News

CORRECTED LINK: Summary Judgment Based on Comparative Fault is Reversed and Remanded

VICKI MATHERNE, ET AL. v. JERRY WEST, ET AL.
Court: TN Court of Appeals

Attorneys:

Timothy J. Gudmundson, Knoxville, Tennessee, for the appellants, Vicki Matherne and Rodney Matherne, individually and on behalf of Samuel Troxclair.

Kenneth W. Ward, Knoxville, Tennessee, for the appellees, Jerry West, Carolyn West, and American Patriot Getaways, LLC.

Judge: SWINEY

This appeal concerns premises liability in a slip and fall case. Vicki Matherne and Rodney Matherne ("Plaintiffs") sued Jerry West and Carolyn West ("the Wests"), owners of a vacation cabin rented by the Mathernes, and American Patriot Getaways ("APG"), which managed the cabin, (collectively, "Defendants") after Mrs. Matherne injured herself falling off an elevated parking level at the cabin. Defendants filed a motion for summary judgment. The Circuit Court for Sevier County ("the Trial Court") granted Defendants' motion, finding that any hazardous condition was open and obvious and that Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that there are genuine disputed issues of material fact regarding what Defendants could or should have done to prevent the risk of a fall from the elevated parking level and whether Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting Defendants' motion for summary judgment. We reverse the judgment of the Trial Court and remand this case for further proceedings.

.PDF Version of Case

Comment on this Article

read more »

A Divided Supreme Court Holds that Self Insured Rental Vehicle can be an Uninsured Motor Vehicle for UM Law Purposes, Reversing Intermediate Court

EDWARD MARTIN V. GREGORY POWERS ET AL.

With Dissenting Opinion by Kirby

Court: TN Supreme Court

Attorneys:
Patrick Shea Callahan, Cookeville, Tennessee (on appeal), and Matthew C. Hardin, Nashville, Tennessee (at trial), for the appellant, Edward Martin.
W. Bryan Brooks and Amy V. Peters (on appeal), and Benjamin J. Miller (at trial and on appeal), Nashville, Tennessee, for the appellee, IDS Property Casualty Insurance Company.

Judge: BIVINS

This case arises out of an incident in which the Defendant, Gregory Powers, drove a car he had rented from Enterprise Rent-A-Car ("Enterprise") into the Plaintiff, Edward Martin. The Plaintiff sued the Defendant, the Defendant's automobile liability insurer, and Enterprise. Additionally, the Plaintiff provided notice of the lawsuit to his own automobile liability insurance carrier, IDS Property Casualty Insurance Company ("IDS"), in order to recover through the uninsured motorist coverage provision of the Plaintiff's policy ("the Policy"). IDS denied coverage and moved for summary judgment, arguing that the rental car ("the Rental Car") did not qualify as an "uninsured motor vehicle" under the Policy. The trial court granted IDS's motion, and the Court of Appeals affirmed. We granted review to determine whether the Rental Car qualified as an "uninsured motor vehicle" under the Policy. We hold that the Rental Car was an "uninsured motor vehicle" under the Policy. Accordingly, we reverse the grant of summary judgment to IDS and remand this matter for further proceedings.

.PDF Version of Case

Dissenting Opinion

Comment on this Article

read more »

Some VW Owners Slam Emissions Deal

Several angry Volkswagen owners told a federal judge yesterday that a proposed $10 billion settlement does not adequately compensate them for the automaker’s emissions cheating scandal. One owner, for example, demanded the full purchase price of his car as well as part of his registration fee, the Associated Press reports. The settlement calls for the car maker to spend up to $10 billion to buy back or repair about 475,000 Volkswagens and Audi vehicles with 2-liter diesel engines and pay owners an additional $5,100 to $10,000 each. The deal also requires the company to pay $4.7 billion for environmental mitigation and to promote zero-emissions vehicles. The Memphis Daily News has the story.

read more »

Case Studies in Captive Insurance

Did you miss the TBA CLE course on captive insurance earlier this month? If so, you can watch a webcast of the session for up to a year. Watch as Andrew Rhea and Benjamin Whitehouse provide a brief overview of the field of captive insurance and use real life examples to illustrate how businesses conduct feasibility studies to determine how to structure a captive.

read more »

Learn More about New FAA Drone Rules

Did you miss the Oct. 6 TBA CLE webcast with James Mackler talking about new drone laws set by the FAA? Good news! The video is available for one year on the TBA website. The session covers the use of drones in business, government and by hobbyists, as well as the unique regulatory environment related to each. The course also looks at state laws, privacy and trespass issues, liability and insurance issues and current litigation.

read more »

TDLA Names 2016 Award Recipients

The Tennessee Defense Lawyers Association (TDLA) recognized 2016 award recipients at its recent 50th Anniversary Celebration & Annual Meeting. The group named Michael L. Haynie as its inaugural Defense Lawyer of the Year. Haynie is a principal with Manier & Herod practicing workers’ compensation law. He has drafted legislation for the association, including a bill this year to modify the Drug-Free Workplace Program. In addition, the group presented Nancy Steer with Leitner, Williams, Dooley & Napolitan with its “Rising Star Award.” She is an associate in the firm’s Nashville office focusing on general civil litigation.

read more »

Memphis Lawyer Kim Schuerman Smith Dies

Memphis lawyer Kimberly Schuerman Smith died today (Oct. 4). She was 52. A 1990 graduate of the Cecil C. Humphreys School of Law, Smith practiced law with Schuerman Smith & Associates PLLC. "She was a trailblazer,” former law partner Kreis White recalled. “She was a first chair female insurance defense lawyer long before many women tried many jury cases." Visitation will be Thursday at Collierville Funeral Home from 5 to 8 p.m. The funeral service will be at Collierville First Baptist Church at 2 p.m. Friday. In lieu of flowers the family suggests donations be made to St. Jude Children's Research Hospital.

read more »

Supreme Court Relaxes Collateral Estoppel Privity Requirement

MS. BOWEN EX REL. JOHN DOE, “N” v. WILLIAM E. ARNOLD, JR. ET AL.
Court: TN Supreme Court

Attorneys:

Cary M. Kellar and Lance W. Thompson, Nashville, Tennessee, for the appellant, William Edward Arnold.

Luvell L. Glanton and Herron T. Bond, Nashville, Tennessee, for the appellees, Ms. Bowen and John Doe N.

Judge: CLARK

The determinative question in this appeal is whether the trial court erred in ruling that a person convicted of rape and aggravated sexual battery is collaterally estopped in a subsequent civil lawsuit filed by the victim of the criminal offenses from relitigating the issue of whether he raped and sexually battered the victim. The trial court applied collateral estoppel, explaining that, although the victim was not a party to the criminal prosecution, the victim was in privity with the State, which satisfied the party mutuality requirement necessary for collateral estoppel to apply. The trial court therefore granted the plaintiffs partial summary judgment but permitted the defendant to seek an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. After the Court of Appeals declined to accept the interlocutory appeal, the defendant filed an application for permission to appeal in this Court, which we granted. We hereby abolish the strict party mutuality requirement for offensive and defensive collateral estoppel and adopt sections 29 and 85 of the Restatement (Second) of Judgments as the guidelines for courts to follow when determining whether nonmutual collateral estoppel applies. Having applied these guidelines to the undisputed facts in this appeal, we affirm the trial court‘s decision granting partial summary judgment to the plaintiffs and remand this matter to the trial court for further proceedings consistent with this decision.

.PDF Version of Case

Comment on this Article

read more »

Government Reaches Settlement in Suits Against Life Care, Preston

The Chattanoogan reports that the federal government has reached a settlement in the False Claims Act case against Cleveland Tenn.-based Life Care Centers, as well as in a separate suit against company chairman Forrest Preston. Claims in the case, in which the private nursing home company was accused of overbilling the government, amount to $1.8 billion. The separate suit against Preston alleges that he “unjustly enriched” himself through unfounded claims for government reimbursement. Life Care owns facilites in 28 states, including 20 locations in Tennessee.
read more »

HHS Prohibits Forced Arbitration by Nursing Homes

The federal Department of Health and Human Services today issued a new rule that will prohibit long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. Nursing homes and patients can still enter into arbitration if they choose, but contracts may not be written to automatically compel both parties into arbitration. The rule is part of a major revamp of consumer protections at long-term care facilities, Consumerist reports. The rule will go into effect Nov. 28 and have no effect on the “enforceability of existing pre-dispute arbitration agreements” according to the Centers for Medicare & Medicaid Services.

read more »

Muslim Officer Wins $100K for Wrongful Firing

De’Ossie Dingus, a Tennessee Highway Patrol trooper who was fired after being labeled a potential jihadist, has won a $100,000 damage award from the state. U.S. District Judge Tena Campbell ordered the state to pay Dingus after he was treated as a threat, subjected to humiliating circumstances and wrongfully terminated because of his faith. The Sixth Circuit U.S. Court of Appeals ruled earlier this year that the case was so egregious it did not require a traditional proof of psychological harm to have damages awarded. That ruling led to this week’s award, Knoxnews reports.

read more »

Gas Shortage Leads to Hundreds of Complaints

An ongoing gas shortage has prompted hundreds of price gouging complaints statewide, the Tennessean reports. The Tennessee Department of Commerce and Insurance reports nearly 600 consumer complaints came in over the weekend related to gas issues and prices. Most of the complaints came from Nashville drivers and involved gas prices that were under $3 a gallon, but some consumers said retailers were charging $9.99 a gallon. In response, Gov. Bill Haslam issued an executive order that would allow longer hours for fuel truck drivers so they can bring oil from refineries further away. 

read more »

Trucking Broker Avoids Imputed Liability

CHRISTY GAIL BOWMAN v. MOUNIR BENOUTTAS ET AL.
Court: TN Court of Appeals

Attorneys:

Ronald J. Berke, Jeremy M. Cothern, & Charles A. Flynn, Chattanooga, Tennessee, for the appellant, Christy Gail Bowman.

Terrill L. Adkins & Hannah S. Lowe, Knoxville, Tennessee, for the appellee, AllStates Trucking, Inc.

Judge: CLEMENT

At issue in this case is whether a defendant, which claims to be merely the broker of a shipment that was being delivered, may be held vicariously liable for the negligence of the delivery driver. This action arises out of a motor vehicle accident involving a tractor-trailer that was owned and operated by Mounir Benouttas. At the time of the accident, Mr. Benouttas was delivering a shipment pursuant to a contractual arrangement with MGR Freight Systems, Inc. In addition to suing Mr. Benouttas and MGR, Plaintiff sued AllStates Trucking, Inc., which had contracted with MGR to deliver the shipment to AllStates' customer. Plaintiff claimed AllStates was vicariously liable under the doctrines of respondeat superior and joint venture. Plaintiff later amended her complaint to include the additional theory of implied partnership. The trial court summarily dismissed all claims against AllStates because Plaintiff could not establish an agency relationship, joint venture, or implied partnership. Plaintiff appeals contending summary judgment was inappropriate because material facts are at issue. Plaintiff also challenges the trial court's decision to consider only the legal theories Plaintiff explicitly stated in her complaint, the court's partial denial of Plaintiff's motion to amend her complaint, denial of her motion for summary judgment, and its decision to allow AllStates to rely on untimely filings. Finding no error with the trial court's decisions, we affirm.

.PDF Version of Case

Comment on this Article

read more »

Read About Estates, Torts, Family Law … and Dodge Ball?

Murfreesboro lawyer Josh McCreary examines last wills and testaments, writing that "in the wake of the 2015 Court of Appeals opinion in In Re: Estate of Morris, the Tennessee legislature has stepped in and amended Tenn. Code Ann. §32-1-104 to lessen the formalities of Wills executed before July 1, 2016." Read in the September Tennessee Bar Journal what this will mean for estate practice. Columnist John Day writes about the two times in the past five years that the statute of limitations applicable to personal injury claims filed on behalf of persons with mental impairments has been changed. Columnists Marlene Eskind Moses and Manuel Benjamin Russ look into finding and defining income available for child support and alimony, and humor columnist Bill Haltom writes about his dubious experiences with junior high sports, particularly Dodge Ball.

read more »

There Can Be 2 Nonsuits but Only 1 Savings Statue, Western Section

CHRISTINE GREENWOOD v. NATIONAL DENTEX CORPORATION, ET AL.
Court: TN Court of Appeals

Attorneys:

Christine Greenwood, Memphis, Tennessee, Pro Se.

Darrell E. Baker, Jr., Deborah Whitt, and M. Jason Martin, Memphis, Tennessee, for the appellees, National Dentex Corporation and Green Dental Laboratories, Inc.

Judge: ARMSTRONG

This is a saving statute case, Tennessee Code Annotated Section 28-1-105. The trial court dismissed Appellant’s third product-liability case, which was filed within one year of the dismissal of her second lawsuit, but more than one year after the entry of the initial nonsuit in Appellant’s first lawsuit. Discerning no error, we affirm.

.PDF Version of Case

Comment on this Article

read more »

Eastern Section Affirms Sizable Premise Liability Verdict

ERIC G. GLASGOW v. K-VA-T FOOD STORES, INC.
Court: TN Court of Appeals

Attorneys:

J. Eric Harrison and Jeffrey M. Cranford, Morristown, Tennessee, for the appellant, K-VA-T Food Stores, Inc.

Bryan L. Capps and Charmaine M. Nichols, Knoxville, Tennessee, for the appellee, Eric G. Glasgow.

Judge: MCCLARTY

This is an appeal from a jury verdict in a premises liability action in which the plaintiff filed suit against the defendant, alleging that he sustained injury while using the restroom in a grocery store operated by the defendant. The court denied the defendant’s request for a directed verdict and submitted the case to the jury, which awarded $350,000 in compensatory damages. Following the denial of post-trial motions, the court approved the verdict but reduced the award to conform to the amount of damages pled. The defendant appeals, claiming the reduced award is not supported by material evidence. We affirm.

.PDF Version of Case

Comment on this Article

read more »

State Dems Want Hearing on Insurance Rates

Tennessee Democratic lawmakers are calling for a public hearing on the state’s decision to approve increases for some health insurance plans by as much as 62 percent. They say Insurance Commissioner Julie Mix McPeak has not done enough to show the increases are needed to keep the health insurance market afloat, Nashville Public Radio reports. McPeak blamed flaws in the Affordable Care Act for the increase. But Democrat Sen. Jeff Yarbro questioned why Tennessee is doing so much worse than everyone else. “Why are our rates going up higher and faster than every country — every other state in the country?” Some say it is because the state has not expanded its Medicaid program to include the sickest residents, leaving them in the general insurance pool.

read more »

Court Solicits Comments on 2017 Rules Package

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include changing the place for filing a notice of appeal to the appellate clerk’s office, requiring payment of fees and taxes to the appellate court clerk at the time of initiation of an appeal, and changes to the Juvenile, Criminal and Evidence rules. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law and Juvenile and Children’s Law – will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 23.

read more »

Insurance Commissioner: Health Exchange ‘Very Near Collapse’

Tennessee Insurance Commissioner Julie Mix McPeak proclaimed the state’s health exchange “very near collapse” yesterday after signing off on significant premium hikes in a bid to keep the platform viable. The rate approvals were necessary to ensure healthcare options in every part of Tennessee, McPeak said. Tennessee is seeing a steady decrease in the number of insurance companies selling plans on the federally run exchange, the Tennessean reports. In 2017, 57 of the state’s 95 counties will have only one insurance company serving their area.

read more »

Nashville Attorney to Chair ABA Section

Sam H. Poteet Jr., a principal with Manier & Herod in Nashville, has been elected to a one-year term as chair of the American Bar Association Tort Trial and Insurance Practice Section (TIPS). He will begin serving his 2016-17 term at the conclusion of the ABA annual meeting in San Francisco, which starts today and runs through Aug. 9. TIPS unites plaintiff, defense, insurance and corporate counsel to advance the civil justice system. It has about 20,000 members and 31 general committees that focus on substantive and procedural matters in areas across the broad spectrum of civil law and practice.

read more »

Eastern Section Affirms Summary Judgment in Head on Wreck Against Amnesic Plaintiff

CHRISTOPHER DENTON V. EDNA TAYLOR ET AL.
Court: TN Court of Appeals

Attorneys:

Valerie W. Epstein, Chattanooga, Tennessee, for appellant, Christopher Denton.

Douglas M. Campbell, Chattanooga, Tennessee, for appellee, Edna Taylor.

Judge: SUSANO

This case arises out of a head-on automobile accident that resulted in the death of Howard Taylor, the driver of one of the cars, and serious injuries to Christopher Denton (plaintiff), the other driver. Plaintiff brought this negligence action against the decedent’s widow, Edna Taylor, and his estate.1 There were no witnesses to the accident, and plaintiff has no memory of what happened. Some fifteen months after the complaint was filed, the sole remaining defendant, Edna Taylor, moved for summary judgment, arguing that plaintiff’s evidence was insufficient to establish causation. In support of the motion, defendant filed the affidavit of the officer who investigated the accident, in which he stated that he “wasn’t able to locate any roadway evidence that indicated the point of impact.” After a hearing on defendant’s motion, plaintiff filed a motion asking the trial court to grant him more time to obtain and file an accident reconstruction “report.” The court denied the motion and granted summary judgment on the ground that plaintiff provided no evidence establishing that the decedent’s negligence caused the accident. We affirm.

.PDF Version of Case

Comment on this Article

read more »

Eastern Section Affirmed Slip/Fall Summary Judgment of Dismissal for Want of Actual or Constructive Notice

CARLA LANDRUM, ET AL. v. METHODIST MEDICAL CENTER, ET AL.
Court: TN Court of Appeals

Attorneys:

John D. Agee and Amanda I. Lowe, Clinton, Tennessee, for the appellants, Carla Landrum and Jerry Lee Landrum.

F. Michael Fitzpatrick and Rachel P. Hurt, Knoxville, Tennessee, for the appellees, Methodist Medical Center of Oak Ridge and Covenant Health.

Judge: MCCLARTY

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant hospital for personal injuries and other damages resulting from wife’s slip and fall. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to demonstrate defendant’s actual or constructive knowledge of the dangerous condition by failing to proffer material evidence establishing the cause, source, or duration of the dangerous condition. The plaintiffs appeal. We affirm the decision of the trial court.

.PDF Version of Case

Comment on this Article

read more »

VW Settlement Gets Preliminary Court Approval

A federal judge gave preliminary approval today to a sweeping settlement between Volkswagen, U.S. regulators and owners of VW diesels who will receive thousands of dollars in compensation, the Tennessean reports. Judge Charles Breyer with the U.S. District Court for the Northern District of California, set the settlement in motion, allowing the automaker to begin collecting information from 475,000 consumers who bought cars that were rigged to cheat emissions standards. Final approval of the settlement could come at a hearing set for Oct. 18. .

read more »

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.

read more »

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.”

read more »