News

Tort Victims Not Allowed to Intervene Onto Tort Defendant's Wrongful Death Case Against Government

CHRISTOPHER J. WHITE, ET AL. v. LISA M. JOHNSON, ET AL. v. CITY OF MEMPHIS, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Lenal Anderson Jr., Memphis, Tennessee, for the appellants, Christopher J. White, and Angelique Marie White.

Howard B. Manis and Andrew C. Clarke, Memphis, Tennessee, for the appellees, Lisa M. Johnson and Sherkita Lockhart.

Judge: STAFFORD

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

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Parents Not Liable for Conduct of Adult Child Off Premises and When Not Entrusted Personal Property, per Court of Appeals

LLEN RIGGS v. RICHARD B. WRIGHT, ET AL.
Court: TN Court of Appeals

Attorneys:

C. Wesley Fowler and Jonathan O. Richardson, Memphis, Tennessee, for the appellant, Allen Riggs.

Bradford D. Box and J. Caleb Meriwether, Jackson, Tennessee, for the appellees, Larry F. Wright, Sr., and Marianne D. Wright.

Judge: STAFFORD

The plaintiff filed this case against an adult defendant and his parents, after the adult defendant allegedly attacked the plaintiff. The trial court granted parents’ motion to dismiss, concluding that no special relationship existed between the adult defendant and his parents that would confer a duty on parents to control the adult defendant, a guest in parents’ home. Discerning no error, we affirm.

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Dismissal of Suit After Stroke Affirmed by Appeals Court

JAMES BOSHEARS v. CLEAVE C. BROOKS
Court: TN Court of Appeals

Attorneys:

Timothy L. Baldridge, Knoxville, Tennessee, for the appellant, James Boshears.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellee, Cleave C. Brooks.

Judge: SWINEY

This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.

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New Litigation Courses Now Available Online

Online CLE programs offering insight into a range of litigation matters are now available online. Sessions cover med-mal updates, third party reviews, the ethical use of social media and effective deposition strategies. Check these courses out at the links above.

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Tennessee Eligible for $55M from VW Settlement

Volkswagen will pay $570 million to compensate American consumers and buy back or fix falsely-marketed diesel vehicles, the Tennessee Attorney General announced today. Under the deal, car owners in Tennessee will be eligible to receive $12.6 million. Volkswagen also will spend $2.7 billion on programs to reduce nitrogen oxide, $2 billion to develop zero-emission cars and $20 million to compensate states for their legal costs and pay for future investigations into emissions violations. The settlement ends a multistate action brought by 43 state attorneys general on grounds that Volkswagen sold more than 570,000 diesel vehicles in the United States with devices intended to circumvent emissions standards. Learn more about submitting a claim.

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Med Mal Suit Fails on Expert Proof and Causation; Summary Judgment is Affirmed

AMANDA GILREATH, ET AL. v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, ET AL.
Court: TN Court of Appeals

Attorneys:

Jimmy W. Bilbo and Brent McIntosh, Cleveland, Tennessee, for the appellants, Amanda Gilreath and Jason Gilreath.

Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority, individually and d/b/a Erlanger Health System.

Judge: MCCLARTY

This is a medical malpractice action1 in which the plaintiffs filed suit against the defendant hospital. The defendant hospital requested summary judgment. The trial court granted summary judgment and dismissed the action. We affirm.

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'Valid Excuse' for Violating Safety Rule Falls Short in Work Comp Appeal

DAMON HAWKS V. LISA CHRISTIAN, ET AL.
Court: TN Workers Comp Appeals

Attorneys:

Michael L. Haynie, Nashville, Tennessee, for the appellants, Eric Christian, Lisa Christian, Christian Construction, Inc., and Auto Owners Insurance Company.

Matt McFarland, Nashville, Tennessee, for the appellee, Damon Hawks.

Judge: COTTRELL

In this workers' compensation case, the employee sustained an injury in the course of his employment when he fell off a roof. His employer denied the employee's claim for workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-110 because the employee failed to use a required safety appliance. The trial court found that the employee provided a valid excuse for failing to wear the required equipment and awarded benefits. The employer has appealed. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. We reverse the judgment of the trial court.

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Judge Seeks to Dismiss Baptist Healing's Pensions Suit

Federal Magistrate Judge Joe Brown is recommending that Baptist Healing Trust's suit against Pension Benefits Guaranty Corp. be dismissed, noting that 2,000 Baptist Healing pensioners will have have no recourse to recover their pensions if the case proceeds. Baptist Healing, which sold most of its assets to Ascension Health, claims the hospital is exempt from federal regulation because the Employment Retirement Income Security Act contains an exemption for "church plans.” Read more from the Nashville Post

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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MUST READ CASE: Out of Appeals in Dedmon Opinion Clarifies Proof on Discounted Medical Charges in Tort Actions

Personal injury lawyers have eagerly awaited clarification of the extent to which West v Shelby County Healthcare has implications beyond the Hospital Lien Act.  In Dedmon v Steelman the Court of Appeals shed additional light last Thursday.  

The majority opinion authored by Judge Gibson limited the controlling impact of West to hospital lien cases, while permitting evidence of both “sticker price” medical charges and discounted charges as competent expert proof is available on a case by case basis. In essence, if a witness will say it, a jury will hear it—whether unreduced charges or discounted charges.  Caution was reiterated that under the Collateral Source Rule, the identity of any collateral entity making payments on behalf of an injury plaintiff is still precluded. The majority opinion implored the Supreme Court to offer guidance.

In a concurring opinion authored by Special Judge Joe Riley, an end to the present system of offering jurors “misleading data” on true medical charges was urged but the concurring judge expressed his belief that any opinion that would preclude introduction of “sticker price” medical charges would fall within the province of the Supreme Court.

In Dedmon, the specific ruling was to remand the case to the Circuit Court for development of proof as to what would constitute reasonable medical charges.

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Insured Keeps Fire Verdict But Loses Punitives and Bad Faith Penalty in Court of Appeals

JUDY LANCE d/b/a J&B DISCOUNT v. OWNER’S INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

N. Mark Kinsman, Hixson, Tennessee, and Gaëtan Gerville-Réache, Grand Rapids, Michigan, for the appellant, Owners Insurance Company.

Robert G. Norred, Cleveland, Tennessee, for the appellee, Judy Lance d/b/a J&B Discount.

Judge: MCCLARTY

This is a breach of insurance contract action for failure to remit payment pursuant to a business-owners policy after the subject property was destroyed by fire. The case proceeded to jury trial. After denying the insurance company's motion for a directed verdict, the court submitted the case to the jury. The jury found that the plaintiff was entitled to recover under the policy and awarded compensatory and punitive damages and prejudgment interest. The jury also imposed a bad faith penalty and damages pursuant to the Tennessee Consumer Protection Act. The insurance company appeals. We affirm in part and reverse in part.

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Jury Awards $2M to Conductor Struck by Train

A jury this week awarded railroad conductor Shawn Hall more than $2 million after he was struck by a train in Shelby County, even after determining that Hall was 50 percent responsible for the accident. Hall, who lost part of his leg and fractured both of his arms in the accident, argued Illinois Central Railroad Company was negligent because it failed to warn him of the unscheduled train that hit him. Read more from The Commercial Appeal

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Wearable Tech May Aid in Personal Injury Claims

“In the world of personal injury law wearable tech may become a pivotal element in bringing justice to those who have become victims,” according to Law Technology Today. The article explores the use of items like Smartwatches when making a personal injury claim, along with the possible issues that could arise from misusing the technology.  

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Wearable Tech May Aid in Personal Injury Claims

“In the world of personal injury law wearable tech may become a pivotal element in bringing justice to those who have become victims,” according to Law Technology Today. The article explores the use of items like Smartwatches when making a personal injury claim, along with the possible issues that could arise from misusing the technology.  

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Premises Case Summary Judgment Denial Reversed and Case Dismissed by Court of Appeals

SANDRA GIBSON v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF MIDDLE TENNESSEE
Court: TN Court of Appeals

Attorneys:

Brian Walthart and Richard Charles Mangelsdorf, Jr., Nashville, Tennessee, for the appellant, Young Men’s Christian Association of Middle Tennessee.

Robert John Foy, Murfreesboro, Tennessee, for the appellee, Sandra Gibson.

Judge: GIBSON

This is an appeal from an order denying summary judgment. The appellee signed a YMCA membership application and release agreement prior to tripping and falling on a sidewalk in front of the YMCA. The appellee filed suit, alleging negligence. The YMCA then filed a motion for summary judgment, claiming that the appellee expressly assumed the risk of her injuries. The trial court denied the YMCA’s motion for summary judgment but granted a motion for interlocutory appeal. We reverse the trial court’s order denying summary judgment and remand with instructions to enter summary judgment.

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We Are Looking for a Few Good Lawyers to Join the TBA Tort & Insurance Law Section Executive Council!

The TBA Tort & Insurance Law Section Executive Council are looking for individuals who would like to join the executive council and assist with the development of the section's CLE program, discussing and providing opinions on potential legislation that may be brought up during the legislative session, and producing news to the section.

If you are intested in joining the Executive Council, please contact me via email by Friday, June 10, 2016.  Please put TBA TORT & INSURANCE LAW SECTION EXECUTIVE COUNCIL in the Subject line of your email.  Your information will then be submitted to the Executive Council for review.

If you have any questions, please feel free to contact me. We look forward to you joining the Executive Council!

 

-- Christy Gibson, TBA Tort & Insurance Law Section Coordinator

 

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School Board Approves Settlement Following Leaked Student Information

The Williamson County School Board approved last night a $36,500 counter settlement to a pending lawsuit, The Tennessean reports. The counter settlement came in response to the threat of a lawsuit that alleges a special needs student suffered from leaked student information and the board's reaction to a school fight.

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Res Ipsa Fails to Salvage Suit for Elevator Occupant Who Fell

KARLA J. DENNIS, ET AL. v. DONELSON CORPORATE CENTRE I, LP, ET AL.
Court: TN Court of Appeals

Attorneys:

Tim L. Bowden, Goodlettsville, Tennessee, for the appellants, Karla J. Dennis and Stanley Dennis.

T. Tamara Gauldin, Atlanta, Georgia, for the appellee, Nashville Machine Elevator Co., Inc.

Judge: ARMSTRONG

This is a negligence case. Appellee, an elevator maintenance company, contracted with building owner to provide maintenance service for the building‟s elevators. Plaintiff was injured when one of the elevators allegedly did not level properly, causing her to fall as she was exiting the elevator. Plaintiff and her husband brought suit against the building's owner, the building's management company, and Appellee. Appellee filed a motion for summary judgment, which the trial court granted. Appellants appeal.

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Journal Columns Cover Family Law, Torts, Mentoring

If you are looking for some weekend reading, catch up on the Tennessee Bar Journal columns that are in this month's issue. Marlene Eskind Moses and Benjamin Russ explain Qualified Domestic Relations Orders and state/local government pensions; John Day writes about surviving spouses and wrongful death claims; and TBA President Bill Harbison explains how important mentor relationships can be. Bill Haltom recalls two mentors he and his family lost recently, Howard and Claude Swafford -- his "two favorite courthouse square lawyers."

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Court Rules Health Care Subsidies Unconstitutional

A federal judge today ruled that the administration is unconstitutionally subsidizing medical bills for millions of people while ignoring congressional power over government spending, WSMV reports.  The ruling from U.S. District Judge Rosemary Collyer was a win for House Republicans who brought the politically charged legal challenge in an effort to undermine Obama-backed health care reforms. At issue is the $175 billion the government is paying to reimburse health insurers over a decade to reduce deductibles and co-payments for lower-income people.

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Court of Appeals Affirms Summary Judgment in Auto Store Slip and Fall Case

CAROL MOONEY, ET AL. v. GENUINE PARTS COMPANY d/b/a NATIONAL AUTOMOTIVE ASSOCIATION, INC. (“NAPA”), ET AL.
Court: TN Court of Appeals

Attorneys:

J. Mark Patey, Jackson, Tennessee, for the appellants, Carol Mooney and Joey Mooney.

Brian Kirk Kelsey, Collierville, Tennessee, for the appellees, Genuine Parts Company d/b/a National Automotive Association, Inc. (“NAPA”), Genuine Parts Company d/b/a NAPA Auto & Truck Parts/NAPA Auto Parts Store #07038, and Wayne Climer.

Judge: GIBSON

This appeal arises out of a premises liability case involving a plaintiff who fell while exiting an auto parts store. The trial court granted the defendants? motion for summary judgment. We affirm and remand for further proceedings.

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False Light Invasion of Privacy Claim of Judge Dismissed for Want of Sufficient Proof of Actual Malice

DANIEL B. EISENSTEIN v. WTVF-TV, ET AL.
Court: TN Court of Appeals

Attorneys:

Robert L. Delaney, Nashville, Tennessee, for the appellant, Daniel B. Eisenstein.

Jon D. Ross and Ronald George Harris, Nashville, Tennessee, for the appellees, WTVF-TV, News Channel 5 Network, LLC, Sandy Boonstra, and Phil Williams.

Judge: BENNETT

On remand from a prior appeal, the parties engaged in discovery and the defendants then moved for summary judgment on the two remaining issues – claims of false light invasion of privacy against a television station and its employees. The trial court granted the motion, finding that the standard of actual malice was not met and awarding discretionary costs against the plaintiff. The plaintiff appealed. We affirm.

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AG: Settlement Reached with Pharmaceutical Company

Attorney General Herbert H. Slatery III announced on Friday that Tennessee reached a $784.6 million settlement with Wyeth, a wholly owned subsidiary of Pfizer Inc. The settlement will resolve allegations that Wyeth knowingly underpaid rebates owed under the Medicaid Drug Rebate Program for the sales of Protonix Oral and Protonix IV between 2001 and 2006. Tennessee will receive an estimated $30.4 million under the settlement.  

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Miss The Annual Section CLE? Watch it On Demand

Videos from the March 17 Tort and Insurance Section CLE are now available online. Speakers include leading Medicare subrogation expert Bryan Moseley, noted author and attorney John Day, and multi-million dollar verdict winning attorney Daniel Clayton.

As a bonus, TBA Tort and Insurance Law Section members receive a section discount for these videos and all other CLE sponsored by the Tort and Insurance Law Section throughout the year.  If you know someone who is not a section member, please encourage him or her to join the Tort and Insurance Law Section today and start saving.

Here are the individual sessions available from the section CLE program:

Tort and Insurance: Medicare Reimbursement and the Secondary Payer Act

Tort and Insurance: Pre-trial Advocacy Tips

Tort and Insurance: Voir Dire

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