News

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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Middle Section Affirms Dismissal of GTLA Claim Where New Roller Chair on Slick Floor Eludes Police Officer

SUZANNE W. BUTLER v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
Court: TN Court of Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Suzanne W. Butler.

James E. Robinson, Andrew D. McClanahan, Patrick J. Bradley, and Cynthia E. Gross, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: CLEMENT

This appeal arises from a claim under the Governmental Tort Liability Act for injuries sustained by an employee of the Metropolitan Police Department that allegedly resulted from a fall in the break room at her workplace. The employee alleged that the chair she attempted to sit in, which had caster wheels, constituted a dangerous condition because it was on an uncarpeted, tile floor. She also alleged that the Metropolitan Government had notice of the dangerous condition and was negligent in failing to provide a safe work environment and in permitting the dangerous condition to remain. Following a bench trial, the court dismissed the action finding that Plaintiff failed to prove her negligence claim by a preponderance of the evidence because the evidence did not establish that the Metro Police Department had actual or constructive notice of any dangerous condition with sufficient time to take corrective action. We affirm.

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Supreme Court Rules on Suits Against Businesses

A sharply divided U.S. Supreme Court today decided two cases that some say will make it harder to sue and get judgments against employers for discrimination and retaliation claims, the Memphis Daily News reports. In the first case, the court defined a supervisor as a person who has the ability to hire and fire, undercutting claims that a company is responsible for the racism or sexism of an employee’s coworker. In the second case, the court said juries must find that an employer would not have taken the alleged discriminatory action but for an intention to retaliate. Justice Ruth Bader Ginsburg, in a rare move, read her dissent aloud in the courtroom and called on Congress to overturn the decisions.

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As Long as Hannan is the Law, Summary Judgment in Tort Cases will be Rare

RAMEY MICHELLE LONG v. GREYHOUND LINES, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

Michael S. Long, Memphis, Tennessee, for the appellant, Ramey Michelle Long.

T. Franklin Gilley, III, Murfreesboro, Tennessee, for the appellees, Judith R. Adair and Carol L. Casteel.

Judge: BENNETT

Motorist brought suit against multiple defendants for injuries arising out of two car accidents. The trial court granted summary judgment in favor of two defendants. Because genuine issues of material fact preclude summary judgment, we reverse.

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Landowner Liability Rejected by Eastern Section

JORDAN K. WILSON v. DAVID W. DOSSETT, AMERICAN HONDA MOTOR CO., AND FOX HEAD, INC.
Court: TN Court of Appeals

Attorneys:

Jill Jenson Thrash and Stuart Fawcett James, Chattanooga, Tennessee, for the appellant, Jordan K. Wilson.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellee, David W. Dossett.

Judge: SWINEY

This appeal concerns a landowner’s potential liability to a person injured while riding a motorcycle on the landowner’s property. Jordan K. Wilson (“Wilson”) suffered severe injuries in a motorcycle accident on property owned by David W. Dossett (“Dossett”). Wilson sued Dossett in the Circuit Court for Campbell County (“the Trial Court”). Dossett filed a motion for summary judgment, asserting the affirmative defense for landowners under Tenn. Code Ann. § 70-7-102. The Trial Court held that Dossett was afforded protection under the statute as Wilson had been engaged in recreational activities on Dossett’s land. At a subsequent hearing, the Trial Court found that no exception to the statutory defense was applicable. Wilson appeals. We hold that Tenn. Code Ann. § 70-7-102 applies to shield Dossett from liability as Wilson was engaged in recreational activities on Dossett’s property, and that no exception to the defense is applicable. We affirm the judgment of the Trial Court.

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GL Policy Does Not Cover Financial Advisor's Errors or Omissions, per Eastern Section

TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. W. PHILLIP REED, ET AL.
Court: TN Court of Appeals

Attorneys:

David T. Black, Melanie E. Davis, and Andrew S. Trundle, Maryville, Tennessee, for the appellants, Rufus Everett, Delight Everett, and Lilla Farner.

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

Judge: SWINEY

Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”) sued W. Phillip Reed, Personal Representative of the Estate of Carol LaRue; Rufus Everett; Delight Everett; and Lilla Farner seeking a declaratory judgment with regard to rights and obligations under a commercial general liability insurance policy. Tennessee Farmers filed a motion for summary judgment. After a hearing the Trial Court entered its order on June 12, 2012 granting Tennessee Farmers summary judgment after finding and holding, inter alia, that the insurance policy was not ambiguous, that the phrase “property damage” in the insurance policy did not include the type of loss allegedly suffered by the Everetts and Ms. Farner, and that the commercial general liability insurance policy provides no coverage to W. Phillip Reed as Personal Representative of the Estate of Carol LaRue for the claims filed by the Everetts and Ms. Farner. Rufus Everett, Delight Everett, and Lilla Farner (“Defendants”) appeal to this Court. We affirm.

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Nashville Meningitis Lawsuits Dropped

In an abrupt reversal, lawyers for local victims of the fungal meningitis outbreak have dropped suits filed in Nashville against the local clinic where the patients were treated and plan to refile the claims against multiple parties in a pending federal court case in Massachusetts. Attorney Bill Leader said the switch from local courts to federal court was necessary so that the victims could make claims against all possible responsible parties, including the Massachusetts drug compounding firm that produced the spinal steroid blamed for the outbreak. The Tennessean has the story.

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Middle Section Reverses Structure Damage Verdict via Policy Exclusion

GREGORY E. HEARN ET AL. v. ERIE INSURANCE EXCHANGE
Court: TN Court of Appeals

Attorneys:

Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Erie Insurance Exchange.

Jean Dyer Harrison, Nashville, Tennessee, for the appellee, Gregory E. Hearn and Kimberlee Hearn.

Judge: BENNETT

Homeowners claim that cracks in the exterior bricks of their home were caused by blasting in the neighborhood. Their insurance company denied coverage under the homeowner policy. The jury returned a verdict in favor of the homeowners. Based upon our construction of the insurance contract and its exclusion for damage caused by earth movement, we conclude that the judgment approving the verdict is erroneous and must be reversed.

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Meningitis Suits Against Tennessee Providers to Remain in State

In a major victory for a handful of the local victims of a nationwide meningitis outbreak, a federal judge has ruled that — at least for now — their cases will proceed before a circuit court judge in Nashville and could eventually be tried by a local jury. In a 33-page ruling issued late Friday, U.S. District Judge F. Dennis Saylor IV in Boston ruled that victims who have sued only local healthcare providers, and not the compounder who provided the drugs, may keep their cases in Tennessee. Meanwhile, the more-than-100 suits that include claims against the New England Compounding Center will be consolidated in Saylor’s court. The Tennessean has the story.

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Middle Section Affirms Summary Judgment Based on Sudden Unforeseeable Physical Incapacity

GEORGE SMITH v. GENERAL TIRE AND EMILY ALEXANDER
Court: TN Court of Appeals

Attorneys:

Herbert Schaltegger, Thomas R. Lewis, Nashville, Tennessee, for the appellant, George Smith.

W. Bryan Brooks, Alisha M. Toll, Benjamin J. Miller, Nashville, Tennessee, for the appellees, General Tire and Emily Alexander.

Judge: COTTRELL

A man who was injured in a head-on collision filed suit against the woman driving the car that hit him and the company that owned the car. The defendants filed a motion for summary judgment, accompanied by affidavits indicating that the woman unexpectedly blacked out just prior to the collision, probably as a result of her diabetic condition. After examining the affidavits of medical experts for both the plaintiff and the defendants, the trial court granted summary judgment to the defendants, holding that the driver’s loss of consciousness was unforeseeable. The plaintiff appeals the summary judgment. We affirm the trial court.

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GTLA Trumps Med Mal Act, Per Eastern Section

MARTIS J. KELLEY ET AL. v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
Court: TN Court of Appeals

Attorneys:

Jimmy W. Bilbo and Brent J. McIntosh, Cleveland, Tennessee, for the appellants, Martis J. Kelley and Joseph Kelley, Sr.

Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority.

Judge: SUSANO

This is a medical malpractice action filed pursuant to the Tennessee 1 Medical Malpractice Act (“the TMMA.”) The plaintiffs are wife and husband. The sole defendant is a governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The defendant operates a hospital in Chattanooga. The complaint alleges that wife was a victim of medical malpractice at the hospital in February 2010. On February 2, 2011, the plaintiffs sent the notice required by Tenn. Code Ann. § 29-26-121(a) (2012), a part of the TMMA. On June 3, 2011, the plaintiffs filed suit against the Hospital Authority. The Authority filed a motion to dismiss pursuant to the provisions of Tenn. R. Civ. P. 12(6), arguing that the suit was not timely filed because it was not filed within the one-year statute of limitations, Tenn. Code Ann. § 29-20-305(b) (2012), set forth in the GTLA. The plaintiffs responded that the period of limitations was extended by 120 days by Tenn. Code Ann. § 29-26-121(c) because the plaintiffs had complied with the pre-suit notice requirements of Tenn. Code Ann. § 29- 26-121(a). The trial court dismissed the complaint as untimely filed. The plaintiffs appeal. We affirm.

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Bankruptcy Trustee's Intervention Relates Back to the Date of Filing by Debtor, Western Section Rules

BERLINDA LANE, AND EDWARD L. MONTEDONICO, AS CHAPTER 7 TRUSTEE FOR THE ESTATE OF BERLINDA LANE v. JACOB L. DANIEL AND DANIEL J. LUND
Court: TN Court of Appeals

Attorneys:

James E. Bailey, III and R. Campbell Hillyer, Memphis, Tennessee, for the appellants, Edward L. Montedonico, as Chapter 7 Trustee for the Estate of Berlinda Lane.

Christopher L. Richardson, Nashville, Tennessee, for the appellee, Daniel J. Lund.

Dawn Davis Carson, Russell B. Jordan, and Hal S. Spragins, Jr., Memphis, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company.

Judge: STAFFORD

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations. Accordingly, we reverse and remand.

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Court Agrees to Hear 2 New Civil Cases

The Tennessee Supreme Court recently agreed to hear two civil cases. The first addresses business liability when customers injure third parties. The suit will test whether businesses have a duty to take steps to protect customers from reasonably foreseeable risks, which in this case involved an inebriated customer who was expelled from the store and then caused a car accident in the parking lot. The second case concerns surrogacy agreements and the rights of a surrogate who changed her mind about giving up the child. The Raybin Perky Hot List has a summary of each case.

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Columns Cover Common Law, Parenting Plans, Impeachment

If you haven't yet had a chance to read all of this month's Tennessee Bar Journal, be sure not to miss the works of Journal columnists John Day, who writes about common law, Marlene Eskind Moses, who explains how and when to modify permanent parenting plans, and Don Paine, who tells readers about the impeachment trial of President Andrew Johnson.

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New Meningitis Suit Filed in Nashville Court

An 86-year-old Nashville woman has become the fourth victim of the fungal meningitis outbreak to file suit against Saint Thomas Outpatient Neurosurgical Center, The Tennessean reports. In a complaint filed late last week, attorneys for Virginia Neely allege that she was sickened after getting two injections of a tainted spinal steroid. She is seeking $3 million in compensatory damages. Neely previously sued the New England Compounding Center, the company blamed for shipping the tainted medicine. That suit, however, has been put on hold because the company has filed for bankruptcy. Neely’s suit is expected to be sent to Judge Joe P. Binkley Jr., who already is handling the three previously filed cases.

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Davidson County Circuit Judge Correctly Refused Recusal, Middle Section Rules

IN RE: BRIDGESTONE CORPORATION, ET AL.
Court: TN Court of Appeals

Attorneys:

Steve North, Madison, Tennessee; Richard L. Denney, Lydia JoAnn Barrett, Norman, Oklahoma; Robert L. Langdon, J. Kent Emison, Lexington, Missouri, counsel for the appellants, Nos. 05C-1552 (Torres), 05C-1555 (Rodriguez), 05C-1556 (Santin), 05C-1560 (Hernandez); Douglas S. Johnston, Jr., Nashville, Tennessee, counsel for the appellants, Nos. 05C-1561 (Rivera Ruiz), 05C-1570 (Crispo Valdiva).

Stephen A. Marcum, Huntsville, Tennessee; Gregory G. Garre, Roman Martinez, Washington, DC, for the appellee, Ford Motor Company.

A. Scott Ross, James F. Sanders, Nashville, Tennessee; Marc R. Brousseau, Denver, Colorado; Scott G. Edwards, Dallas, Texas; Craig A. Morgan, Austin, Texas; Warren E. Platt, Phoenix, Arizona, for the appellees, Bridgestone Corporation and Bridgestone/Firestone North American Tire, LLC.

Judge: COTTRELL

This appeal arises out of the second consolidated case to be tried in a number of related cases involving accidents that occurred in Mexico and allegedly were caused by defective tires and/or vehicles. The trial judge denied the plaintiffs’ motion that he recuse himself. The motion was based upon allegations of the appearance of bias or prejudice. Having reviewed the filings in this appeal under the required de novo standard of review, we affirm the trial court’s denial of the motion.
 

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Knox Schools Not Responsible for Boorish Behavior of Scandalous ROTC Instructor, Per Court of Appeals Ruling

JANE DOE v. KNOX COUNTY BOARD OF EDUCATION ET AL.
Court: TN Court of Appeals

Attorneys:

Andrew C. Clarke, Memphis, Tennessee, for the appellant, Jane Doe.

Susan E. Crabtree and Amy S. Hickerson, Knox County Law Director’s Office, Knoxville, Tennessee, for the appellee, Knox County Board of Education.

This action against David Higgins (“the Instructor”) and his employer, the Knox County Board of Education (“KCBE”), is based upon events that occurred while the plaintiff Jane Doe1 (“the Student”) was a freshman ROTC2 student at West High School in Knoxville. In simple terms, the Instructor allowed the Student and other female ROTC students to drink alcohol to the point of intoxication and, while they were intoxicated, he persuaded them to expose their breasts. The Student reported the episodes to the school and her parents when the Instructor’s demands escalated to the point that he repeatedly encouraged the Student to allow him to film her and others in a sexual “threesome.” The case went to trial. The claims against the Instructor were tried to a jury. The claims against KCBE pursuant to the Governmental Tort Liability Act (“the GTLA”) were heard simultaneously by the trial court. The jury awarded the Student damages against the Instructor in the amount of $65,000 for negligent infliction of emotional distress. It rejected the claim of intentional infliction of emotional distress. The portion of the court’s judgment pertaining to the claims against the Instructor is not at issue in this appeal. The trial court determined that KCBE was not liable for the Instructor’s actions because the court concluded he was acting outside the scope of his employment. The court further determined that there was no negligence upon which liability as to KCBE could be imposed. After the judgment was entered, the Student learned that the trial judge’s wife was a retired employee of KCBE. On that basis, the Student moved the court to recuse itself and award her a new trial. The court denied the Student’s post-trial motion. The Student appeals only as to the claims against KCBE. We affirm.

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Workers' Comp Overhaul Adopted; McNally Amendment Still Alive

The bill (SB 200) to overhaul the workers’ compensation system, transfer responsibility to an administrative judiciary and narrow the range of discretion in the system received easy final passage in the state House today.

Meanwhile, budget deliberations, which will formally resume on Monday afternoon, continue to include the McNally amendment. With only one week likely left in the session, and most notice and other rules suspended, advocates must now expand their focus to all members of the Senate Finance Committee to try to head off quick adoption of the proposal by the chair.

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Nashville Attorneys Appointed to Key Roles in Meningitis Case

Mark Chalos of Leiff Cabraser Heinmann & Bernstein has been appointed federal-state-liaison counsel for the large product liability lawsuit against the New England Compounding Pharmacy. He will coordinate communication with attorneys handling cases against the company, which filed for bankruptcy late last year after it shipped to hospitals and other care providers tainted materials that led to an outbreak of fungal meningitis. The Nashville Post reports that Chalos has also been named to a seven-members plaintiff’s steering committee, joining Nashville lawyer Gerard Stranch, a member at Branstetter Stranch & Jennings. That committee, which will coordinate the pretrial discovery on behalf of the plaintiffs, also includes attorneys from Boston, Atlanta, Michigan and Virginia.

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One Judge to Handle All Local Meningitis Suits

Davidson County Circuit Judge Joe P. Binkley Jr. has ordered that three pending and any similar future local cases involving the fungal meningitis outbreak to be assigned to him only. In a one-paragraph order, Binkly granted a request from lawyers for the Saint Thomas Outpatient Neurosurgical Center that all pending and future meningitis suits against their clients be assigned to a single judge. The Tennessean has the story.

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Memphis Lawyer Accused in Alleged Insurance Scam

William L. Hendricks, a former partner in the Memphis law firm Evans-Petree PC has been arrested on charges of theft, conspiracy to commit theft and money laundering in connection with a bogus health-insurance operation in Springfield. According to the Tennessee Attorney General’s office, Hendricks, Springfield businessman Bart S. Posey Sr. and his former business partner, Richard “Rick” Bachman Jr. of Texas, are charged with the theft of $225,000 in insurance premiums that came from some of the victims of a nationwide health-insurance scam that netted more than $20 million from about 12,000 victims. The Tennessean has the story.

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Tennessee Latest State to Have Tort Limits Challenged

The attorney of a teen hurt in a four-wheeler accident is challenging the constitutionality of Tennessee law that caps damages on tort suits, claiming it violates the right to trial by jury enshrined in the Tennessee Constitution. According to the ABA Journal, under the Civil Justice Act of 2011, noneconomic damages are capped at $750,000 and punitive damages at either twice the amount of compensatory damages or at $500,000, whichever is greater. Tennessee is only one of several states where damage cap legislation is being challenged in court. While the Missouri Supreme Court ruled the noneconomic damage limits were unconstitutional, the Kansas court upheld a cap as a way to further the public interest in ensuring affordable and available health care and reduce the cost of malpractice insurance.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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Proactive Liability Insurer Jumps the Gun, per Middle Section

NORTHLAND INSURANCE COMPANY v. MICHAEL BURTON AND DONALD BURTON d/b/a BURTON BROTHERS TRUCKING
Court: TN Court of Appeals

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Michael Burton and Donald Burton d/b/a Burton Brothers Trucking.

Samuel A. Baron, Nashville, Tennessee, for the appellee, Northland Insurance Company.

Judge: COTTRELL

Insurance Company provided Trucking Company with a general liability insurance policy that included the MCS-90 endorsement required by the Motor Carrier Act of 1980. A woman who was a passenger in the insured’s tractor made a claim against Insurance Company for injuries she sustained after the tractor turned over. Insurance Company paid the woman’s claim even though she had not filed a complaint or obtained a judgment against Trucking Company/Insured. Insurance Company then filed a complaint against Trucking Company seeking reimbursement for the amount it paid out. Trial court awarded Insurance Company reimbursement. We reverse because no judgment had been obtained against Trucking Company when Insurance Company paid the woman’s claim. The MCS-90 endorsement is not triggered unless an injured member of the public recovers a final judgment against a motor carrier/insured. Therefore, Insurance Company had no right of reimbursement.

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