobile insurance carrier. In light of the legislative intent that offsets should be limited to monies received from legally responsible parties or entities, and the limiting language used in the Allstate policy, we conclude that the trial court correctly denied the offset in this case. Affirmed and remanded.

.PDF Version of Case

Comment on this Article

read more »

ABA House Acts on Range of Issues

The ABA House of Delegates met Monday in Houston, adopting a number of resolutions, including: (1) calling for counsel to be appointed to unaccompanied minor immigrants and special training be provided to courts that hear their cases, (2) opposing stand-your-ground laws, (3) condemning foreclosure rescue fraud, (4) urging states to grant protective orders even though a victim and perpetrator have no established domestic relationship, (5) requiring a unanimous jury verdict before imposing the death penalty, (6) calling for open and transparent disclosure of execution protocols, (7) urging governments to adopt a presumption against the shackling of juveniles in court, and (8) urging law schools and bar associations to counsel young attorneys on student loan debt. The body considered but sponsors ultimately withdrew resolutions calling for federal regulation of paid tax preparers and stronger laws to protect the privacy of consumer data.

read more »

A Covenant Not to Sue Is Not a Release, per the Eastern Section in an Action for Insurance Coverage Reversing Dismissal

JOY LITTLETON, ET AL. v. TIS INSURANCE SERVICES, INC.
Court: TN Court of Appeals

Attorneys:

Robert B. Littleton, Nashville, Tennessee, and Robert R. Kurtz, Knoxville, Tennessee, for the appellants, Joy Littleton, Grayling Littleton, and Will Allen Hildreth, as assignees of Merit Construction, Inc.

Barry L. Howard, Nashville, Tennessee, for the appellee, TIS Insurance Services, Inc.

Judge: MCCLARTY

During a prior lawsuit, a construction company – in exchange for a covenant not to execute against the company’s assets – assigned to the entity that obtained a judgment against it the company’s insurance coverage claims. The plaintiffs in the previous action thereafter assigned those rights to the current plaintiffs to allow them to step into the shoes of the construction company and bring suit against the insurance broker. The trial court entered judgment on the pleadings in favor of the insurance broker on the ground that the current plaintiffs would not be entitled to recover any compensatory damages at trial. The plaintiffs appeal. We reverse.

.PDF Version of Case

Comment on this Article

read more »

Middle Section Affirms Trial Court's Finding That Summary Judgment in Performance Bond Dispute Was Premature

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. CITY OF SOUTH PITTSBURG, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Jarrod W. Stone, Nashville, Tennessee, for the appellant, Travelers Casualty and Surety Company of America.

William L. Gouger, Jr., Jasper, Tennessee, for the appellee, City of South Pittsburg, Tennessee.

Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the appellee, Bituminous Casualty Corporation.

Judge: DINKINS

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a party and moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

.PDF Version of Case

Comment on this Article

read more »