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Eastern Section Rules that the UM Arbitration Provision in TN Law Does Not Apply to an Insurance Contract Incepting in Texas

DONALD K. NELSON v. GERALD E. NELSON ET AL.
Court: TN Court of Appeals

Attorneys:

Byron K. Lindberg, Nashville, Tennessee, for the appellant, Republic Underwriters Insurance Agency.

Tonya Kennedy Cammon, Chattanooga, Tennessee, for the appellant, Government Employees Insurance Company.

Andrew L. Berke and Jeremy M. Cothern, Chattanooga, Tennessee, for the appellee, Donald K. Nelson.

Judge: SUSANO

This interlocutory appeal involves the question of whether the arbitration provisions contained in Tenn. Code Ann. §56-7-1206(f)-(k)(2008), a part of the Tennessee uninsured motorist (“UM”) statutory scheme, apply to policies with UM coverage that were issued and delivered in Texas. The trial court held that the arbitration provisions do apply. The UM carriers, brought into this action pursuant to the provisions of Tenn. Code Ann. §56-7- 1206(a), appealed that decision. We reverse the trial court’s judgment.

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Court Reinstates Damages in Assisted Living Death

The Tennessee Supreme Court reinstated a jury verdict against the management company of a Shelbyville assisted living center in the death of an 83-year-old resident. Records indicate the woman died from a ruptured colon after a nurse improperly administered an enema. The Supreme Court reinstated $300,000 in compensatory damages after finding that the center was understaffed and that the management company knew about it but did not fix it. A $5 million punitive damages award approved by the jury was sent back to the lower court for review.

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Court Limits Challenges to Workers’ Comp Settlements

The Tennessee Supreme Court ruled today that when the state Department of Labor approves a workers’ compensation settlement and accepts the statistical data form submitted with the settlement, a court may not find that the form is incomplete and set aside the settlement on those grounds. The high court also clarified procedures for appealing or attempting to set aside a department-approved settlement. The ruling came in the case of Christopher Furlough v. Spherion Atlantic Workforce LLC.

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Workers’ Comp Gets First Review Thursday

The Haslam Administration's proposal for workers’ compensation overhaul may see its first legislative test next week when it comes before the Workers' Compensation Advisory Council on Thursday at 1 p.m. The council is set up to review and comment on bills but it cannot stop legislation. A TBA Workers’ Comp Working Group has been closely following the developments and is presently reviewing the latest draft of the legislation. The long-standing policy of the TBA is to oppose moving workers’ comp claims from the courts to a purely administrative process. The TBA hopes to continue playing a constructive role in whatever legislation emerges. The administration’s amendment would replace SB 200/HB 194. TBA members have voiced their views to many lawmakers. Among those commenting was LaFollette lawyer David H. Dunaway, who wrote this letter to the editor of the Tennessee Bar Journal.

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St. Thomas Clinic Wants Meningitis Lawsuits Consolidated

Attorneys for St. Thomas Outpatient Neurosurgical Center, where dozens of patients were injected with a meningitis-tainted steroid, filed a motion in Davidson County Circuit Court asking that the presiding judge assign the current and future lawsuits to a single circuit or chancery court judge, the Tennessean reports. The motion was filed on behalf of the Howell Allen Clinic, a codefendant in the two recent suits. The move for consolidation follows recent action merging cases in federal court stemming from the same fungal meningitis outbreak, which caused 14 deaths among Tennessee patients and sickened more than 700 people nationwide.

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When the Relationship Goes Bad--the Western Section Weighs in on a Dispute Between Lawyer and Client in Tort Case

HOLLY CASTLE, INDIVIDUALLY, AND AS NEXT FRIEND OF EMILY CASTLE, A MINOR CHILD; AND JANA CLARK v. DAVID DORRIS LOGGING, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

R. Sadler Bailey, Memphis, Tennessee, for the appellants, Holly Castle and Jana Clark.

Martin Zummach, Southhaven, Mississippi, for the appellee, Horne & Wells, PLLC.

Judge: STAFFORD

This case involves a post-trial dispute between one party to a personal injury case and their former counsel. After a jury verdict was entered in favor of Appellants, their former law firm filed an attorney lien and a motion to recover its attorney fees in the trial court. Appellants asserted that the trial court lacked jurisdiction to consider the former firm’s motion. The trial court disagreed and awarded the former firm its full requested fee. Appellants appeal both the award of attorney fees to its former law firm, and also the trial court’s denial of Appellants’ request to release funds held by the clerk. We conclude that the trial court lacked jurisdiction to consider the post-trial dispute and reverse the award of attorneys fees in this case. However, we affirm the trial court’s denial of the motion to release funds. Reversed in part, affirmed in part, and remanded.

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General Sessions Appeal Continue to Confuse

MARVIN BERNATSKY AND PATRICIA BERNATSKY v. DESIGNER BATHS & KITCHENS, LLC

With concurring opinions.

Court: TN Court of Appeals

Attorneys:

Steven R. Walker, Oakland, Tennessee, for the Plaintiffs/Appellants Marvin Bernatsky and Patricia Bernatsky

Robert A. Wampler, Memphis, Tennessee, for the Defendant/Appellee Designer Baths & Kitchens, LLC (no brief filed)

Judge: KIRBY

In this case, we address the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiffs sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiffs sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiffs filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). The plaintiffs did not file any further bond at that time, but later filed a $500 cost bond. The Circuit Court dismissed the appeal sua sponte, holding that it lacked subject-matter jurisdiction because the plaintiffs had failed to comply with the appeal-bond requirement in T.C.A. § 27-5-103. The plaintiffs now appeal. After careful review of the statutes and caselaw, we overrule this Court’s prior decision in Jacob v. Partee, No. W2012- 00205-COA-R3-CV, 2012 WL 3249605 (Tenn. Ct. App. Aug 10, 2012), and conclude that payment of a cash bond in the amount of the statutory court costs set out in Section 8-21- 401(b)(1)(C)(i) satisfied the plaintiffs’ obligation to “give bond with good security . . . for the costs of the appeal” under Section 27-5-103(a), and so the Circuit Court had subjectmatter jurisdiction over the appeal. Accordingly, we reverse the Circuit Court’s dismissal of the action and remand for further proceedings.

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Stafford Concurring

Farmer Concurring

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MUST READ Case: Western Section Denies Hospital Lien to Hospital Taking Health Insurance Payments

DIANE WEST, ET AL. v. SHELBY COUNTY HEALTHCARE CORP., d/b/a REGIONAL MEDICAL CENTER AT MEMPHIS.

Court: TN Court of Appeals

Attorneys:

Eugene A. Laurenzi and Lesley Cook, Memphis, Tennessee, and A. Wilson Wages, Millington, Tennessee, for the appellants, Diane West, Jammie Heags-Johnson, and Charles Garland, Individually and on behalf of all other persons similarly situated.

John I. Houseal, Jr. and Don L. Hearn, Jr., Memphis, Tennessee, for the appellees, Shelby County Healthcare Corp., d/b/a Regional Medical Center at Memphis.

Judge: STAFFORD

This is an appeal from the trial court’s denial of Appellants’ motion to quash Appellee’s hospital liens, which were filed pursuant to Tennessee Code Annotated Section 29-22-101 et seq. In each Appellant’s case, the hospital filed a lien and then recovered adjusted amounts for services rendered pursuant to the hospital’s agreements with the Appellant’s respective insurance providers. Despite having received payment, the hospital argues that it may return these adjusted payments to the insurance provider and may, instead, seek to recover its full, unadjusted bill from the Appellants’ third-party tortfeasors by foreclosing its liens. We conclude that: (1) a lien, under the HLA, presupposes the existence of a debt; (2) Appellants are third-party beneficiaries of their respective insurer’s service contract with the Appellee hospital; (3) having chosen to accept a price certain for services as “payment in full” and having, in fact, accepted payment from Appellants’ insurance providers, the underlying debt is extinguished; (4) in the absence of an underlying debt, the hospital may not maintain its lien; (5) the right to subrogate belongs to the insurance provider and a hospital lien does not create a subrogation right in the hospital. Reversed and remanded.

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Meningitis Litigation Centralized in Massachusetts

All suits filed against the New England Compounding Center (NECC) over the recent meningitis outbreak will be heard in federal court in Massachusetts, where the pharmacy is located, News Channel 5 reports. A judicial panel centralized the suits in Massachusetts because that is where NECC’s bankrupty case is pending, and the primary witness and evidence will likely be located there. Judge F. Dennis Saylor has been assigned to hear the more than 120 suites filed in the case.

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Statutory Employer Defense is Affirmed by Western Section

FAYETTE JANITORIAL SERVICES and TECHNOLOGY INSURANCE COMPANY, AS ASSIGNEE OF THE CLAIMS OF WESLEY KENNEDY v. KELLOGG USA, INC.
Court: TN Court of Appeals

Attorneys:

Benjamin F. Gallagher, St. Paul, MN; Brian L. Yoakum, Memphis, Tennessee, for the appellants, Fayette Janitorial Services and Technology Insurance Company, as Assignee of the Claims of Wesley Kennedy

R. Scott McCullough, Richard Sorin, Memphis, Tennessee, for the appellee, Kellogg USA, Inc.

Judge: HIGHERS

This appeal involves a tort suit filed after a workplace injury. The defendant filed a motion for summary judgment, contending that it was a statutory employer within the meaning of the Workers’ Compensation Law, Tenn. Code Ann. § 50-6-113, and therefore, it was immune from the tort claim asserted on behalf of the injured worker. The trial court granted the defendant’s motion for summary judgment. Plaintiffs appeal. We affirm.

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Senate Judiciary Has Eventful Early Day

The Tennessee Senate Judiciary Committee today recommended for action three significant measures. The constitutional amendment to create a new method of selecting Supreme Court and appellate judges through gubernatorial nomination, legislative confirmation and retention elections (SJR 2) cleared by a vote of 8 to 1. Legislation to codify comparative fault and limit joint and several liability (SB 56) was adopted by a 5 to 4 vote. Finally, the bill sponsored by Lt. Governor Ron Ramsey to require employers to permit employees to have guns locked in their vehicles (SB 142) moved out by a vote of 8 to 0 with one abstention, despite business opposition.

The Associated Press reported this afternoon that Lt. Governor Ramsey and Republican members of the committee met with Gov. Bill Haslam for nearly an hour on the gun issue before taking up the bill.

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GL Policy Loses Effort to Have Auto Company Declared Primary Coverage After Cross Motions for Summary Judgment

ERIE INSURANCE EXCHANGE v. COLUMBIA NATIONAL INSURANCE COMPANY ET AL.

Court: TN Court of Appeals

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

Joseph M. Huffaker, Nashville, Tennessee, for the appellee, Columbia National Insurance Company.

Judge: CLEMENT

This is a declaratory judgment action wherein one insurance company, which provided general liability insurance coverage to the insured, asserts that another insurance company, which provided the same insured with automobile insurance coverage, had the primary duty to pay the cost of defending and to indemnify the insured in a third-party tort action filed pursuant to Tennessee Code Annotated § 50-6-112. The plaintiff insurer asserts that the defendant insurer had the primary duty to provide and pay the cost of the defense in that action and to indemnify the insured pursuant to its automobile insurance policy because an additional insured was operating a “boom truck” owned by the insured that was listed under the defendant’s auto policy when the injury to the third-party plaintiff occurred. Both insurers filed motions for summary judgment. The trial court denied the plaintiff’s motion and granted summary judgment to the defendant insurer holding that the plaintiff, not the defendant, is liable for providing and paying the cost of the defense and for indemnifying the insured in the third-party tort action. We affirm.

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Widower of Meningitis Victim Sues St. Thomas

Widower Wayne Reed filed a lawsuit against the Saint Thomas Outpatient Neurosurgery Center and its owners after his wife died in last year’s meningitis outbreak from tainted injections she received at the clinic. The Nashville Ledger reports that the lawsuit also challenges caps on medical malpractice awards in a new state law, and seeks $12.5 million in compulsory damages. Reed is disabled and the suit claims his wife was his primary caregiver.

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GTLA Judgment Against City of Memphis Affirmed When Mower Threw Debris into Plaintiff's Eye

SANDRA BELLANTI, ET AL. v. CITY OF MEMPHIS, TENNESSEE, A MUNICIPAL CORPORATION, ET AL.

Court: TN Court of Appeals

Attorneys:

Michael Fletcher, Memphis, Tennessee, for the appellant, City of Memphis, Tennessee.

Thomas E. Hansom and Leigh Hansom Thomas, Memphis, Tennessee, for the appellees, Sandra Bellanti and Albert Bellanti.

Judge: FARMER

Plaintiff motorist was seriously injured when a padlock was hurled from beneath a lawn mower operated by a City of Memphis Parks Services employee and through the window of her vehicle, striking her in the head and resulting in the loss of her left eye. The motorist and her husband filed an action for damages against the City, which was adjudicated pursuant to the Governmental Tort Liability Act. The trial court entered judgment in favor of Plaintiffs, and the City appeals. We affirm.

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Eastern Section Allows GTLA Judgment Against EMS Crew to Stand

FRED V. WILSON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA R. WILSON, DECEASED v. MONROE COUNTY, TENNESSEE ET AL.

Court: TN Court of Appeals

Attorneys:

Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Monroe County, Tennessee.

Jimmy W. Bilbo and Brent J. McIntosh, Cleveland, Tennessee, for the appellee, Fred V. Wilson, individually and as personal representative of the Estate of Anna R. Wilson, deceased.

Judge: SUSANO

Fred V. Wilson and his wife, Anna R. Wilson, were the initial plaintiffs. They filed suit against Monroe County and the City of Sweetwater alleging that the amputation of Mrs. Wilson’s left leg was proximately caused by the negligence of those responding to an emergency call to her home. Mrs. Wilson died before trial and the case proceeded with her husband as the sole plaintiff, individually and in a representative capacity. At a bench trial, the court found that the injury to Mrs. Wilson’s left foot occurred during the ambulance ride from the Wilsons’ home to the hospital emergency room. It further found that the injury, which did not heal, necessitated the amputation of her leg. The court entered judgment against Monroe County. The claims against Sweetwater were dismissed. Monroe County appeals. The plaintiff, by way of a separate issue, challenges the sufficiency of the court’s award of damages. We affirm.

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Allowing a Patient to Fall from a Table is Medical Malpractice Rather Than Ordinary Negligence

SUZANNE RENEE WILLIAMS-ALI AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUBY LEE COFER WILLIAMS v. MOUNTAIN STATES HEALTH ALLIANCE

Court: TN Court of Appeals

Attorneys:

Robert Payne Cave, Jr., Kingsport, Tennessee, for the appellant, Suzanne Renee Williams- Ali.

Frank H. Anderson, Jr., Johnson City, Tennessee, for the appellee, Mountain States Health Alliance.

Judge: MCCLARTY

This is a case alleging negligence by defendant, Mountain States Health Alliance, which resulted in injury to a patient, Ruby Williams. Ms. Williams fell off a table while she was undergoing myocardial perfusion imaging, also known as a nuclear stress test. Mountain States Health Alliance asserted that Ms. Williams’s complaint sounded in medical malpractice instead of ordinary negligence, and asked for summary judgment because Ms. Williams had not complied with the filing requirements of the medical malpractice statute. The trial court granted summary judgment, finding that the case involved a medical malpractice claim rather than an ordinary negligence claim. Ms. Williams’s Estate appeals. We affirm the trial court’s ruling.

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Waiver Defeats Claims Against "Motorcycle Safety" School

RUTH M. MAXWELL v. MOTORCYCLE SAFETY FOUNDATION, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

R. Steven Waldron, Murfreesboro, Tennessee, for the appellant, Ruth M. Maxwell.

Joel P. Surber, Frank M. Gallina, Nashville, Tennessee, for the appellees, Mid Tenn Motorcycle Education Center, and Michael Upchurch.

Judge: CLEMENT

Plaintiff filed this action against the instructor of a motorcycle safety course and his employer for injuries she sustained when she drove off of the designated course site and collided with a parked pickup truck. The trial court found that the plaintiff’s negligence claims were barred because she signed a valid written waiver/release from liability document prior to starting the course. The trial court also dismissed the plaintiff’s gross negligence claims, finding there was nothing in the record which would allow a reasonable juror to conclude the defendant exercised a conscious neglect of duty or a callous indifference to consequences. We affirm.

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Haslam to Unveil Sweeping Workers’ Comp Changes

A new, independent state agency would oversee all aspects of Tennessee’s workers’ compensation system, including appeals now heard by the courts, under proposed legislation being drafted by Gov. Bill Haslam’s administration. A Haslam spokesman declined to discuss specifics and said details would be released after a final bill is filed, possibly this week. But a 67-page working draft obtained by The Tennessean indicates Haslam is considering major changes to the 94-year-old system. The proposals appear similar to those recommended by a Virginia consultant who was hired to review the state’s system last year.

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Judge Freezes NECC Assets, Appoints Trustee

U.S. Judge Henry Boroff has given the go-ahead to creditors of the New England Compounding Center to seek a freeze on the assets of company owners up to $21 million. Boroff also approved a request to have an independent trustee oversee the liquidation of the firm. NECC, based in Framingham, Mass., has been blamed by state and federal regulators for a fungal meningitis outbreak that has killed 44 people, 14 of them treated in Tennessee. The Tennessean has the story.

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Split Western Section Affirms Dismissal of "Dirty Campaign" Defamation Case v. Congressional Candidate

AEGIS SCIENCES CORPORATION v. LOU ANN ZELENIK, ET AL.
With dissenting opinion.
Court: TN Court of Appeals

Attorneys:

Joel T. Galanter and Tricia T. Olson, Nashville, Tennessee, for the appellant, Aegis Sciences Corporation.

Richard E. Spicer and Brent S. Usery, Nashville, Tennessee, and Robert E. Lee Davies, Franklin, Tennessee, for the appellees, Lou Ann Zelenik, Lou Ann for Congress and Jay Heine.

Judge: FARMER

The trial court awarded summary judgment to Defendants in this action for defamation, civil conspiracy, and violation of the Tennessee Consumer Protection Act. Plaintiff appeals the award of summary judgment on its claims for defamation and civil conspiracy. We affirm.

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Stafford Dissenting Opinion

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No Work Comp Subrogation for Future Meds, Rules a 4-1 Supreme Court Majority

JOSHUA COOPER ET AL. v. LOGISTICS INSIGHT CORP. ET AL.
With dissenting opinion
Court: TN Supreme Court

Attorneys:

Scott Carey and Mark Baugh, Nashville, Tennessee, for the appellants, ProLogistics, Inc., Logistics Insight Corp., and Joe Murray.

Daniel C. Todd, Nashville, Tennessee, for the appellees, MasterStaff, Inc. and Discover RE.

Judge: HOLDER

An employee was injured at work as a result of the actions of a third-party tortfeasor. The employee suffered permanent injuries that required future medical care. The injured employee filed a claim for workers’ compensation benefits and filed a lawsuit against the third-party tortfeasor. The employer intervened in the lawsuit pursuant to Tennessee Code Annotated section 50-6-112 (2008) to protect its subrogation lien against any recovery from the third-party tortfeasor. The employee settled the lawsuit with the third-party tortfeasor and voluntarily dismissed the case. The employer requested that the case be set for trial, claiming that it was entitled to a lien against the settlement proceeds for the cost of future medical benefits that may be paid on behalf of the injured employee. We hold that the employer’s subrogation lien provided by Tennessee Code Annotated section 50-6-112 does not include the cost of future medical benefits that may be provided to an injured employee.

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Koch Dissenting Opinion

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Alltel Saves IIED Case from Dismissal by Western Section in Store Surveillance Case

SARAH WHITE v. TARGET CORPORATION
Court: TN Court of Appeals

Attorneys:

Gregory D. Cotton, Collierville, Tennessee, for the Plaintiff/Appellant Sarah White

Betty Ann Milligan, Memphis, Tennessee, for the Defendant/Appellee Target Corporation

Judge: KIRBY

This appeal involves claims for intentional infliction of emotional distress, invasion of privacy, and misappropriation of image. The plaintiff, a customer of the defendant store, brought clothing into the store’s dressing room to try it on. While in a state of undress in the dressing room, the customer noticed in the reflection of her dressing-room mirror a globe on the store ceiling that appeared to contain a surveillance camera. Store employees initially told the customer that the globe contained a camera, but a store manager later told the customer that the ceiling globe did not contain a camera. Eventually, the plaintiff customer filed this lawsuit against the defendant store, seeking damages for, inter alia, intentional infliction of emotional distress, invasion of privacy, and misappropriation of image. The trial court granted summary judgment in favor of the defendant store. The plaintiff now appeals. We reverse, finding that the standard for summary judgment under Hannan v. Alltel Publishing has not been met in this case.

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Out of Court's Declarant's Statement at MVA Scene Expressing Opinion on Fault Allowed as Excited Utterance by Eastern Section

EDNA H. IRWIN, v. CHRISTOPHER MARTIN ANDERSON
Court: TN Court of Appeals

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the appellant, Edna H. Irwin.

George H. Buxton, Oak Ridge, Tennessee, for the appellee, Christopher Martin Anderson.

Judge: FRANKS

Plaintiff received serious injuries in an automobile accident, when she turned left in front of the oncoming vehicle operated by defendant. The suit resulted in a jury trial wherein the jury returned a verdict for defendant, which was approved by the Trial Judge. On appeal, we affirm the Trial Judge's Judgment.

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Western Section Rules that Exacerbation May Not Necessarily Mean Causal Relation of Medical Charges

NORMAN HILL v. DANNY TAPIA, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

James B. Johnson and Lauren Paxton Roberts, Nashville, Tennessee, for the appellant, Norman Hill.
C. Benton Patton, Nashville, Tennessee, for the appellees, Danny Tapia, Jr., and Tabet Enterprises.

David S. Zinn and Raney B. Cronin, Brentwood, Tennessee, for the appellee, Estate of Norma Aguila.

Judge: STAFFORD

This is a personal injury case resulting from an automobile accident. After the accident, Plaintiff/Appellant learned that he suffered from a degenerative disc disease, which required surgery. Appellant sued the two drivers involved in the accident for damages, which included his medical expenses for the disc surgery . At trial, Appellant’s surgeon’s deposition testimony was read to the jury, in which the surgeon testified that while the accident “aggravated” Appellant’s existing condition, the treatment he received was not “causally related” to the accident. Appellant offered another expert’s testimony, however, that did relate the treatment to the accident. At the close of proof, Appellant moved for a directed verdict on the issue of causation for his medical expenses, arguing that because the surgeon’s testimony was contradictory, it was subject to the cancellation rule. The trial court denied the motion and sent the issue to the jury. The jury returned a verdict for Appellant, but in an amount that did not include the medical expenses he incurred to treat the degenerative disc disease. Appellant was also awarded discretionary costs. After a careful review of the record, we affirm. 

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Broken Families Make for Complicated Wrongful Death Claims, per the Middle Section

LATONY BAUGH, ET AL. v. UNITED PARCEL SERVICE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

James S. Higgins, Nashville, Tennessee, for the Appellants, James Denzmore.

Dana C. Holloway and David A. Chapman, Knoxville, Tennessee, for the Appellees, United Parcel Service, Inc. and Jason Sanders.

H. Anthony Duncan, Nashville, Tennessee, for the Appellee, Latony Baugh.

Judge: DINKINS

Shortly after the mother of four children was killed in an accident, her husband instituted an action to recover damages for her death; the father of the children moved to intervene in the action and for the court to hold a hearing on whether the husband had abandoned the mother, thereby waiving his right as surviving spouse to participate in the wrongful death action. The trial court did not hold a hearing; rather, it held that the husband was the proper party to pursue the action, allowed the Guardian of the children to represent the interest of the children in the action, and dismissed Father’s petition. The surviving spouse, Guardian and tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful death claim; the court granted the petition. Father appeals, contending that the court erred in failing to hold a hearing on the issue of whether the husband was estranged from the mother, in approving the settlement, and in placing the settlement documents under seal. We remand the case for a hearing on whether the husband waived his right as surviving spouse to participate in the wrongful death action and reverse the court’s placement of the settlement documents under seal; in all other respects the judgment of the trial court is affirmed.

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