EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL.
With dissenting opinion.
Court: TN Supreme Court

Attorneys:

Robert A. Talley, Kenneth Shuttleworth, and Jessica M. Hackett, Memphis, Tennessee, for the appellant, Consultants in Anesthesia, Inc.

Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Oakland, Tennessee, for the appellee, Eddie C. Pratcher, Jr.

Judge: LEE

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.

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Koch Dissenting

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WILLIAM MICHAEL RAY ET AL. v. SOUTHERN TENNESSEE MEDICAL CENTER, LLC ET AL.
Court: TN Court of Appeals

Attorneys:

Richard D. Piliponis, Nashville, Tennessee, for the appellant, William Michael Ray.

Darrell G. Townsend, Nashville, Tennessee, for the appellee, Asher A. Turney.

Judge: BENNETT

In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness to testify. We find no error in the trial court’s decision.

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BASSAM ISSA v. JACK BENSON, SR.
Court: TN Court of Appeals

Attorneys:

John R. Anderson and Joseph W. Dickson, Chattanooga, Tennessee, for the appellant, Bassam Issa.

Travis R. McDonough, Zachary H. Greene, and, Jack Benson, Jr., Chattanooga, Tennessee, for the appellee, Jack Benson, Sr.

Phillip A. Noblett and Patrick P.H. Bobo, Chattanooga, Tennessee, for Amicus Curiae, City of Chattanooga, in support of appellee, Jack Benson, Sr.

Judge: SWINEY

This appeal concerns alleged defamation and the applicability of both the legislative privilege and the litigation privilege. Bassam Issa (“Issa”), a developer seeking rezoning of certain real property, sued Chattanooga City Councilman Jack Benson, Sr. (“Benson”) in the Circuit Court for Hamilton County (“the Trial Court”). Issa alleged that, in two separate incidents, Benson had defamed him by accusing him of offering a bribe to influence Benson’s vote on the rezoning matter. Benson filed a motion for judgment on the pleadings, arguing that his statements were protected by the legislative privilege and the litigation privilege. The Trial Court granted Benson’s motion. Issa appeals. We affirm the judgment of the Trial Court.

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SUZANNE W. BUTLER v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
Court: TN Court of Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Suzanne W. Butler.

James E. Robinson, Andrew D. McClanahan, Patrick J. Bradley, and Cynthia E. Gross, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: CLEMENT

This appeal arises from a claim under the Governmental Tort Liability Act for injuries sustained by an employee of the Metropolitan Police Department that allegedly resulted from a fall in the break room at her workplace. The employee alleged that the chair she attempted to sit in, which had caster wheels, constituted a dangerous condition because it was on an uncarpeted, tile floor. She also alleged that the Metropolitan Government had notice of the dangerous condition and was negligent in failing to provide a safe work environment and in permitting the dangerous condition to remain. Following a bench trial, the court dismissed the action finding that Plaintiff failed to prove her negligence claim by a preponderance of the evidence because the evidence did not establish that the Metro Police Department had actual or constructive notice of any dangerous condition with sufficient time to take corrective action. We affirm.

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RAMEY MICHELLE LONG v. GREYHOUND LINES, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

Michael S. Long, Memphis, Tennessee, for the appellant, Ramey Michelle Long.

T. Franklin Gilley, III, Murfreesboro, Tennessee, for the appellees, Judith R. Adair and Carol L. Casteel.

Judge: BENNETT

Motorist brought suit against multiple defendants for injuries arising out of two car accidents. The trial court granted summary judgment in favor of two defendants. Because genuine issues of material fact preclude summary judgment, we reverse.

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JORDAN K. WILSON v. DAVID W. DOSSETT, AMERICAN HONDA MOTOR CO., AND FOX HEAD, INC.
Court: TN Court of Appeals

Attorneys:

Jill Jenson Thrash and Stuart Fawcett James, Chattanooga, Tennessee, for the appellant, Jordan K. Wilson.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellee, David W. Dossett.

Judge: SWINEY

This appeal concerns a landowner’s potential liability to a person injured while riding a motorcycle on the landowner’s property. Jordan K. Wilson (“Wilson”) suffered severe injuries in a motorcycle accident on property owned by David W. Dossett (“Dossett”). Wilson sued Dossett in the Circuit Court for Campbell County (“the Trial Court”). Dossett filed a motion for summary judgment, asserting the affirmative defense for landowners under Tenn. Code Ann. § 70-7-102. The Trial Court held that Dossett was afforded protection under the statute as Wilson had been engaged in recreational activities on Dossett’s land. At a subsequent hearing, the Trial Court found that no exception to the statutory defense was applicable. Wilson appeals. We hold that Tenn. Code Ann. § 70-7-102 applies to shield Dossett from liability as Wilson was engaged in recreational activities on Dossett’s property, and that no exception to the defense is applicable. We affirm the judgment of the Trial Court.

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TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. W. PHILLIP REED, ET AL.
Court: TN Court of Appeals

Attorneys:

David T. Black, Melanie E. Davis, and Andrew S. Trundle, Maryville, Tennessee, for the appellants, Rufus Everett, Delight Everett, and Lilla Farner.

John T. Johnson, Jr., and Brandon L. Morrow, Knoxville, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: SWINEY

Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”) sued W. Phillip Reed, Personal Representative of the Estate of Carol LaRue; Rufus Everett; Delight Everett; and Lilla Farner seeking a declaratory judgment with regard to rights and obligations under a commercial general liability insurance policy. Tennessee Farmers filed a motion for summary judgment. After a hearing the Trial Court entered its order on June 12, 2012 granting Tennessee Farmers summary judgment after finding and holding, inter alia, that the insurance policy was not ambiguous, that the phrase “property damage” in the insurance policy did not include the type of loss allegedly suffered by the Everetts and Ms. Farner, and that the commercial general liability insurance policy provides no coverage to W. Phillip Reed as Personal Representative of the Estate of Carol LaRue for the claims filed by the Everetts and Ms. Farner. Rufus Everett, Delight Everett, and Lilla Farner (“Defendants”) appeal to this Court. We affirm.

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GREGORY E. HEARN ET AL. v. ERIE INSURANCE EXCHANGE
Court: TN Court of Appeals

Attorneys:

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

Jean Dyer Harrison, Nashville, Tennessee, for the appellee, Gregory E. Hearn and Kimberlee Hearn.

Judge: BENNETT

Homeowners claim that cracks in the exterior bricks of their home were caused by blasting in the neighborhood. Their insurance company denied coverage under the homeowner policy. The jury returned a verdict in favor of the homeowners. Based upon our construction of the insurance contract and its exclusion for damage caused by earth movement, we conclude that the judgment approving the verdict is erroneous and must be reversed.

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GEORGE SMITH v. GENERAL TIRE AND EMILY ALEXANDER
Court: TN Court of Appeals

Attorneys:

Herbert Schaltegger, Thomas R. Lewis, Nashville, Tennessee, for the appellant, George Smith.

W. Bryan Brooks, Alisha M. Toll, Benjamin J. Miller, Nashville, Tennessee, for the appellees, General Tire and Emily Alexander.

Judge: COTTRELL

A man who was injured in a head-on collision filed suit against the woman driving the car that hit him and the company that owned the car. The defendants filed a motion for summary judgment, accompanied by affidavits indicating that the woman unexpectedly blacked out just prior to the collision, probably as a result of her diabetic condition. After examining the affidavits of medical experts for both the plaintiff and the defendants, the trial court granted summary judgment to the defendants, holding that the driver’s loss of consciousness was unforeseeable. The plaintiff appeals the summary judgment. We affirm the trial court.

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MARTIS J. KELLEY ET AL. v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
Court: TN Court of Appeals

Attorneys:

Jimmy W. Bilbo and Brent J. McIntosh, Cleveland, Tennessee, for the appellants, Martis J. Kelley and Joseph Kelley, Sr.

Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority.

Judge: SUSANO

This is a medical malpractice action filed pursuant to the Tennessee 1 Medical Malpractice Act (“the TMMA.”) The plaintiffs are wife and husband. The sole defendant is a governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The defendant operates a hospital in Chattanooga. The complaint alleges that wife was a victim of medical malpractice at the hospital in February 2010. On February 2, 2011, the plaintiffs sent the notice required by Tenn. Code Ann. § 29-26-121(a) (2012), a part of the TMMA. On June 3, 2011, the plaintiffs filed suit against the Hospital Authority. The Authority filed a motion to dismiss pursuant to the provisions of Tenn. R. Civ. P. 12(6), arguing that the suit was not timely filed because it was not filed within the one-year statute of limitations, Tenn. Code Ann. § 29-20-305(b) (2012), set forth in the GTLA. The plaintiffs responded that the period of limitations was extended by 120 days by Tenn. Code Ann. § 29-26-121(c) because the plaintiffs had complied with the pre-suit notice requirements of Tenn. Code Ann. § 29- 26-121(a). The trial court dismissed the complaint as untimely filed. The plaintiffs appeal. We affirm.

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