Kagan ends testimony, committee turns to other witnesses

U.S. Supreme Court nominee Elena Kagan wrapped up her testimony before the Senate Judiciary Committee yesterday. While Republicans focused on abortion, gays in the military and other issues, Democrats on the panel focused on conservative decisions from the Supreme Court, inviting Kagan to criticize previous rulings. Kagan's response was to denounce "results-oriented judging"-- the practice of adjusting judicial reasoning to fit a preconceived conclusion -- but said she believes the current justices are acting in good faith. The Commercial Appeal has highlights from the day. This afternoon, the committee began hearing from other witnesses, including lawyers, law school professors, military officers and policy groups.

See the witness list on the committee's web site

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Court: TWCA


Mary Dee Allen, Cookeville, Tennessee, for the appellant, Berkline, LLC.

William D. Birdwell, Cookeville, Tennessee, for the appellee, Mark Allred.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Diane Stamey Dycus, Deputy Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund.

Judge: KURTZ

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers' compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries. The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense. Upon review, we conclude that the evidence preponderates against the trial court's findings and that the employee's misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.



Court: TCA


William D. Leader, Jr.; Eugene N. Bulso, Jr.; and Taylor C. Sutherland, Nashville, Tennessee, for the appellant, Blackburn & McCune, PLLC.

John S. Hicks and Brigid M. Carpenter, Nashville, Tennessee; and Brooke S. Murphy and Timila S. Rother, Oklahoma City, Oklahoma, for the appellees, Pre-Paid Legal Services, Inc., and Pre-Paid Legal Services of Tennessee, Inc.

Judge: KIRBY

This appeal involves legal insurance. The defendants have sold legal insurance for many years. The plaintiff law firm provided legal services to policyholders pursuant to the defendants' legal insurance policies. After Tennessee began to regulate legal insurance, the defendants were required to obtain State approval of their insurance rates and plans. The defendants submitted plans to the State. The plans included proposed rates and anticipated claims expenses, consisting primarily of the fees paid to the plaintiff law firm. The State informed the defendants that the initial filings did not reflect a sufficient loss ratio, that is, ratio of expenses to premium rates. The defendants revised the State filings to reflect an increase in the compensation paid to the plaintiff law firm. At the same time, the defendants presented the plaintiff law firm with a contract that required the plaintiff to pay the defendants for certain administrative services. The amount to be paid to the defendants essentially equaled the amount by which the defendants increased the plaintiff's compensation rate. Years later, the plaintiff discovered facts that caused it to conclude that the contract was a subterfuge to allow the defendants to recoup the increased compensation to the law firm while appearing to comply with the State's loss ratio requirement. The plaintiff informed the State of these facts and of its suspicion that the purpose of the arrangement was to circumvent the loss ratio requirement. After receiving this information, the State took no adverse action against the defendants. The plaintiff then filed this lawsuit seeking restitution, asserting that the contract with the defendants was fraudulently induced and that it was void and unenforceable as against public policy. The plaintiff also asserted a claim under the filed rate doctrine, seeking to recover the difference between the pay rate that the defendants filed with the State and the rates actually paid to the plaintiff. The trial court granted summary judgment in favor of the defendants on all of the plaintiff's claims. The plaintiff now appeals. We reverse the grant of summary judgment as to the claims of fraudulent inducement and violation of public policy, finding that genuine issues of material fact exist as to those claims. We affirm the trial court's decision on all remaining claims.



Court: TCA


Hugh P. Garner, Chattanooga, Tennessee, for the appellants, Ethel Burnett May by her Attorneys in Fact, Joann Butler and Marilyn B. Garner.

J. Harvey Cameron, Jasper, Tennessee, for the appellee, Marion County, Tennessee.


Landowners filed suit to determine ownership of that portion of Ann Wilson Road that crosses their property. Defendants sought and were granted summary judgment based on the running of several statutes of limitations. Landowners appealed. We affirm.



Court: TCA


Sheryl Guinn, Brentwood, Tennessee, for the appellant, Michael T. Gerakios, Jr.

Lance B. Mayes, Brentwood, Tennessee, for the appellee, Tonya L. Gerakios Emerton.


This is an appeal from a final decree of divorce. The trial court granted the wife a divorce, equitably divided the parties' property, and awarded the wife alimony in solido. We affirm.



Court: TCA


Kimberly L. Reed-Bracey, Goodlettsville, Tennessee, for the appellant, Harold Lee Harden.

John L. Meadows, Lebanon, Tennessee, for the appellee, Judy Kay Harden.


This is a divorce action. Husband/Appellant appeals from the trial court's division of marital assets, award of attorneys fees to the Wife, and the stay of the proceedings during the pendency of the appeal. Affirmed as modified.



Court: TCA


Richard L. Colbert, Amy W. Malone, Nashville, Tennessee, for the appellants, Wilson County Education Association and Steve Johnson.

Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson County Board of Education.


An assistant principal was transferred to a teaching position and grieved the transfer pursuant to a locally negotiated agreement between the local board of education and the organization representing teachers. After pursuing remedies through the school board, the teacher asked the trial court to compel the board to arbitrate resolution of the dispute. The trial court granted summary judgment to the school board, concluding that Tenn. Code Ann. section 49-2-303 applied since "assistant principals" are statutorily the same as "principals" and, under the holding in Marion County Board of Education v. Marion County Education Association, 86 S.W.3d 202 (Tenn. Ct. App. 2001), the director of schools has the authority to transfer principals unrestrained by locally negotiated agreements. Mr. Johnson and the association appealed, claiming that Tenn. Code Ann. section 49-2-303 does not apply to assistant principals and that the director of schools must comply with their agreement in making transfer decisions. We agree that the arbitration provision is not enforceable, but for a different reason. We hold that there was no meeting of the minds as to the procedure to be used as the final step in the grievance procedure. Consequently, there was no enforceable agreement to arbitrate.



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Legal News
Appeals court to hear judge-shopping case
The Tennessee Court of Criminal Appeals has agreed to hear a case involving allegations of judge shopping in Hamilton County General Sessions Court. The court will consider the case directly from the local court in what is called an "interlocutory appeal." The defendant is bringing the suit to challenge criminal charges of boating under the influence. He argues that the Tennessee Wildlife Resources Agency routinely picks which judges hear its cases, preventing a fair trial.
The Chattanooga Times Free Press has the story
Obama makes case for immigration overhaul
President Barack Obama blamed immigration policy gridlock on "political posturing and special interest wrangling" in a speech today at American University. After taking several Republican legislators to task for waffling in their support for reform, Obama laid out his rationale for a comprehensive approach to the issue, saying the problem cannot be solved "only with fences and border patrols." Read more in the Knoxville News-Sentinel

In related news, the the American Bar Association filed an amicus brief seeking to block enforcement of Arizona's new law designed to fight illegal immigration. In announcing the decision, the association said it was unusual for it to file a brief before a case reaches the appellate level, but that the situation called for "extraordinary action."
Download the brief
Labor board to reopen nearly 100 cases
The National Labor Relations Board says it will reopen 96 of nearly 600 cases that a recent Supreme Court ruling called into question. The court ruled that the agency operated illegally for 27 months while its five-member board dwindled to just two members because the U.S. Senate did not approve new appointees. All 96 of the cases to be re-examined are currently on appeal for various reasons. The board says it is not clear how many of the other decisions -- which were deemed final -- can or will be contested.
WKRN News2 has this AP report
Springfield attorney acquitted of insurance fraud
Springfield attorney Fletcher W. Long -- known for high-profile clients such as Perry and Arthur March and Jason Burdick -- was acquitted on charges of insurance fraud this week after a local jury returned a "not guilty" verdict within an hour of beginning deliberations. Long called the acquittal an "absolute vindication for completely frivolous prosecution." He has stated all along that he felt the charges were motivated by something less than an interest in justice, saying, "When you have district attorneys going after defense lawyers, it's a very serious matter." The government brought the case over a $6,000 insurance claim Long filed to replace damaged furniture at his lake cabin.
The Robertson County Times reports
Blount County changes jury duty procedures
In addition to jury duty changes made by state law last year, officials in Blount County will be making several other changes to the way juries are selected. Instead of serving for two weeks, new jurors will be identified each month but then will be split into four panels, with each panel being assigned four specific days to appear. Officials believe the move will place less of a burden on employers and employees.
The Maryville Daily Times reports
Bredesen reappoints TBI chief
Gov. Phil Bredesen today reappointed Mark Gwyn as director of the Tennessee Bureau of Investigation. Bredesen had appointed Gwyn to his first six-year term as the agency's director in 2004. Gwyn was selected from a field of three finalists submitted by the TBI Director Nominating Commission -- a five-member panel consisting of representatives from the judicial and legal communities. Prior to being named director, Gwyn was assistant director of the Forensic Services Division, an executive officer and special agent and criminal investigator. Before joining the TBI, he was a patrolman for the McMinnville Police Department.
Read the governor's statement
New laws take effect today
A number of new laws take effect today in Tennessee, including new armed-robbery and aggravated rape laws, concealed-carry authority, beefed-up regulation of court reporters and debt managers, and new aggravating factors in death penalty cases.
See a summary of the new laws in the Commercial Appeal
Supreme Court Report
Kagan addresses access to justice issues
During questioning yesterday by members of the Senate Judiciary Committee, Supreme Court nominee Elena Kagan spoke about her views on legal aid for low-income Americans saying the need is vast and that the country "should be able to work out a system in which such help can be provided." She remarked that students at Harvard Law School who participated in pro bono discovered "an incredibly meaningful part of being a lawyer" -- that of providing "real services to people who need them" and making "a difference in the world." When asked about whether the legal profession is doing enough in this arena, Kagan said, "We surely can do better" and suggested that Supreme Court justices have a role to play to see that the profession "really lives up to the ideals that it has."
Read more from the Legal Services Corporation's weekly e-bulletin
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-- Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients and Others
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