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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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Western Section Reverses GTLA Verdict Against County for Ambulance Collision, Awarding County Damages Instead

HARDEMAN COUNTY v. JUDY I. MCINTYRE, ET AL.
Court: TN Court of Appeals

Attorneys:

James I. Pentecost and Melissa K. Van Pelt, Jackson, Tennessee, for the appellants, Hardeman County, Tennessee and Hardeman County Emergency Medical Services.

David A. Stowers and Stephen L. Hale, Bolivar, Tennessee, for the appellees, Judy McIntyre and Billy McIntyre.

Jay G. Bush, Jackson, Tennessee, for the appellee, Judy I. McIntyre.

Judge: STAFFORD

This case concerns the liability for a collision involving a vehicle operated by one of the appellees and an ambulance operated by the appellant county. After a bench trial, the trial court awarded damages to appellee driver against the appellant. After a thorough review of the record, we reverse and remand.

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MUST READ: Eastern Section Offers Comprehensive Opinion on Daubert Challenges and Discovery Sanctions

FRANCES G. RODGERS, ET AL. v. JOHN ADAM NOLL, III
Court: TN Court of Appeals

Attorneys:

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, and M. Sue White, Seymour, Tennessee, for the appellant, Frances G. Rodgers, as next friend of minors Julia Amber Noll and Joshua Aidan Noll.

Brian H. Trammell and Amy V. Peters, Knoxville, Tennessee, for the appellee, John Adam Noll, III.

Judge: SWINEY

Frances G. Rodgers, as next friend of minors Julia Amber Noll and Joshua Aidan Noll (“Plaintiff”) sued John Adam Noll (“Defendant”) for the alleged wrongful death of their mother, Lori Bible Noll (“Deceased”). During discovery, Defendant filed multiple motions alleging discovery violations. After a hearing the Trial Court entered its order on April 25, 2012, which, among other things, imposed sanctions for certain discovery violations and then dismissed Plaintiff’s case due to discovery violations. Plaintiff appeals to this Court. We find and hold that dismissal was too severe a sanction for the discovery violations found. We reverse the dismissal; remand to the Trial Court for a more appropriate award of sanctions; and affirm the remaining specific sanctions awarded by the Trial Court and the remainder of the Trial Court’s April 25, 2012 order.

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ATO, the Sequel: Western Section Again Breathes New Life into Suit Against Fraternity

DAVEY MANN and wife, TERESA MANN v. ALPHA TAU OMEGA FRATERNITY, Inc., a non-profit organization, ET AL.
Court: TN Court of Appeals

Attorneys:

Gary K. Smith, J. Mark Benfield, Memphis, Tennessee, for the appellants, Davey Mann and wife, Teresa Mann

G. Coble Caperton, Mary L. Wagner, Memphis, Tennessee, for the appellee, Alpha Tau Omega Fraternity, Inc.

Judge: HIGHERS

Plaintiffs sued the defendant national fraternity, among others, following an automobile accident with an apparent fraternity pledge. The trial court granted summary judgment to the national fraternity finding that it owed no duty of care to Plaintiffs, and it denied Plaintiffs’ motion to amend to allege the national fraternity’s vicarious liability based upon a principal/agent relationship between the national fraternity and the local fraternity chapter and/or between the national fraternity and local fraternity chapter members/prospective members. For the following reasons, we reverse the trial court’s grant of summary judgment to the national fraternity as well as its denial of Plaintiffs’ motion to amend, and we remand for further proceedings consistent with this opinion.

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Workers’ Comp Bill Set For Finance Consideration

The administration’s bill to overhaul Tennessee's Workers’ Compensation system (SB 200 by Norris / HB 194 by McCormick) is set for its next major legislative consideration this week. Both the Senate and House Finance Committees are expected to take up consideration of the matter, and review, in particular, its fiscal impact. Fiscal estimates for the bill have indicated that the state expects to collect filing fees that now go to court clerks, and that those fees are expected to be sufficient to offset the cost of the new department-based system. As amended, the new legislation would be effective as to cases commenced on or after July 1, 2014. The TBA has continued to emphasize that a change to a more formulaic, purely administrative system is unwise because it does not employ our best dispute resolution mechanism -- the courts -- and does not permit enough discretion to prevent injustice.

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AG to Defend State Damage Limits in Meningitis Lawsuit

Tennessee Attorney General Robert Cooper has filed a motion to intervene and defend state law that caps damages in civil cases, The Nashville Ledger reports. A lawsuit filed by the husband of a Brentwood woman who died after getting fungal meningitis from tainted steroid injections seeks $12.5 million in compensatory damages, well above the maximum $750,000 that plaintiffs can receive under a 2011 Tennessee law. A hearing on the state’s request was heard this morning in Davidson County Circuit Court.

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Suggestion of Death Triggers Case's Dismissal

PEGGY DOBBINS, As Conservator of the Estate of Frank Bailey, Jr. v. GERALD S. GREEN, ET AL.
Court: TN Court of Appeals

Attorneys:

Gerald S. Green, Memphis, Tennessee, Pro Se.

Julian T. Bolton and JoeDae L. Jenkins, Memphis, Tennessee, for the appellee, Peggy Dobbins.

Jay A. Ebelhar and Nolan Johnson, Memphis, Tennessee, for the appellee, CitiFinancial Services, Inc.

Douglas A. Black, Memphis, Tennessee, for the appellees, Regions Bank and Regions Financial Corporations.

James R. Newson, III, Memphis, Tennessee, for the appellees, Springleaf Financial Services, Inc. f/k/a American General Financial Services, Inc.

Michael G. McLaren and Courtney C. McLaren, Memphis, Tennessee, for the appellee, Fidelity & Deposit Company of Maryland.

Judge: STAFFORD

This is a Tennessee Rule of Civil Procedure 25.01 case. Following plaintiff’s death and the filing of a suggestion of death in the trial court, no motion to substitute party was made within the ninety day time period set out in Rule 25.01. The trial court determined that the failure to file a motion for substitution of party was not the result of excusable neglect and granted the Rule 25.01 motion to dismiss the lawsuit. The court subsequently also granted the plaintiff’s motion for voluntary dismissal under Tennessee Rule of Civil Procedure 41.01. We conclude that, in the absence of excusable neglect, failure to comply with Rule 25.01 requires mandatory dismissal of the case with prejudice and the lawsuit may not thereafter be revived by the filing of a motion for voluntary dismissal. Reversed and remanded.

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Western Section Intercedes in Legal Fee Dispute Involving Two Plaintiff's Firms

HILL BOREN, P.C. v. PATY, RYMER and ULIN, P.C. and JAMES ERIC HAMM
Court: TN Court of Appeals

Attorneys:

R. Sadler Bailey, Memphis, Tennessee, for the appellant, Hill Boren, P.C.

Selma Cash Paty, Chattanooga, Tennessee, for the appellee, Paty, Rymer & Ulin, P.C.

John W. Chandler, Jr., Chattanooga, TN, for the appellee, James Eric Hamm.

Judge: HIGHERS

This appeal involves a dispute over an attorney’s fee involving two law firms and their client. The parties originally entered into a contract whereby both law firms would jointly represent the client as a plaintiff in a personal injury suit. Two years later, the client discharged one of the law firms. The other firm continued to represent the client, and when the case settled over a year later, the remaining firm retained the entire contingency fee. The discharged firm sued the client and the other firm, alleging that it was entitled to a share of the contingency fee and asserting numerous causes of action. The defendants claimed that the discharged firm was limited to quantum meruit. The trial court granted summary judgment to the defendants on all claims. The plaintiff law firm appeals. We affirm.

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Workers Comp Bill Moves to Full Committee

Gov. Bill Haslam's plan to overhaul the state workers' comp system is moving forward after a House subcommittee approved the measure. With that action, the bill heads to the full House Consumer and Human Resources Committee, where it is scheduled to be considered on March 12, according to the Nashville Business Journal. The subcommittee meeting took an interesting turn when the chair of the full committee was heard on a live microphone saying he planned to ram the bill through. The Nashville Scene has those remarks.

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Error in Allowing Time Barred Acts of Negligence Before a Jury Result in Reversal of Verdict by Western Section

ISLAND PROPERTIES ASSOCIATES v. THE REAVES FIRM, INC., d/b/a REAVES, SWEENEY, AND MARCUM, ET AL.
Court: TN Court of Appeals

Attorneys:

William M. Jeter and Meredith A. Lucas, Memphis, Tennessee, for the appellant, The Reaves Firm.

Richard Glassman, and Lewis W. Lyons, Memphis, Tennessee, for the appellee, Island Properties Associates.

Judge: STAFFORD

This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error. We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals. Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.

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MUST READ: A Divided Middle Section Considers Extracontractual Liability Following Contested Coverage Denial

WENDY LEVERETTE, ET AL. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Michael Ross Campbell, Lauren Michelle Rutherford, Chattanooga, Tennessee; Patrick Arnold Flynn, Seth Michael Lasater, Columbia, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Richard Thomas Matthews, Columbia, Tennessee, for the appellee, Wendy Leverette, et al.

Judge: COTTRELL

A woman who was severely injured in a collision with an automobile driven by an unlicensed minor filed suit against the minor. The minor’s parents’ insurance company denied coverage and refused to defend the suit on the basis of an exclusion in the insurance policy for damages caused by a party driving without permission of the owner or a person “in lawful possession” of the vehicle. No defense was offered, and the injured party obtained a $1 million default judgment against the minor driver. The injured party and the minor’s parents then jointly filed suit against the insurance company, alleging that the insurance company was liable for breach of contract, bad faith, violation of the Tennessee Consumer Protection Act, and violation of the Unfair Claims Practices Act based upon its denial of coverage. The trial court ruled that, as a matter of law, the minor was entitled to insurance coverage under her parents’ policy at the time of the accident. The remainder of the case was tried, and the plaintiffs were awarded compensatory and punitive damages on the bad faith claim. The jury also found the insurance company had violated the Tennessee Consumer Protection Act, and the trial court trebled the compensatory damages and awarded attorney fees under the Act. The insurance company has raised a number of issues in this appeal, inter alia, the grant of partial summary judgment to the plaintiffs on the question of coverage; the finding of liability for bad faith, the liability and enhanced penalty under the TCPA, and the requirement that plaintiffs should make an election between the punitive damages and the enhanced damages. We affirm the breach of contract holding, including the conclusion that the policy terms provided coverage. We reverse and vacate the holding of liability for bad faith, including the award of punitive damages thereunder, since the statutory cause of action was not plead. We also reverse the award of treble damages under the TCPA, but affirm the finding of a violation of the Act. We affirm as modified the award of attorneys’ fees.

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Saint Thomas Blames FDA for Meningitis Outbreak

Lawyers for Saint Thomas Outpatient Neurosurgery Center are blaming officials with the U.S. Food and Drug Administration (FDA) and state officials for last year's fatal outbreak of fungal meningitis, The Tennessean reports. The center says the FDA failed to make findings available that showed the New England Compounding Center -- which supplied the tainted injections -- was out of compliance with regulations. It also argues that the Tennessee Health Department was responsible for any delays in notifying patients of the outbreak.

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Dismissal After Trial of Passenger Claims Against City Bus is Affirmed by Eastern Section

MARY SUE COOK V. EAST TENNESSEE HUMAN RESOURCE AGENCY, INC., ET. AL.
Court: TN Court of Appeals

Attorneys:

Ronald J. Attanasio, Knoxville, Tennessee, for the appellant, Mary Sue Cook.

Nathan D. Rowell and Brian R. Bibb, Knoxville, Tennessee, for the appellee, East Tennessee Human Resource Agency, Inc.

Judge: MCCLARTY

This is a negligence case in which Passenger sued ETHRA and Driver for injuries she sustained when exiting an ETHRA public transit vehicle. The trial court dismissed the claim against Driver but denied ETHRA’s motion for summary judgment. Following a bench trial, the court dismissed the claim against ETHRA, holding that Passenger failed to prove that Driver was negligent. Passenger appeals. We affirm the decision of the trial court.

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UM Carrier's Liability is Derived from that of Tortfeasor--Procedural Defenses of the Latter Can Protect the Former, Per Western Section

RICHARD LIPUT v. BOBBY GRINDER
Court: TN Court of Appeals

Attorneys:

Richard Liput, Savannah, Tennessee, Pro Se.

Colin M. McCaffrey, Goodlettsville, Tennessee, for the appellee, State Auto Mutual Insurance Company.

Judge: STAFFORD

Appellant appeals the trial court’s grant of summary judgment to the Appellee uninsured motorist carrier for failure to properly and timely serve the alleged tortfeasor. After a careful review of the record, we affirm.

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Judge Rules Companies Can’t Sue Feds over 2010 Flood

U.S. District Judge Todd Campbell dismissed three lawsuits that accused federal agencies of negligence during the 2010 Nashville flood, ruling that the government has legal immunity under a 1928 federal flood control law. The Tennessean reports that Gaylord Entertainment Co. (now Ryman Hospitality Properties), Gibson Guitar, Nissan North America and several other companies sued the U.S. Army Corps of Engineers and the National Weather Service last year for acting negligently and inadequately communicating with each other before and during the storm. The government sought to have the suits dismissed, asserting that federal agencies are legally protected when they make discretionary decisions based on public policy considerations.

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Supreme Court Restores Verdict Against Nursing Home Based on Understaffing

RHEAETTA F. WILSON ET AL. v. AMERICARE SYSTEMS, INC. ET AL.
Court: TN Supreme Court

Attorneys:

Clarence James Gideon, Jr., and Alan S. Bean, Nashville, Tennessee, and Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellants, Rheaetta F. Wilson and Lauralyn F. Watson.

Roger W. Dickson, Chattanooga, Tennessee, and David L. Johnson, Nashville, Tennessee, (on appeal); Thomas Pinckney and Susan D. Bass, Nashville, Tennessee, (at trial) for the appellee, Americare Systems, Inc.

Judge: LEE

The issue presented is whether the jury verdict against the management company of an assisted living facility for negligence based on understaffing is supported by material evidence. Mable Farrar’s physician prescribed Ms. Farrar a daily dose of an over-the-counter medicine for constipation. The nursing staff at the assisted living facility where Ms. Farrar lived did not give the medicine to her as often as prescribed. As a result, Ms. Farrar became constipated and returned to see her doctor. Ms. Farrar’s doctor notified the nursing staff at the assisted living facility to give Ms. Farrar three to four enemas each day beginning on May 27, 2004. A facility nurse gave Ms. Farrar one enema on the evening of May 27, none on May 28, and one enema on the evening of May 29. Very soon after receiving the last enema on May 29, Ms. Farrar died from a perforated colon. Her daughters filed a wrongful death action against the nurse who gave the enema, the director of nursing at the assisted living facility, the owner of the facility, and its management company. The suit alleged that the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death. The jury returned a verdict finding the nurse thirty percent at fault, the director of nursing twenty percent at fault, and the management company fifty percent at fault based on its failure to provide sufficient personnel at the facility. The management company appealed. The Court of Appeals reversed the jury verdict against the management company, finding that there was no material evidence that staffing deficiencies proximately caused Ms. Farrar’s death. We hold that the jury’s verdict was supported by material evidence. Accordingly, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for review of the award of punitive damages.

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