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GTLA Win by a Whisker is Upheld by Eastern Section in Premises Case

MARGIE R. HUSKEY ET AL. v. RHEA COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Arthur F. Knight, III, and Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Rhea County, Tennessee.

Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Margie R. Huskey and Norman Huskey.

Judge: FRIERSON

In this negligence action, the trial court, following a bench trial, found the defendant 51% at fault and the plaintiff 49% at fault for a severe injury plaintiff, Margie R. Huskey, suffered to her left arm at the Rhea County Convenience Center. The trial court assessed total compensatory damages at $298,376.65, which it reduced by 49%, awarding $152,172.09 to Ms. Huskey. The court further assessed damages of $25,000.00 for loss of consortium in favor of plaintiff, Norman Huskey, which it likewise reduced by 49%, awarding $12,750.00. The County raises three issues on appeal: (1) whether the trial court erred by finding the County liable for negligence; (2) whether the injured plaintiff was at least 50% at fault and therefore barred from recovery; and (3) whether the damages awarded were excessive. Discerning no error, we affirm.

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Judge Sets Deadline in Life Care Centers Lawsuit

Federal prosecutors won't know until next spring if a massive whistle-blower Medicare fraud lawsuit against Life Care Centers of America can proceed to trial. The case was filed in 2008 and merged with a similar 2012 lawsuit, which involves allegations that the company provided unnecessary, often harmful, therapies to patients in its assisted living facilities to maximize Medicare billings. The Chattanooga Times Free Press has more about the case and the Cleveland, Tenn., based company.

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Supreme Court Reverses Court of Appeals and Reinstates 6.6M Judgment Against Ford Motor

AUNDREY MEALS EX REL. WILLIAM MEALS v. FORD MOTOR COMPANY
Court: TN Supreme Court

Attorneys:

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellant, Aundrey Meals, as Natural Parent, Guardian, and Next Friend of William Meals.

Lawrence C. Mann, Troy, Michigan (at trial); Sandra Giannone Ezell and Michelle B. Scarponi, Richmond, Virginia (at trial); John Randolph Bibb, Jr. and Ryan Nelson Clark, Nashville, Tennessee (at trial and on appeal); Robert Francis Chapski, Nashville, Tennessee (on appeal); and Christopher T. Handman and Sean M. Marotta, Washington, D.C. (on appeal), for the appellee, Ford Motor Company.

Judge: LEE

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.

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Lack of Certificate of Good Faith Dooms Death Suit Against Nursing Home

SHEILA DUNLAP v. LAUREL MANOR HEALTH CARE, INC.
Court: TN Court of Appeals

Attorneys:

Lyle H. Moe, Maryville, Tennessee, for the appellant, Sheila Dunlap, individually and as personal representative of the estate of Victoria Adkins.

Marc A. Sorin, Memphis, Tennessee, for the appellee, Laurel Manor Health Care, Inc.

Judge: SUSANO

Sheila Dunlap (“plaintiff”) brought this action alleging liability for the wrongful death of her daughter (“deceased”) on the part of the nursing home operated by Laurel Manor Health Care, Inc. (“defendant”) where deceased was living. Although the allegations of the complaint were couched in terms of ordinary negligence, the trial court determined that the cause of action was one for medical malpractice. The court dismissed the complaint for failure to comply with Tenn. Code Ann. § 29-26-122, which requires the filing a certificate of good faith with a medical malpractice complaint. We hold that the plaintiff’s claims that the nursing home failed to properly administer medication and a medical device prescribed by a physician, and failed to monitor the medical condition of the deceased at all times prior to her death, sound in medical malpractice. Consequently, we affirm the judgment of the trial court.

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Exclusion of Claim for Unlisted Driver Enforced by Eastern Section

KELLY WEED v. FIRST ACCEPTANCE INSURANCE COMPANY OF TENNESSEE, INC.
Court: TN Court of Appeals

Attorneys:

George R. Garrison, Sevierville, Tennessee, for the appellant, Kelly Weed.

Louis Andrew McElroy, II, and Rachel E. Sanders, Knoxville, Tennessee, for the appellee, First Acceptance Insurance Company of Tennessee, Inc.

Judge: SUSANO

This appeal involves the interpretation of an exclusionary clause in an automobile casualty insurance policy. The policy excluded coverage for a loss resulting from an accident occurring while the vehicle was being driven by an unlisted driver who “is a regular or frequent operator of” an insured vehicle. Caleb Jenkins, who was not listed in the policy as a “driver,” was involved in an accident while driving the vehicle of Kelly Weed (“Insured”). Insured brought suit after First Acceptance Insurance Company of Tennessee, Inc., (“Insurer”) denied her claim. Insurer moved for summary judgment, alleging that Jenkins was a regular and frequent operator of Insured’s vehicle. Based on Insured’s statement that Jenkins was a “fairly regular” driver of her vehicle who had been driving it once or twice a week for six months, the trial court denied coverage and granted Insurer summary judgment. We affirm the trial court’s judgment that the policy excluded coverage because Insured’s admission establishes that Jenkins was a “regular or frequent operator” of her vehicle.

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Eastern Section Reversed Summary Judgment Against Plaintiff in Premises Case

GREG PARKER, ET. AL. V. HOLIDAY HOSPITALITY FRANCHISING, INC., ET. AL.
Court: TN Court of Appeals

Attorneys:

William Richard Baker, Jr., Knoxville, Tennessee, for the appellants, Greg Parker and Diane Parker.

Andrew J. Lewis and Brian H. Trammell, Knoxville, Tennessee, for the appellee, Shashi Patel, individually and d/b/a S.P. Partnership d/b/a Holiday Inn Express.

Judge: MCCLARTY

This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting that he did not install the bench and did not have actual or constructive notice of the independent contractor’s negligent installation of the bench. The trial court granted the motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the decision of the trial court and remand for further proceedings.

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Tennessee Workers’ Compensation Payments Decline

Tennessee is one of 22 states where both workers’ compensation payments and costs to employers decreased in 2011, according to a new report from the National Academy of Social Insurance. According to the report, the state’s employers paid $783.7 million in workers’ compensation benefits, down 0.1 percent from 2010. By contrast, workers’ compensation payments rose 3.5 percent and costs to employers rose 7.1 percent nationwide during 2011. The report also estimated that 125.8 million workers are now covered by workers’ compensation protection – up 1.1 percent from 2010. The Memphis Daily News has more.

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Court: Farm Music Festivals Not Really Farming

The state Supreme Court has ruled that "agritourism" is not the sort of activity the legislature was trying to protect in exempting farmers from nuisance complaints, Knoxnews reports. The court was deciding if a farmer hosting a music festival was protected under the Right to Farm Act, or if his neighbor's complaint that it was a noisy nuisance was valid.  “We find it significant that the General Assembly chose to use the word ‘production’ alone in its definition of ‘farm operation,’” Justice William Koch wrote in the opinion. “It did not include ‘marketing,’ as other states have done in similar contexts. Marketing activities are not mentioned elsewhere in the Tennessee Right to Farm Act, and we have found no reference to marketing in the legislative history of the Act or any of its amendments.”

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Supreme Court Rules that Music Concerts are not Farming Activities

VELDA J. SHORE v. MAPLE LANE FARMS, LLC ET AL.
Court: TN Supreme Court

Attorneys:

Michael H. Meares, Maryville, Tennessee, for the appellant, Velda J. Shore.

John T. Johnson, Jr., Knoxville, Tennessee, for the appellees, Maple Lane Farms, LLC, Robert A. Schmidt d/b/a Maple Lane Farms, and Al Schmidt d/b/a Maple Lane Farms.

Julie P. Bowling and Edward K. Lancaster, Columbia, Tennessee, for the amicus curiae, Tennessee Farm Bureau Federation, Tennessee Agritourism Association, Tennessee Fruit and Vegetable Association, Tennessee Soybean Association, Tennessee Farm Winegrowers Alliance, and Tennessee Cattlemen’s Association.

Judge: KOCH

This appeal involves a dispute over the noise from amplified music concerts being conducted on farm land in rural Blount County. After the business owners who hosted the concerts defied the county zoning authority’s order limiting the concerts to one per year, a neighboring property owner filed suit in the Chancery Court for Blount County seeking to abate the concerts as a common-law nuisance and to enforce the decision of the county board of zoning appeals. The trial court granted the defendants’ motion for an involuntary dismissal at the close of the plaintiff’s proof, finding that the Tennessee Right to Farm Act, Tenn. Code Ann. §§ 43-26-101 to -104 (2007), precluded nuisance liability and that the concerts were exempted from the local land use regulations because they qualified as “agriculture.” The Court of Appeals affirmed. Shore v. Maple Lane Farms, LLC, No. E2011-00158-COA-R3- CV, 2012 WL 1245606(Tenn. Ct. App. Apr. 11, 2012). We granted the plaintiff homeowner permission to appeal. We hold that the trial court erred by granting the motion to dismiss because the plaintiff homeowner presented a prima facie case of common-law nuisance and because the concerts are not “agriculture” for the purpose of the zoning laws.

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Workers’ Comp Law Favoring Independent Exams Upheld

In a unanimous opinion this week, the Tennessee Supreme Court upheld the constitutionality of a workers’ compensation law that gives priority to the opinion of an independent medical examiner when parties cannot agree on a disability rating. The court found that the law does not violate principles of due process and does not constitute an infringement by the legislative branch on the exclusive powers of the judiciary. With regard to the specific facts of Mansell v. Bridgestone, the court also found that the employee did not provide evidence to contradict the independent examiner’s finding. Read more from the court.

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Appeal of Multifaceted Tort Suit Directed Verdict Fails Before Western Section

KIM BROWN v. CHRISTIAN BROTHERS UNIVERSITY
Court: TN Court of Appeals

Attorneys:

Kim Brown, Memphis, Tennessee, Pro Se.

Stephen W. Vescovo and Margaret F. Cooper, Memphis, Tennessee, for the appellee, Christian Brothers University.

Judge: STAFFORD

This is an appeal from the trial court’s grant of a directed verdict, dismissing Appellant’s claims of: (1) slander/defamation; (2) false light invasion of privacy; (3) false imprisonment; (4) malicious harassment; (5) negligent supervision, hiring, and retention; (6) negligent failure to affirm identification; (7) negligence; (8) assault and battery; and (9) civil conspiracy. Appellant also raises issues concerning the scope of cross-examination and the admission of certain evidence. We conclude that the trial court did not abuse its discretion concerning either the scope of the cross-examination, or by excluding certain evidence. We further conclude that Appellant failed to put forth sufficient evidence to make out a prima facie case for any of the foregoing claims. Accordingly, we affirm the trial court’s grant of a directed verdict. Affirmed and remanded.

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Insurance Contracts May Shorten Statutes of Limitation

DONALD CHILL ET AL. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

A. Wayne Henry, Loudon, Tennessee, for the appellants, Donald Chill and Martha Chill.

John T. Johnson, Jr. and Brandon L. Morrow, Knoxville, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: SUSANO

Donald Chill and his wife, Martha Chill, brought this action against their homeowner’s insurance carrier, Tennessee Farmers Mutual Insurance Company (“Insurer”), alleging breach of contract by virtue of its refusal to pay for their loss caused by an earthquake. The insurance policy required suit to be brought within one year of the loss. The Chills filed their complaint almost seven years after the loss and over three and a half years after the Chills refused to accept Insurer’s offer to settle the claim for $88,086.49. The trial court granted Insurer’s motion for judgment on the pleadings on the ground that the lawsuit was not timely filed. Plaintiffs appeal. We affirm.

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Med Mal Suit Dismissed for Want of Good Faith

ANNE GROVES, INDIVIDUALLY AND AS NEXT OF KIN OF CHARLES GROVES v. CHRISTOPHER COLBURN, M.D.
Court: TN Court of Appeals

Attorneys:

Cyrus Lucius Booker, Nashville, Tennessee, for the appellant, Ann Groves, individually and as next of kin of Charles Groves.

Jonathan Eric Miles, Phillip Lester North, and Lauren J. Smith, Nashville, Tennessee, for the appellee, Christopher Colburn, M.D.

Judge: BENNETT

Plaintiff filed a complaint against a hospital in which she asserted claims for medical malpractice and wrongful death. She later amended her complaint to add a party and did not contemporaneously file a certificate of good faith. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiff failed to satisfy the requirements of Tenn. Code Ann. § 29-26-122. We affirm the trial court.

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Classification of Worker Results in Reversal of Summary Judgment

LAFAYETTE INSURANCE COMPANY v. JERRY S. ROBERTS, ET AL.
Court: TN Court of Appeals

Attorneys:

Christopher H. Crain, Memphis, Tennessee, for the appellant, Lafayette Insurance Company.

Dean P. Dedmon, W. Lewis Jenkins, Jr., Sean P. Day, Dyersburg, Tennessee, for the appellee, Bobby Burns.

John M. Lannom, James S. Wilder, III, Dyersburg, TN, for the appellees, Jerry Roberts, Diane G. Roberts, and James P. Roberts, Jr.

Judge: HIGHERS

In this appeal we must determine whether an injured worker was an “employee” or a “temporary worker” within the meaning of a commercial general liability insurance policy. The policy excludes coverage for injuries to the insureds’ employees, but it covers injuries to “temporary workers” who are not employees, as that term is defined in the policy. The trial court granted summary judgment to the worker upon concluding that he was a “temporary worker,” and therefore covered under the policy, and it denied the insurer’s motion for summary judgment. We find that the worker was not a “temporary worker” as that term is defined by the insurance policy. Therefore, the trial court erred in granting the worker’s motion for summary judgment and denying the insurer’s motion. We reverse and remand for entry of an order granting summary judgment to the insurer.

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Suit by Adjoining Landowner for Fire Damage Fails

MAIN STREET MARKET, LLC, ET AL. v. EMILY V. WEINBERG
Court: TN Court of Appeals

Attorneys:

William L. Hendricks, Jr., Memphis, Tennessee, for the appellants, Gilbert Lawrence Callaway and Rebecca Duncan Callaway.

Stephen R. Leffler, Memphis, Tennessee, for the appellant, Main Street Market, LLC.

Judge: FARMER

This dispute arises from a fire that destroyed six adjoining buildings in 1997. The buildings were located along a single city block, running north to south, in downtown Memphis, Tennessee. Defendant owned the second building, sandwiched between one building to the north, owned by one of the Plaintiffs, and the four remaining buildings to the south, owned by the other Plaintiff. Approximately one month before the fire, a substantial portion of the second and third buildings collapsed, damaging all six buildings, and compromising the structural integrity of each building. Due to safety concerns, the parties were ordered not to enter the buildings and were required to ensure that their buildings were inaccessible to the public. The parties complied with the orders. Shortly thereafter, a trespasser entered the Defendant’s building and started a fire which spread to each of the adjoining buildings resulting in substantial damage. Plaintiffs filed negligence actions against the Defendant and argued that she was liable to them for their property damage caused by the criminal acts of the trespasser. Following a trial, the trial court entered a directed verdict in favor of the Defendant based on its conclusion that the Plaintiffs failed to establish any of the requisite elements of their negligence claims. After throughly reviewing the record, we affirm.

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Nader to Build Tort Law Museum

Consumer advocate Ralph Nader says he is planning to build an American Museum of Tort Law in his Connecticut hometown of Winsted and has raised $2 million for the project. Nader told the Associated Press that he got the idea after trial lawyers said they had no place to put exhibits used in court cases. Nadar said he hopes to showcase the history of tort law with exhibits on significant cases such as the 1998 national settlement with tobacco companies and the Chevrolet Corvair featured in his 1965 book, Unsafe at Any Speed. Above all, Nader says, he hopes the museum will promote the legal system. “We’ll be puncturing a lot of myths and lies that it’s a cash cow for greedy tort lawyers,” he said. The Washington Post has the AP story.

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Compounding Center Blamed for Meningitis Outbreak Declared Insolvent

The New England Compounding Center, which has been blamed for the deaths of 15 patients treated in Tennessee, has been declared insolvent by U.S. Bankruptcy Judge Henry J. Boroff. Judge Boroff granted the request by the Nashville attorney representing a McMinnville man whose wife died in last year's fungal meningitis outbreak. With the declaration of the center’s insolvency, the widower can file suit in Tennessee under the provisions of the state product liability statute. WBIR has the story. 

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Middle Section Affirms Summary Judgment Rejection Premises Liability

ARLEEN CHRISTIAN v. EBENEZER HOMES OF TENNESSEE, INC. D/B/A GOOD SAMARITAN NURSING HOME
Court: TN Court of Appeals

Attorneys:

Terry Renease Clayton, Nashville, Tennessee, for the Appellant, Arleen Christian.

Michael T. Schmitt, Nashville, Tennessee, for the Appellee, Ebenezer Homes of Tennessee, Inc., d/b/a Good Samaritan Nursing Home.

Judge: DINKINS

Visitor to a nursing home who was injured when a door swung into her brought suit against the nursing home, alleging that the door constituted a dangerous and defective condition and that the nursing home failed to exercise reasonable care to avoid injuries to visitors. The nursing home filed a motion for summary judgment which was granted on the basis that the door did not constitute a dangerous or defective condition. Finding no error, we affirm the judgment.

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Eastern Section Reverses Rejection of PI Claim for Want of Contesting Medical Proof from Defendant

LORI K. WILHOIT ET AL. v. JOSHUA ANDREW ROGERS ET AL.
Court: TN Court of Appeals

Attorneys:

Aleania Smith and Howell H. Sherrod, Johnson City, Tennessee, for the appellants, Lori and Jeffrey Wilhoit.

James E. Rasnic, Bristol, Virginia, for the appellees, Joshua Andrew Rogers and Englewood Lawn & Landscape, LLC.

Judge: FRIERSON

This case involves an automobile accident wherein a refrigerator being hauled by Defendants fell from a truck and collided with Plaintiffs’ vehicle. Plaintiff, Lori K. Wilhoit, was driving the vehicle and filed suit regarding her personal injuries and the property damage to her vehicle. Her husband, Jeffrey Wilhoit, also asserted claims regarding property damage to the vehicle and loss of consortium with and services of his wife. A jury trial was held in November and December 2011. As the matter of liability was stipulated, the only issues submitted to the jury related to the amount of damages, if any, suffered by Plaintiffs. The jury returned a verdict awarding Plaintiffs $3,200 for property damage and zero damages for all other claimed injuries. Plaintiffs have appealed. We affirm the jury’s verdict regarding property damage and Mr. Wilhoit’s claims, but we reverse in part the jury’s verdict regarding a portion of Ms. Wilhoit’s injuries and medical expenses. We remand this case for further proceedings regarding Ms. Wilhoit’s damages.

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Sizable PI Verdict Survives Middle Section Review of Earning Capacity

GERALD WALLACE ARDRY ET AL. v. HOME DEPOT U.S.A., INC.
Court: TN Court of Appeals

Attorneys:

Cyrus Lucius Booker, Nashville, Tennessee, for the appellant, Home Depot U.S.A., Inc.

J. Anthony Arena, Brentwood, Tennessee, for the appellee, Gerald Wallace Ardry

Judge: BENNETT

In this case arising out of a car accident, the defendant challenges the jury verdict in favor of the plaintiffs on several bases, including comments and arguments of plaintiffs’ counsel and the evidence regarding loss of earning capacity. We find no reversible error and affirm the judgment of the trial court in accordance with the jury’s verdict.

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Dismissal of County Employee's Injury Suit for UM Benefits Affirmed by Eastern Section Based on Self Insured Status

DENNIS MICHAEL HARRIS, ET UX. v. MICKEY DEANNE HAYNES, ET AL.
Court: TN Court of Appeals

Attorneys:

David A. Stuart, Clinton, Tennessee, for the appellants, Dennis Michael Harris and Judy A. Harris.

Jonathan Swann Taylor, Knoxville, Tennessee, for the appellee, Tennessee Risk Management Trust.

Judge: SWINEY

This appeal concerns whether certain exclusions in a coverage document are permissible. Dennis Michael Harris (“Harris”), then a patrolman with the Anderson County Sheriff’s Department, was injured when he was struck by a vehicle driven by Mickey Deanne Haynes (“Haynes”). Harris and his wife, Judy A. Harris, (collectively, “the Plaintiffs”) sued Haynes and the alleged owner of the vehicle, Richard H. Furrow, in the Circuit Court for Anderson County (“the Trial Court”). The Plaintiffs also raised claims against Anderson County’s motor vehicle liability coverage provider, Tennessee Risk Management Trust (“TRMT”), for uninsured or underinsured motorist coverage. TRMT filed a motion for summary judgment, arguing that under the relevant coverage document (“the Coverage Document”), Harris was excluded from uninsured coverage as he was an employee of Anderson County who had received workers compensation. The Trial Court granted TRMT’s motion. The Plaintiffs appeal. We hold that Anderson County was self-insured through TRMT, and, therefore, the uninsured/underinsured motorist statutes do not apply. The Coverage Document excluded employees such as Harris from uninsured coverage. We affirm.

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Divided Supreme Court Rules that Statute of Repose Is an Affirmative Defense That Can be Waived

EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL.
With dissenting opinion.
Court: TN Supreme Court

Attorneys:

Robert A. Talley, Kenneth Shuttleworth, and Jessica M. Hackett, Memphis, Tennessee, for the appellant, Consultants in Anesthesia, Inc.

Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Oakland, Tennessee, for the appellee, Eddie C. Pratcher, Jr.

Judge: LEE

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.

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Koch Dissenting

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Haslam Names Head of New Workers’ Comp Division

Tennessee Gov. Bill Haslam announced that Abbie Hudgens will oversee the new Workers’ Compensation Division starting today. Hudgens will serve a six-year term leading the revamped Workers’ Compensation Division in the Department of Labor and Workforce Development. She had been handling workers’ compensation issues for the department and was instrumental in developing legislation to make changes to the states’ workers’ compensation laws. Hudgens, 67, has a Master of Public Administration degree from the University of Tennessee. Before joining the Labor Department, she was risk and insurance manager for Metro Nashville, risk and benefits manager for the City of Knoxville and a private consultant.

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Med Mal Defendant Permitted to Use Expert Disclosed by Separate Defendant Over Plaintiff's Objection, Per Middle Section

WILLIAM MICHAEL RAY ET AL. v. SOUTHERN TENNESSEE MEDICAL CENTER, LLC ET AL.
Court: TN Court of Appeals

Attorneys:

Richard D. Piliponis, Nashville, Tennessee, for the appellant, William Michael Ray.

Darrell G. Townsend, Nashville, Tennessee, for the appellee, Asher A. Turney.

Judge: BENNETT

In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness to testify. We find no error in the trial court’s decision.

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Litigation Privilege and Legislative Privilege Preempt Defamation Action

BASSAM ISSA v. JACK BENSON, SR.
Court: TN Court of Appeals

Attorneys:

John R. Anderson and Joseph W. Dickson, Chattanooga, Tennessee, for the appellant, Bassam Issa.

Travis R. McDonough, Zachary H. Greene, and, Jack Benson, Jr., Chattanooga, Tennessee, for the appellee, Jack Benson, Sr.

Phillip A. Noblett and Patrick P.H. Bobo, Chattanooga, Tennessee, for Amicus Curiae, City of Chattanooga, in support of appellee, Jack Benson, Sr.

Judge: SWINEY

This appeal concerns alleged defamation and the applicability of both the legislative privilege and the litigation privilege. Bassam Issa (“Issa”), a developer seeking rezoning of certain real property, sued Chattanooga City Councilman Jack Benson, Sr. (“Benson”) in the Circuit Court for Hamilton County (“the Trial Court”). Issa alleged that, in two separate incidents, Benson had defamed him by accusing him of offering a bribe to influence Benson’s vote on the rezoning matter. Benson filed a motion for judgment on the pleadings, arguing that his statements were protected by the legislative privilege and the litigation privilege. The Trial Court granted Benson’s motion. Issa appeals. We affirm the judgment of the Trial Court.

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