News

Deadbeat Dad Retains Wrongful Death Right to Commence Suit Despite Child Support Arrearage

KENNETH M. SPIRES ET AL. v. HALEY REECE SIMPSON ET AL.
Court: TN Court of Appeals

Attorneys:

Timothy A. Roberto and Ralph Brown, Knoxville, Tennessee, for the appellant, Kenneth M. Spires, o/b/o Charity Felicia Spires, deceased; Kenneth M. Spires, individually; and o/b/o Uriah T.S.[H.].

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellee, Captain Dana Trent Hensley, Jr., M.D., f/b/o Uriah T.S.[H.].

Judge: FRIERSON

The surviving spouse in this wrongful death action appeals the trial court‟s dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent‟s fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle. Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother. Upon a subsequent petition filed by the maternal grandmother and maternal uncle in the Monroe County Chancery Court, the surviving spouse‟s parental rights to the child were terminated and a decree of adoption was granted to the maternal uncle on August 8, 2012. The child‟s maternal grandmother and adoptive father subsequently filed successive motions to intervene in this action on behalf ot the child. Upon announcement of an agreement as to the settlement amount offered by the defendants‟ insurance company, the trial court entered an agreed order awarding a $100,000.00 judgment against the defendants.1 Following a bench trial regarding the remaining issues, the court found that pursuant to Tennessee Code Annotated § 20-5- 107(b), the surviving spouse was statutorily disqualified from commencing and maintaining this action or collecting any portion of a settlement because he owed outstanding child support arrearages on behalf of children born to four women other than the decedent. We determine that although Tennessee Code Annotated § 20-5-107(b) operates to prohibit the surviving spouse‟s recovery of his one-half of the settlement until his child support obligations are paid, it does not operate to disqualify him from commencing and maintaining this wrongful death action. We therefore reverse the trial court‟s dismissal of the surviving spouse as a plaintiff and the court‟s substitution of the adoptive father as an intervening plaintiff. We remand for distribution of the wrongful death settlement proceeds, one-half toward payment of the surviving spouse‟s child support arrearages with interest, pursuant to Tennessee Code Annotated § 20-5-107(b), and one-half to the minor child in trust with the adoptive father as trustee. We affirm the trial court‟s judgment in all other respects.

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Shattering Display Case Not Foreseeable Cause of Death, per Court of Appeals

COOPER SINGLETARY, ET AL. v. GATLINBURLIER, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

Glenna W. Overton-Clark, Knoxville, Tennessee, for the appellant, Cooper Singletary.

Robert A. Crawford, Knoxville, Tennessee, for the appellees, Gatlinburlier, Inc. d/b/a Gatlinburlier Tobacconist, et al.

Judge: BENNETT

This is a premises liability action. A visitor fainted and fell into an antique, glass display case located in a retail store in Gatlinburg, Tennessee. The glass in the case shattered, piercing her chest and causing her death. Her husband sued the retail store and the mall in which it operated for negligence. The defendants filed a motion for summary judgment, which the trial court granted, finding that the injuries were not reasonably foreseeable. We affirm.

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Confidential Settlement Reached in Erin Andrews Case

Television personality Erin Andrews reached a settlement today in her lawsuit against West End Hotel Partners and Windsor Capital Group, the hotel owner and operator that allowed a stalker to secretly record her naked though a peephole. The Tennessean reports the terms of the agreement are confidential. A Nashville jury awarded Andrews $55 million in March and said Andrews’ stalker, Michael David Barrett, was responsible for $28 million of that. Attorney Randall Kinnard, who represented Andrews, had asked the judge to hold the hotel responsible for the full $55 million. 

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Suit Claims Detective Given Fatal Overdose at Hospital

A $7.5 million wrongful-death suit was filed Friday in Knox County Circuit Court against UT Medical Center and University Health System Inc. on behalf of a detective’s widow. The Knoxville News Sentinel reports the lawsuit claims Jacksboro Police Department Detective Mike Starrett died in January due to an overdose of pain medication while he was being treated for injuries due to a car crash. The suit, filed by attorneys Gregory P. Isaacs and Chris Coffey, also states Starrett’s widow did not learn the true cause of her husband’s death until three months after he died. 

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Pro Se Widower's Timely Complaint Insufficient to Save SOL in Med Mal Case

LINDA BEARD V. JAMES WILLIAM BRANSON ET AL.
Court: TN Court of Appeals

Attorneys:

David L. Johnson, Nashville, Tennessee; James T. McColgan, III, and Sherry S. Fernandez, Cordova, Tennessee, for the appellant, Trinity Hospital, LLC.

Philip N. Elbert, Nashville, Tennessee, for the appellee, Linda Beard.

Judge: CLEMENT

The dispositive issue in this wrongful death action is whether the pro se complaint filed by the decedent?s surviving spouse tolled the statute of limitations. The defendants, a hospital and a physician, filed a motion for summary judgment, arguing that the complaint was a nullity because the surviving spouse was asserting claims in a representative capacity and the complaint was not signed by a licensed attorney. It is undisputed that the decedent was survived by three heirs, the surviving spouse and two children of the decedent. The trial court denied the motion concluding that, although the pro se complaint could not assert the claims of the children, the surviving spouse could properly assert his own claims. The trial court also held that the initial complaint was sufficient to toll the statute of limitations and the claims of the children were not time barred because a licensed attorney signed and filed an amended complaint that related back to the original filing pursuant to Tenn. R. Civ. P. 15. Following a jury trial, the defendants were found liable and damages were awarded. The hospital appealed. We conclude the claims asserted by the surviving spouse were brought in a representative capacity on behalf of the decedent and were not his individual claims. Filing a complaint on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving spouse was a nullity, it did not toll the statute of limitations and no other complaint was filed within the statute of limitations. Therefore, the trial court erred in denying the hospital?s motion for summary judgment based on the statute of limitations defense. Accordingly, we reverse and remand with instructions to dismiss all claims and vacate all judgments against the hospital.

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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House Civil Justice Committee Forwards Bills

The House Civil Justice Committee this week sent several bills to the House floor before it closed for the year. Among those are: changes to the conservator law, HB2030 by Rep. Jeremy Faison, R-Cosby; changes to the tolling statute for those persons who “lack capacity” were made with HB1651 by Rep. David Hawk, R-Greenville; and HB2033, also by Rep. Faison, as amended creates civil immunity for those property owners who do not post “no guns allowed” signs.

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Worker's Stepson May Still Receive Benefits Following Widow's Death

The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel last week reversed a lower court ruling that could mean Ashland City-based Trinity Marine Products Inc. is still liable for payments to the estate of a worker whose widow died before receiving benefits. The widow, Marilyn Stamps, claimed her husband died from an occupational lung disease and that she and her son were entitled to workers comp benefits, Business Insurance reports. Stamps died in 2014. The Chancery Court agreed with Trinity when the company argued that the right to receive benefits terminates upon the surviving spouse’s death. The case has been remanded to the trial court.

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Tennessee Payout Unknown in Meningitis Outbreak Settlement

The amount Tennessee meningitis patients will recoup in a $200 million settlement fund that stems from a 2012 outbreak remains unknown at this time, The Tennessean reports. The settlement comes as part of Massachusetts-based New England Compounding Center’s bankruptcy filing, the company linked with contaminated steroid medicine that was used in spinal injections as pain treatment. Several Tennessee companies are named as defendants in the suit. Sixteen Tennesseans died as a result of the outbreak. 

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Student Sues Anderson School Over Partially Amputated Thumb

A student at Anderson County Career and Technical Center, who reportedly had part of his left thumb amputated, filed a lawsuit against a teacher and the Anderson County Board of Education. The complaint alleges he was not properly taught and supervised how to use a grinder. The Knoxville News Sentinel reports the student is seeking compensatory damages "not to exceed the lesser or $500,000.00, or the applicable limits of liability for Anderson County."

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Public Duty Doctrine Defeats GTLA Claim in Middle District

HENRY HOLT, SR., ET AL. v. CITY OF FAYETTEVILLE, TENNESSEE, ET AL.
Court: TN Court of Appeals

Attorneys:

Blair Durham and Michael B. Schwegler, Nashville, Tennessee, for the appellants, Gavin Holt, Destany Holt, Devin Gooding, Deanna Gooding, Henry Holt, Sr., Henry Holt, Jr., Monica M. Gooding, Jeffrey Gooding, and Windy Wallace.

Kristin Ellis Berexa and Laura Adams Hight, Nashville, Tennessee, for the appellees, City of Fayetteville and Fayetteville Police Department.

Judge: MCBRAYER

Plaintiffs, on behalf of themselves and a deceased family member, sued the City of Fayetteville and others for wrongful death and personal injuries resulting from an automobile accident involving a stolen police car. Plaintiffs alleged a police officer negligently failed to secure a suspect after placing her in the police car. The suspect then stole the police car, drove away at a high rate of speed, and collided with the plaintiffs‟ vehicle. The City moved to dismiss on the grounds that it was immune from suit based upon the public interest doctrine, and the trial court granted the motion. We affirm the dismissal.

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Insurance Costs Reduction Act Deferred to Summer Study Committee

The House Insurance and Banking Subcommittee today deferred to a Summer Study Committee a bill (HB546) referred to as the Insurance Costs Reduction Act, sponsored by Rep. Glen Casada, R-Franklin. The bill is the vehicle for the creation of the Patient Compensation System, a workers' comp-like system for medical malpractice.

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Supreme Court Reverses Dismissal of Suit Against Law Firm, Says Claim Was Timely Filed Under Savings Statute

The Tennessee Supreme Court this week reversed a lower court’s dismissal of a professional negligence lawsuit filed by Circle C Construction LLC against the Kentucky firm of Furman, Nilsen & Lomond PLLC. The firm represented Circle C in a case brought by the United States under the False Claims Act. Circle C appealed the federal court’s decision in the case and entered into an agreement with the firm that included a deadline for it to file a lawsuit against the firm that would extend 120 days after the appeal’s court issued a decision. Circle C voluntarily dismissed the negligence suit against the firm in 2012, but later refiled it in 2013 after the the decision was issued by the appeals court. The firm’s attorneys claimed that Circle C’s case was filed too late; the trial court and Court of Appeals agreed, dismissing the suit. Circle C appealed to the state Supreme Court, where justices ruled that the savings statute applies to the claim and it can proceed. Read the majority opinion in Circle C Construction, LLC v. D. Sean Nilsen et al., authored by Chief Justice Sharon G. Lee, and the separate opinion concurring in part and dissenting in part, authored by Justice Holly Kirby.

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$10M Suit Filed Against Bus Driver Charged With Rape

A $10 million lawsuit was filed Thursday against a Hamilton County bus driver charged with the 2015 rape of a teenage student, the Times Free Press reports. The teen’s guardians are seeking the amount in punitive and compensatory damages and have requested a jury trial.

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Tort and Insurance Forum Planned for March 17

The Tort and Insurance Forum, a one-day seminar, is planned for March 17 at the Tennessee Bar Center in Nashville. Topics include best practices in federal trial prep, pre-trial advocacy tips and Medicare reimbursement. The forum, scheduled from 8:30 a.m. – 4:30 p.m., provides 6.5 CLE credits and lunch will be provided. Tort and Insurance Law Section members are eligible for a discounted price.

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East Section Affirms Med Mal Dismissal Based on Sovereign Immunity but Reverses Statute of Limitation Dismissal of Claim Against Doctor

JUSTIN R. ROGERS V. BLOUNT MEMORIAL HOSPITAL, INC., ET AL.
With concurring opinion.
Court: TN Court of Appeals

Attorneys:

Sidney W. Gilreath, Cary L. Bauer, and Matthew B. Long, Knoxville, Tennessee, for the appellant, Justin R. Rogers.

Carl P. McDonald and Diane M. Hicks, Maryville, Tennessee, for the appellee, Blount Memorial Hospital, Inc.

Judge: FRIERSON

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI‟s immunity as a governmental entity. The court subsequently granted summary judgment to the defendant doctor based on the statute of limitations. The plaintiff timely appealed. Determining that a genuine issue of material fact exists regarding when the plaintiff was aware of facts sufficient to place him on notice that his injury was allegedly the result of the defendant doctor‟s wrongful conduct, we conclude that summary judgment was improperly granted to the defendant doctor. We affirm the trial court‟s grant of summary judgment in favor of BMHI.

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Swiney Concurring

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Middle Section Affirms Admission of Light Impact Auto Damage Photos in Personal Injury Trial

S. CARMACK GARVIN, JR., ET AL. v. JOY MALONE
Court: TN Court of Appeals

Attorneys:

August C. Winter, Brentwood, Tennessee, for the appellants, S. Carmack Garvin, Jr. and Barbara F. Garvin.

Russell E. Reviere, Keely N. Wilson, and Brandon W. Reedy, Jackson, Tennessee, for the appellee, Joy Malone.

Judge: BENNETT

Plaintiffs and Defendant were involved in a motor vehicle accident. Plaintiffs allege Defendant was negligent in causing her van to run into the rear of their car and that as a result of Defendant’s negligence, Plaintiffs suffered damages. During trial, Defendant introduced photographs of the vehicles taken immediately after the collision, which the trial court permitted, over Plaintiffs’ objection, for the purpose of impeaching Plaintiffs’ testimony. The evidence was heard by a jury, which determined Defendant was not at fault. Plaintiffs filed a motion for a new trial, which the trial court denied. On appeal, Plaintiffs argue the trial court erred by allowing the jury to consider Defendant’s photographic evidence for purposes of impeachment. We conclude the trial court did not err and affirm its judgment.

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Wrongful Death Suit Against Bar Can Proceed

Circuit Court Judge Bill Ailor ruled Friday that a $7.5 million wrongful death lawsuit against Knox County’s Bailey's Sports Grille can proceed, the Knoxville News Sentinel reports. The bar is accused of over-serving 19-year-old Evan Hall, who later crashed his vehicle into the residence of Jack Bush and his parents. Bush fatally shot Hall. T. Scott Jones and Chris W. Beavers, attorneys for Hall's parents, argued the lawsuit could only be dismissed by showing Hall did something to cause his death.

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Western Section Dismisses ATV Accident Claim — No Gross Negligence Found

HOMER McCAIG, ET AL. v. ROY L. WHITMORE
Court: TN Court of Appeals

Attorneys:

Adam M. Nahmias, Memphis, Tennessee, for the appellants, Homer McCaig and Kelly McCaig.

Bradford D. Box, Nathan E. Shelby, and Adam P. Nelson, Jackson, Tennessee, for the appellee, Roy L. Whitmore.

Judge: ARMSTRONG

This is a premises liability case. Appellant Homer McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Appellee Roy Whitmore‘s property. The trial court determined that Mr. Whitmore owed no duty to the McCaigs based on the Tennessee Recreational Use Statute (―TRUS∥), Tennessee Code Annotated Sections 70-7-101 et seq. The trial court granted summary judgment in favor of the Appellee based on its determination that no exceptions to the statute were applicable. Discerning no error, we affirm and remand.

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Insurer Wins DJA on Issue of Use of a Borrowed Landscape Trailer

AUTO-OWNERS INSURANCE COMPANY v. VANESSA HOLLAND, ET AL.
Court: TN Court of Appeals

Attorneys:

John J. Griffin, Jr. and Michael A. Johnson, Nashville, Tennessee, for the appellant, Auto-Owners Insurance Company.

Andy Peters Davis, Winchester, Tennessee, for the appellees, Vanessa Holland and Jezekial Valentin.

Judge: DINKINS

An insurance company which issued a commercial general liability policy to the owner of a lawn care business sought a declaratory judgment that the policy did not provide coverage for a claim brought by the parent of a child who was injured by the gate on a trailer which was used to transport lawn care equipment. The company appeals the denial of its motion for summary judgment. Having determined that the insurance policy does not provide coverage for the claim at issue, we reverse the judgment of the trial court and remand with instructions to grant summary judgment in favor of the insurance company.

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Save the Date: Tort & Insurance Law CLE

Interested in learning about the latest updates in Tort and Insurance law? Want to learn about best practices in federal trial prep, working with mediators, and settling a case outside of court?  If so, then the TBA Tort and Insurance Law Section's Annual CLE is where you need to be on March 17, 2016.  For more information on this great CLE or to register, click here!

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Court to Hear Insurance Law Debate From Bar Altercation

A battle over insurance laws has landed before the state Supreme Court following a man hitting a bar owner in 2012 while driving an Enterprise-Rent-A-Car, The Tennessean reports. Edward Martin, owner of The Pond in Franklin, appealed after a Williamson County judge dismissed the case because Martin’s insurance company claimed its policy supplied to Martin did not cover the Enterprise rental. The rental is considered “self-insured,” not uninsured. "The Court of Appeals (which upheld the Williamson County decision) has created a hole in the coverage of every uninsured motorist coverage plan in Tennessee," Shea Callahan, Martin’s attorney, said.

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Court to Hear Insurance Law Debate From Bar Altercation

A battle over insurance laws has landed before the state Supreme Court following a man hitting a bar owner in 2012 while driving an Enterprise-Rent-A-Car, The Tennessean reports. Edward Martin, owner of The Pond in Franklin, appealed after a Williamson County judge dismissed the case because Martin’s insurance company claimed its policy supplied to Martin did not cover the Enterprise rental. The rental is considered “self-insured,” not uninsured. "The Court of Appeals (which upheld the Williamson County decision) has created a hole in the coverage of every uninsured motorist coverage plan in Tennessee," Shea Callahan, Martin’s attorney, said.

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BlueCross BlueShield to Appeal Breach of Contract Ruling

The Tennessean reports BlueCross BlueShield of Tennessee is appealing a recent decision by the Chancery Court for Tennessee's 20th Judicial District that says BCBST breached a contract with a general insurance agent. The court recently awarded James Walker, the president and owner of Individual Healthcare Specialists, $2.1 million after BCBST was found to have breached a commissions contract. BCBST argued that changes to the contract and commission structure on renewals were due to the Affordable Care Act.

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BlueCross BlueShield to Appeal Breach of Contract Ruling

The Tennessean reports BlueCross BlueShield of Tennessee is appealing a recent decision by the Chancery Court for Tennessee's 20th Judicial District that says BCBST breached a contract with a general insurance agent. The court recently awarded James Walker, the president and owner of Individual Healthcare Specialists, $2.1 million after BCBST was found to have breached a commissions contract. BCBST argued that changes to the contract and commission structure on renewals were due to the Affordable Care Act.

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