News

Court of Appeals Considers Gross Negligence in Storage Unit Flooding Matter

KENNETH KUHN, et al v. PAM PANTER dba VALLEY MINI STORAGE
Court: TN Court of Appeals

Attorneys:

Norris A. Kessler, Winchester, Tennessee, for the appellant, Valley Mini Storage.

Gerald L. Ewell, Tullahoma, Tennessee, for the appellees, Kenneth Kuhn and Teresa Kuhn.

Judge: ARMSTRONG

This is negligence case. Appellees rented a storage unit from Appellant. The storage unit flooded, and the flooding destroyed Appellees’ personal property. Appellees filed suit against Appellant in general sessions court, claiming negligence and gross negligence. Appellees prevailed in general sessions court, and Appellant appealed the case to the trial court. After a bench trial, the trial court found the exculpatory clause in the parties’ rental agreement was void. The trial court also found that the Appellant’s rental of the unit to the Appellees, despite its knowledge of the obvious condition of flooding and advertising its units as dry, constituted gross negligence. We affirm.

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Administrative Med Mal Scheme Discussed

The Medical Malpractice Study Committee of the Senate Commerce & Labor Committee met today to consider SB507 by Sen. Jack Johnson (HB546 by Rep. Glen Casada), which moves medical malpractice claims out of the court system into a Patients’ Compensation System, relieves physicians of personal malpractice liability, and sets up an independent medical review panel of physicians and medical experts to review plaintiffs' claims. Presenting the legislation were representatives of the group Patients For Fair Compensation. Those in opposition and raising concerns included the Tennessee Medical Association and State Volunteer Mutual Insurance Company. Legislators attending today’s meeting included Sen. Jack JohnsonSen. Mark GreenSen. Reginald TateRep. Glen CasadaRep. Dennis PowersRep. Joe PittsRep. David Shepard and Rep. Kelly Keisling. Check TBAImpact for updates on this issue.

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Traffic Cameras Support Summary Dismissal of Relight Case

VAAL HALL, BY AND THROUGH HIS CONSERVATOR, THERESA ANNE HALL, AND THERESA ANNE HALL, INDIVIDUALLY v. CHARLES L. OWENS JR., ET AL.
Court: TN Court of Appeals

Attorneys:

John Hamilton, Jackson, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellants, Vaal Hall and Theresa Anne Hall.

James C. Wright, Knoxville, Tennessee, for the appellees, Charles L. Owens, Jr., and Delta Beverage Group, Inc.

Judge: GOLDIN

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

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Middle Section Extends Employer's UM Coverage to Business Use of a Personally Owned Vehicle Under Texas Law

GUNNAR C. SKARBREVIK, ET AL. V. PERSONAL REPRESENTATIVE OF ESTATE OF CAROLYN E. BROWN

Court: TN Court of Appeals

Attorneys:

Alan Mark Sowell and William H. Tate, Nashville, Tennessee, for the appellant, Zurich North American Insurance Company.

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellees, Gunnar C. Skarbrevik and Linda Skarbrevik.

Judge: DINKINS

An employee, who was injured in an accident with an uninsured motorist while on company business and while driving an automobile owned by his wife, sought to recover for his injuries through the uninsured motorist provision of his employer’s business automobile policy. The insurer denied coverage, asserting that the policy only provided coverage for automobiles owned by the company. The trial court granted the employee’s motion for partial summary judgment, holding that an endorsement to the policy which added employees using non-company vehicles on company business to the liability coverage operated to make those employees “insured” for purposes of the uninsured motorist coverage. Insurer appeals; finding no error in the trial court’s interpretation of the policy, we affirm the judgment.

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Ice is Slippery — Plaintiff Loses Premises Claim

TONY HALL v. GAYLORD ENTERTAINMENT COMPANY, ET AL

Court: TN Court of Appeals

Attorneys:

Mark W. Honeycutt II, Nashville, Tennessee, for the appellant, Tony Hall.

R. Dale Bay, Nashville, Tennessee, for the appellee, International Special Attractions, Ltd.

Judge: GOLDIN

This is a negligence action. While attending a holiday-themed ice exhibit, the plaintiff slipped and fell at the top of an ice slide attraction that was a feature of the exhibit and sustained injuries to his arm. The plaintiff subsequently filed suit against the company that constructed the ice slide asserting various theories of negligence. After the company filed a motion for summary judgment in which it demonstrated that the plaintiff had not presented any evidence to support his claims, the plaintiff conceded that the company was entitled to summary judgment on all of his claims except those related to negligent design of the ice slide. In support of his assertion that the company breached a standard of care in designing the ice slide, the plaintiff relied solely on American Society of Testing Materials safety standards for children’s playground equipment. The trial court determined that because the standards were not applicable to the ice slide, the plaintiff failed to demonstrate how the company was negligent in designing the ice slide. The trial court granted the company’s motion for summary judgment. We affirm.

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CSX Seeks to Move Blount County Suit to Federal Court

CSX Transportation Inc. wants to transfer a class-action lawsuit from Blount County Circuit Court to federal court, The Daily Times reports. The class-action lawsuit was filed after a train derailment on July 2 that resulted in the evacuation of 5,000 Maryville residents. The suit seeks unspecified damages. CSX is facing three other lawsuits in the derailment.

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Middle Section Explores Negligent Entrustment and Negligent Supervision in ATV Accident

SARAH WARD, ET AL. v. SHELAENA WARD

Court: TN Court of Appeals

Attorneys:

Benjamin E. Winters, Nashville, Tennessee, for the appellant, Sarah Ward.

Daniel P. Berexa and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellee, Shelaena Ward.

Judge: DINKINS

After her daughter was injured in an ATV accident, Plaintiff filed suit against her daughter’s step-grandmother, in whose home the daughter was staying on the night of the accident and who owned the ATV, alleging numerous causes of action sounding in negligence. The trial court granted Defendant’s motion for summary judgment; Plaintiffs appeal as to the claims for negligent entrustment and negligent supervision. Finding no reversible error, we affirm the judgment.

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Knoxville Attorney Addresses Benefits Disputes in Editorial

Knoxville attorney Sam Doak of Arnett, Draper and Hagood writes in the Knoxville News Sentinel that Tennessee’s relatively new workers’ compensation law – effective July 1, 2014 – is causing some confusion when it comes to how medical and other temporary benefits are addressed. “The point is that the parties need to think ahead, be smart about what issues they dispute and be prepared to appear before a judge to justify their position with admissible evidence if they cannot reach a compromise,” Doak writes. 

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Supreme Court Denies Tire Company Dismissal Request

The Tennessee Supreme Court denied Bridgestone entities’ request to dismiss a case because of lost evidence and a request for summary judgment. The decision affirmed a trial court ruling in the case in which a woman’s car was totaled in an accident after it appeared that a tire may have failed and the wrecking service later destroyed her car. The Court also reviewed the defendants’ additional reasons for requesting summary judgment, conducting the analysis under the Court’s recent opinion in Rye v. Women’s Care Center of Memphis. Justice Gary R. Wade wrote a concurring opinion, in which he disagreed with the new summary judgment standard, but reached the same conclusion under a different analysis. Read the opinion authored by Justice Jeffrey S. Bivins.  

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Middle Section Affirms Dismissal via Summary Judgment in Defamation Case Against Chattanooga Congressman and GOP

MARK A. WINSLOW v. JOHN BRUCE SALTSMAN, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Gary Blackburn, Bryant Kroll and Raymond Throckmorton, III, Nashville, Tennessee, for the appellant, Mark A. Winslow.

Paul C. Ney, Jr., Nashville, Tennessee, for the appellee, John Bruce Saltsman, Jr. 2 Richard E. Spicer, Brent S. Usery, and Lance W. Thompson, Nashville, Tennessee, for the appellee, Charles J. Fleischman. Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and William J. Marett, Jr., Senior Counsel, for the Tennessee Attorney General.

Judge: DINKINS

Mark Winslow brought suit against Charles Fleischmann and his campaign advertising consultant, John Saltsman, to recover for allegedly false and defamatory statements made in the course of Mr. Fleishman’s campaign for election to the United States Congress, and related contractual claims. Mr. Fleishman and Mr. Saltsman moved for summary judgment on the grounds that the statements were not false or capable of defamatory meaning or published with actual malice, and that they took no action to induce a breach of contract or otherwise interfere with the relationship between Mr. Winslow and the Tennessee Republican Party. Mr. Winslow did not contest the grant of summary judgment on the contract claims; the trial court granted the motion as to the defamation and false light claims, holding that there was no evidence from which to infer malice, that the statements were not defamatory or capable of a defamatory meaning, and that any statements upon which the action was based which related to Mr. Winslow were either true or substantially true and, therefore, not actionable. Mr. Winslow appeals. Because Mr. Fleishman and Mr. Saltsman demonstrated that the undisputed facts negate the element of actual malice which is essential to the defamation and false light claims, we affirm the trial court’s grant of summary judgment.

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There will be no Ruling Impacting the Collateral Source Rule on Connection with Hall v Holland

Despite extensive interest and briefing, the Supreme Court declines to accept a certified question related to the scope of its earlier decision about reasonableness of medical expenses in the hospital lien context.

The Court had been asked by the U S District Court in Memphis to answer the following certified question of law:
Is the decision in West limited to the Hospital Lien Act or is it also applicable to personal injury actions directly against the allegedtortfeasor?

Upon thorough review, the Court found that the certified question is not one which will be determinative of the cause as is required of certified questions and declined the opportunity to respond.

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Court Vacates Decision on Constitutionality of Cap

The Tennessee Supreme Court has set aside a Hamilton County trial court ruling that said a state law capping non-economic damages in certain personal injury cases is unconstitutional. The court wrote in its order that the issues were not “ripe” for constitutional consideration at this point, because there has not yet been a final decision in the case nor any award of non-economic damages in excess of the statutory cap.

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Governor Names Members to Law-Related Bodies

Tennessee Gov. Bill Haslam has announced a series of appointments to state boards and commissions, including several law-related bodies, WRCBTV.com reports. Among the appointments are Chris Hodges of Nashville and Ward Phillips of Knoxville to the Board of Judicial Conduct; Niesha Wolfe of Clarksville and Mary Wagner of Memphis to the Post-Conviction Defender Oversight Commission; and Jason Denton of Lebanon, Lynn Lawyer of Nashville and Jerry Mayo of Brentwood to the Advisory Council on Workers' Compensation.

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ESPN Star Seeks $75M in Peephole Suit

Former ESPN personality Erin Andrews is seeking $75 million in a lawsuit tied to an incident where she says a stalker filmed her through a peephole in a Nashville hotel, new court documents say. The Tennessean reports that Andrews’ Nashville attorney, Randall Kinnard, filed a revised version of her lawsuit earlier this week in Davidson County Circuit Court. The previous lawsuit sought $10 million for similar claims.

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Efforts to Allow Opt-out of Workers’ Comp Still Alive in Tennessee

Some of the country’s largest companies are proposing a radical idea: let businesses opt out of state workers’ compensation laws so they can write their own rules for taking care of injured workers. In an article out today, Pro Publica looks at the issue and how the concept is working in Texas and Oklahoma, which both have passed laws allowing such waivers. Similar proposals are under consideration in Tennessee and South Carolina.

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Eastern Section Dismisses Death Action vs State for Road Design and Signage

MARK THOMAS CHURCH ET AL. v. CHARLES BLALOCK & SONS, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Dawn Jordan, Senior Counsel, Office of Attorney General; Nashville, Tennessee, for the appellee, State of Tennessee.

Gary E. Brewer and Steven W. Terry, Morristown, Tennessee, for the appellee, Mark Thomas Church. Edward R. Sempkowski, Morristown, Tennessee, for the appellee, Sherry Carlson, Administratrix of Estate of Patricia Ann Lunsford.

Judge: FRIERSON

This action stems from a motor vehicle accident resulting in two fatalities that occurred at the intersection of the newly constructed State Route 91 and Old State Route 91 in Johnson County, Tennessee. Alleging that the design and construction of the intersection were negligent, the plaintiffs filed suit in the Johnson County Circuit Court against Johnson County and the general contractor who constructed the intersection. The plaintiffs also filed claims against the Tennessee Department of Transportation with the Tennessee Claims Commission, asserting that the intersection constituted a dangerous condition on a roadway. The claims filed with the Claims Commission were transferred to Johnson County Circuit Court, and all claims were subsequently consolidated in this action. Johnson County and the general contractor were later dismissed as defendants, such that the trial proceeded regarding the claims against the State only. Following a bench trial, the court granted judgment to the plaintiffs, determining the State to be 53% at fault and the deceased driver to be 47% at fault. The court awarded damages accordingly. The State timely appealed.1 We conclude that the evidence preponderates against the trial court’s determination that the intersection constituted a dangerous condition on the roadway or that the risk involved was foreseeable. We therefore reverse the trial court’s judgment.

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Defamation Case by Congregant Against Church is Dismissed on Pleadings

AUSTIN DAVIS v. COVENANT PRESBYTERIAN CHURCH OF NASHVILLE, ET AL.
Court: TN Court of Appeals

Attorneys:

Thomas M. Donnell, Jr., Autumn L. Gentry, and Kelly M. Telfeyan, Nashville, Tennessee, for the appellant, Stewart James (Jim) Bachmann, Jr.

Austin Davis, Nashville, Tennessee, Pro Se.

Judge: BENNETT

A former church member brought suit against the pastor and other defendants not involved in this appeal. The trial court dismissed all of the plaintiff’s claims against the pastor with the exception of the causes of action for defamation and outrageous conduct. We have concluded that the plaintiff’s complaint does not make out claims for defamation or outrageous conduct. The decision of the trial court is, therefore, reversed and remanded with instructions to dismiss the complaint in in its entirety.

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Supreme Court Holds that Pre-suit Notice and Good Faith Certificate Essential in Action Against Social Worker

ADAM ELLITHORPE ET AL. V. JANET WEISMARK
Court: TN Supreme Court

Attorneys:

John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet Weismark.

Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley Ellithorpe, and M.L. (a minor). Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the intervenor, State of Tennessee.

Judge: CLARK

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that “[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs’ complaint with prejudice is reinstated.

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Metro Schools Can Fire Non-teaching Staff Without Appeals Hearing

Davidson County Chancery Court Judge Ellen Lyle said Metro’s director of schools has the power to dismiss non-teaching staffers without giving them an appeals hearing, The Tennessean reports. Lyle said in her ruling that state law “supersedes the Metro Charter’ and allows for a board to create policies detailing the process in which the director hires and fires personnel.

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Chattanooga Firm Files Class Action Suit Against Volkswagen

Chattanooga firm Patrick, Beard, Schulman & Jacoway PC filed a class action lawsuit against Volkswagen Group of America, Inc. and related corporate entities following the company’s admission that it installed “defeat devices” in certain Volkswagen and Audi diesel automobiles in order to pass emissions tests. The lawsuit joins the more than 175 class actions filed in 32 states. The firm's lawsuit contains plaintiffs from Tennessee, Georgia, and Florida. “Volkswagen has been an important part of the Chattanooga community, but we are certainly disappointed in Volkswagen’s intentional actions in mispresenting the true nature of its diesel engines,” managing partner Gary Patrick said.

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Transitory Venue Statute Upheld in Med Mal Case

KATHLEEN N. BARRETT, ET AL. v. THOMAS M. CHESNEY, MD
Court: TN Court of Appeals

Attorneys:

Albert C. Harvey and Justin N. Joy, Memphis Tennessee, for the appellants, Trumbull Laboratories, LLC, Thomas M. Chesney, and Pathology Group of the Midsouth, PC.

John F. Floyd, Nashville, Tennessee, for the appellant, Kathleen N. Barrett. Marty R. Phillips and John O. Alexander, IV, Memphis, Tennessee, for the appellees, Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care, LLC d/b/a Tristar Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar Medical Group- Fairvue Primary Care.

Judge: ARMSTRONG

This interlocutory appeal arises from a health care liability action and concerns the question of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants, a pathology group located in Shelby County. Appellants answered the complaint and raised, as an affirmative defense, the comparative negligence of Appellees, plaintiff’s primary care physician and his employer, who are residents of Sumner County. Plaintiff then moved, under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the complaint and averred that venue was improper in Shelby County under Tennessee Code Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however, rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner County. Appellants appeal. We affirm and remand.

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Med Mal HIPPA Release Substantially Complies, per Eastern Section

MARGIE HUNT ET AL V. SUDHA NAIR, M.D. ET AL
Court: TN Court of Appeals

Attorneys:

Heidi A. Barcus and Daniel T. Swanson, Knoxville, Tennessee, and Thomas W. Lawrence, Jr. and Matthew A. Moushon, Nashville, Tennessee, for the appellant, Sudha Nair, M.D.

David E. Waite, Knoxville, Tennessee, for the appellant, Nitin J. Rangnekar, M.D. Mark T. Smith and Lauren Z. Curry, Nashville, Tennessee, for the appellant, Metro Knoxville HMA, LLC, dba Tennova Healthcare-Turkey Creek Medical Center. Brett D. Stokes, Knoxville, Tennessee, for the appellees, Margie Hunt and husband, Rickey Hunt.

Judge: SUSANO

This interlocutory appeal involves a health care liability action.1 The plaintiffs, Margie Hunt and husband, Rickey Hunt,2 claim that Mrs. Hunt suffered injuries proximately caused by the conduct of the defendants with respect to two surgeries.3 Prior to filing their complaint, the plaintiffs gave timely written notice of their claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Each of the three defendants moved to dismiss the complaint. Their separate motions were predicated on their assertion that the plaintiffs? pre-suit notice failed to comply with the requirements of Tenn. Code Ann. § 29-26-121, part of the Tennessee?s Health Care Liability Act. Specifically, the defendants argue that the plaintiffs failed to provide a HIPAA- compliant4 medical authorization with their pre-suit notice. They also contend that the plaintiffs failed to attach to the complaint the medical authorization and also the pre-suit notice served upon the defendants. The defendant Dr. Nitin J. Rangnekar also relies upon the ground of insufficiency of service of process. The trial court denied each defendant?s motion. On the defendants? further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted the defendants permission to file a Rule 9 appeal. We affirm the judgment of the trial court.

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Supreme Court Review Possible in Birth Control Requirement Dispute

The Justice Department says the U.S. Supreme Court should review a federal appeals court decision that agreed with religious-oriented nonprofits' claims that the option to opt of out mandatory birth control provisions unjustly burdens companies. The Associated Press reports that the court in St. Louis last month became the first to agree with the religious-oriented nonprofits after seven other appellate panels sided with the Obama administration.

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Volkswagen Hit with Class Action Suits in 32 States

Volkswagen has been hit with more than 175 class actions in 32 states since news of its emissions troubles came to light last month. Almost all the suits have been brought on behalf of consumers alleging they were duped into paying premium prices for “clean diesel” vehicles that exceeded U.S. regulatory standards. Others have been filed by dealership franchises. The cases are in addition to investigations by the U.S. Justice Department, the U.S. Environmental Protection Agency and attorneys general in at least 28 states, the National Journal reports.

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Court Grants Tax Refunds to Insurance Companies

The Tennessee Supreme Court ruled today that the state Department of Commerce and Insurance must refund more than $16 million in taxes paid by five groups of Pennsylvania insurance companies. In 2012, the companies requested refunds for taxes they paid under Tennessee’s retaliatory tax statute, arguing they did not owe taxes on certain assessments that were paid by policyholders. The court agreed, concluding that the department could not require a retaliatory tax because the assessments did not impose a direct financial burden on Tennessee insurance companies doing business in Pennsylvania. Read the opinion.

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