News

No MSJ Where Fault is Compared, Rules Eastern Section

TERESA HOLT, ET AL. v. THE DOLLYWOOD COMPANY
Court: TN Court of Appeals

Attorneys:

John D. Agee and Bradley D. Williams, Clinton, Tennessee, for the appellants, Teresa Holt and Archie J. Holt.

Daniel M. Gass, Knoxville, Tennessee, for the appellee, The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp.

Judge: SWINEY

Teresa Holt and Archie J. Holt (“Plaintiffs”) sued The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp. (“Defendant”) with regard to injuries Ms. Holt received as a result of her fall on a Dollywood tram. Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment finding and holding, inter alia, that Ms. Holt’s own negligence was the primary cause of her fall and that Ms. Holt was at least 50% at fault. Plaintiffs appeal to this Court. We find and hold that a reasonable jury could find that Ms. Holt was less than 50% at fault. We, therefore, reverse the Trial Court’s judgment and remand for further proceedings.

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Supreme Court Rules that Nonsuit is Not a Basis for Malicious Prosecution Suit

ELLIOT H. HIMMELFARB, M.D., ET AL. v. TRACY R. ALLAIN
Court: TN Supreme Court

Attorneys:

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy R. Allain

M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot H. Himmelfarb, M.D., Elliot H. Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

Judge: HOLDER

A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suit filed a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court’s denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion.
 

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Whaddaya Mean it's Not My Car — My Name is on the Title …

A good treatment of the cancellation rule and equitable ownership of personal property:
 
 
JAMES LYNCH, SR. v. CLEON PORTIS
Court: TN Court of Appeals

Attorneys:

Ricky E. Wilkins and Sharon Harless Loy, Memphis, Tennessee, for the appellant, James Lynch, Sr.

C. Michael Becker, Germantown, Tennessee, for the appellee, Cleon Portis.

Judge: FARMER

The trial court awarded summary judgment to Defendant on Plaintiff’s claim for property damages arising from a motor vehicle collision, finding that Plaintiff did not own the vehicle allegedly damaged. On appeal, Plaintiff asserts the trial court erred by awarding summary judgment to Defendant where ownership of the vehicle is a genuine issue of material fact. We reverse the award of summary judgment and remand for further proceedings.

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Legal Clinic Partnership Set in Chattanooga

Legal Aid of East Tennessee has partnered with BlueCross BlueShield of Tennessee and the law firm Miller & Martin to offer a free legal advice clinic on Sept.13, at 2 p.m., at the downtown office of BlueCross Blueshield, 1 Cameron Hill Circle, Chattanooga 37402. Individuals interested in meeting with a lawyer for free legal advice at this clinic should call Legal Aid of East Tennessee at 423 756-4013.

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Court Hands Down 2 ‘Bodily Injury’ Rulings

The Tennessee Supreme Court today clarified that motor vehicle insurance policies need not cover mental injuries when the insured has suffered no physical injuries. Parents of an 18-year old who was struck by a car sued for wrongful death and negligent infliction of emotional distress. They sought to recover money damages for their alleged mental injuries under the uninsured motorist provision of their insurance policy. The high court unanimously rejected that claim. Read more or download the court’s opinion. In a second opinion, the court ruled that when considering whether a victim has suffered a serious bodily injury, a jury should consider the injury that occurred rather than the injury that could have occurred or the manner in which it occurred. Read more or download the opinion and a separate concurring opinion in the case.

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Survivor of Colorado Shooting to Sue Theater, Studio, Doctors

A lawyer told reporters Tuesday he will bring suit against multiple parties on behalf of a survivor of Friday's mass shooting at an Aurora, Colo., premiere of The Dark Knight Rises. Beverly Hills-based attorney Donald Karpel told TMZ he will file on behalf of Torrence Brown Jr., who attended the midnight showing where the massacre took place. He plans to sue the Century Aurora 16 movie theater, Warner Bros. Entertainment and the doctors for alleged Colorado gunman James Eagan Holmes. WMC has the story

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Greer Elected West Tenn. TAJ VP

Memphis lawyer Thomas Greer, a partner in Bailey & Greer PLLC, has been elected vice president of the West Tennessee division of the Tennessee Association for Justice (TAJ). Greer practices in the areas of medical malpractice, personal injury, wrongful death, premises liability and police brutality. In an interview with the Memphis Daily News, Greer reflects on shifting trends in the legal profession and how TAJ is responding. “There’s a declining trend for the number of cases that go to trial," he says. "One of the missions of our association is to keep the courthouse open and level the playing field for the ordinary Tennessean. To try to make sure that future generations have the same constitutional rights that we grew up with and that we’ve had.”

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Court Clarifies When Plaintiffs May Add Back to a Suit

The Tennessee Supreme Court today, in Davey Mann et al v. Alpha Tau Omega Fraternity et al, clarified when plaintiffs may add back to a lawsuit involving comparative fault defendants previously named, but dismissed by a non-final order after the statute of limitations has run. In a unanimous opinion, the court held that a defendant dismissed by a non-final order is “not a party to the suit” for purposes of section 20-1-119 and may be added back to the lawsuit pursuant to section 20-1-119 if a timely-sued defendant files an answer alleging fault against the dismissed defendant. The Supreme Court remanded to the trial court for further proceedings. Learn more from the Administrative Office of the Courts

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General Sessions Candidates Give Views in Public Forum

Six of the seven candidates for Hamilton County General Sessions Court judge answered questions at a Wednesday public forum co-sponsored by the Times Free Press and Chattanooga Bar Association. The seat was left vacant after Judge Bob Moon's death. Joe DeGaetano, Valerie Epstein, Yolanda Mitchell, Ron Powers, Gary Starnes and Patricia Best Vital took part in the forum. Interim Sessions Judge David Norton, who is also a candidate, did not attend due to illness. With minor variations each of the candidates said they approved of recording proceedings and would closely scrutinize requests for a court-appointed attorney. All also said they would be accessible after hours to attorneys within the court rules for discussing cases. Read the details and see a picture

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'Loser Pays' Passes Senate

State senators yesterday approved legislation creating a "loser pays" system that allows judges to assess fees of up to $10,000 on plaintiffs who bring suits determined to have "no basis in fact or law." The vote was 17 to 12, with two Republican members who are also lawyers joining Democrats in opposition. The measure now heads back to the state House to approve minor Senate changes. The House originally passed the bill on Tuesday. WPLN.org has more

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House Passes 'Loser Pays' Bill

After more than two hours of debate, the Tennessee House voted 58-38 yesterday for a "loser pays" system that allows judges to assess fees of up to $10,000 on plaintiffs who bring suits determined to have "no basis in fact or law." Opponents contend the bill, HB 3124, will intimidate average citizens from going to court against big corporations. Several amendments were offered and defeated, including one that would have required defendants to pay plaintiff’s costs if their motions to dismiss are denied. The measure now goes to the Senate, where it was expected to be considered today. The News Sentinel has more

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Litigation Attorney Sought in Nashville

A statewide insurance and corporate defense firm is hiring an associate attorney for its Nashville office to handle personal injury and professional negligence claims. The ideal candidate would have two to three years experience managing and litigating cases in state and federal court. Responsibilities include conducting initial claims investigations, responding to lawsuits, handling motions, conducting discovery and going to trial. Learn more on Joblink

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House GOP Pushing Med Mal as Budget Fix

Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal health care costs. The Blog of Legal Times reports

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Evans Petree Lawyers Found in Contempt

Davidson County Chancellor Ellen Hobbs Lyle held three Memphis attorneys in contempt of court and ordered them to repay nearly $670,000 to consumers who thought they were buying legitimate insurance products. The Tennessean reports that Lyle found that William L. Hendricks, Russell T. "Rusty" Hensley and Theodore T. Kitai – all with the Memphis firm Evans Petree PC – were founders and officers of a firm set up to continue to sell insurance and collect premiums after the state shut down two Springfield companies operated by a client of the attorneys. The companies were closed in March 2010 when investigators found they were operating without an insurance license and were not offering legitimate insurance policies.

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'Hot Coffee' Gets Knoxville Screening

The University of Tennessee College of Law's Center for Advocacy & Dispute Resolution and the Tennessee Association for Justice will present the Knoxville premier of "Hot Coffee" – a documentary about the well-known lawsuit brought against McDonald's in the 1990s – on Monday, April 9. The screening will take place in Room 132 of the law school at 4:30 p.m. A discussion with the film's producer Susan Saldoff will follow the screening, and a reception will be held from 6:30 to 8:30 p.m. at the Copper Cellar. For more information contact the college at (865) 974-2521.

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Malpractice Bill Criticized by TAJ

Legislation permitting health care providers to gain access to the medical records of anyone filing a medical malpractice claim was considered by the House Judiciary Committee this week. The bill, HB 2979, would supersede federal HIPAA laws and allow an attorney, representing a health care provider, to access a plaintiff's medical history, including mental health and past drug or alcohol abuse treatments, according to the Murfreesboro Post. The Tennessee Association for Justice called the bill an outrageous invasion of privacy and a tool for defense attorneys to intimidate victims of medical negligence and abuse. The Post has more

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