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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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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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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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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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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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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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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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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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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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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