A Shelby County jury convicted the defendant, Antonio Glover, of aggravated rape for which he received a sentence of seventeen years with the Tennessee Department of Correction. On appeal, the defendant contends that the evidence presented at trial was insufficient to support his conviction and that the trial judge in preventing him from impeaching the victim with evidence of the victim’s prior sexual history. Following our review, we affirm the defendant’s conviction.

The Petitioner appeals as of right the Bradley County Criminal Court’s order dismissing his motion to correct illegal sentences. Upon our review, we conclude that the Petitioner has failed to prepare a sufficient brief compliant with Tennessee Rule of Appellate Procedure 27(a)(7) and Tennessee Court of Criminal Appeals Rule 10(b). Accordingly, the Petitioner’s issues are waived, and his appeal is dismissed.

Because the order from which the appellant has filed an appeal does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

In this interlocutory appeal, the employee alleged she sustained right leg, right foot, and bilateral hip injuries when a large trash container fell on her at work. Although the employer asserted the employee had failed to give proper notice of her alleged work injury, it provided a panel of physicians upon receiving notice of the incident, and the employee selected a provider. Thereafter, the employee filed a hearing request asking the trial court to enter an order compelling the employer to pay temporary disability and additional medical benefits, including surgery. Following an expedited hearing, which included consideration of medical records and expert medical testimony from the authorized treating physician, the trial court denied the employee’s request for benefits. The employee has appealed, alleging in part that the trial court failed to consider pertinent medical records and other documents. After a careful review of the record, we affirm in part and reverse in part the trial court’s order and remand the case.

A group of Democratic Tennessee lawmakers is asking the U.S. Department of Justice (DOJ) to investigate how the state has further restricted the process for people with felony records to get their voting rights back, reports the Associated Press. The group argues that "Tennessee law permits restoration of voting rights through a straight-forward administrative procedure," but the elections office has imposed additional requirements that people get their full citizenship rights restored or secure a pardon in addition to the restoration processes that have been in place. The policy changes began last summer, halting nearly all voting rights restorations. The issue once again sparked outcries from voting rights advocates after elections officials in January made another legal interpretation that restoration of gun rights is part of the requirement. Because of those changes, coupled with existing state and federal laws for certain offenses that permanently ban someone from getting their gun rights back, critics argue the state’s new policy permanently disenfranchises tens or possibly hundreds of thousands of people from getting another chance to vote.

The Administrative Office of the Courts (AOC) has named Samantha Fisher as communications director. In this role, Fisher will serve as spokesperson for the Supreme Court of Tennessee and the AOC. In addition, she will provide communications support to AOC initiatives focused on improving public education and understanding of the judicial branch and its essential role in a democratic society. Previously, Fisher served as communications director for the Office of the Tennessee Attorney General and Reporter where she led and coordinated messaging on the $26 billion opioid distributor’s settlement.

In the second appeal in this matter, the employee appeals a compensation order granting summary judgment to the employer. The employee, a superintendent at a construction site, was in a motor vehicle accident after taking another worker to pick up his vehicle following some repairs. The employee sought workers’ compensation benefits for alleged injuries to his neck, back, left leg, and left foot. The employer denied the claim, and, after an expedited hearing, the trial court determined the employee failed to show he was likely to prevail at trial. The employee appealed, and we affirmed the trial court’s order. Subsequently, the employer filed a motion for summary judgment, arguing that the employee gave insufficient notice of an alleged work accident and that the injury did not arise primarily out of or in the course and scope of the employment. The employer also argued the employee did not have the necessary medical proof to show his alleged injuries were primarily caused by the motor vehicle accident. The trial court determined that the employee came forward with no evidence creating a genuine issue of material fact concerning whether the motor vehicle accident occurred in the course and scope of his employment, granted the employer’s motion for summary judgment, and dismissed the employee’s claim. The employee has appealed. Following careful review of the record, we affirm the order granting summary judgment and dismissing the claim and certify the trial court’s order as final.

A bill that would require all written driver’s license tests to be given only in English will be taken up by the Senate Transportation and Safety Committee on Wednesday. According to the Nashville Post, SB1717/HB1730, sponsored by Sen. Joey Hensley, R-Hohenwald, and Rep. Kip Capley, R-Summertown, “prohibits use of a translation dictionary, electronic device or interpreter to assist with the examination.” Currently, Tennessee offers standard driver’s license tests in English and Spanish. Rep. John Ray Clemmons, D-Nashville, said, “I represent one of the most diverse districts in the state of Tennessee, probably one of the largest immigrant populations in the state ... That is a blatantly discriminatory bill designed to target specific individuals.”

The Certificate of Need Reform Working Group, made up of Republican Tennessee lawmakers, will file a bill this legislative session that will overhaul the current Certificate of Need Program (CON), according to a Feb. 26 email sent to 36 senators and representatives obtained by the Nashville Business Journal. The CON was established in 1972 by the federal government and is a permit for the establishment or modification of a health care institution, facility or service at a designated location, according to the Tennessee Department of Health. The bill will be aimed at eliminating the requirements for certain types of medical facilities and lightening restrictions for others, eliminating the CON requirements for freestanding emergency departments, intellectual and developmental disabilities (IDD) habitation facilities that are licensed by the Tennessee Department of IDD, burn units, neonatal intensive care units and organ transplant facilities. If the bill passes, the new requirements would go into effect on July 1, 2025, and new facilities would be required to receive accreditation within two years. 

Last June, the U.S. Supreme Court issued its landmark decision in Students for Fair Admission, Inc. v. President and Fellows of Harvard College (2023). The opinion ended a generation of affirmative action in higher education admissions by declaring that race-based admissions practices violate the Equal Protection Clause of the Fourteenth Amendment. Business lawyers may also find interesting the related litigation concerning Harvard’s ability to obtain insurance coverage for the enormous litigation costs it has incurred in defending the affirmative action suit. That is the subject of a recent opinion by the U.S. Court of Appeals for the First Circuit, President and Fellows of Harvard College v. Zurich American Insurance Company (1st Cir. 2023).

At the time that Students for Fair Admission filed its lawsuit against Harvard, Harvard held two liability insurance policies to cover litigation costs and the payment of any liabilities it might incur due to judgment or settlement for claims filed during the coverage period. Harvard’s primary insurance policy, with AIG, included coverage up to $25 million. It also held a secondary policy with Zurich to cover any additional liability up to $15 million.

Both the AIG and Zurich policies contained a common condition precedent requiring Harvard to provide written notice of any claim or potential claim against it by a certain date to exercise its rights as a policyholder. The Zurich policy, which provided coverage for claims filed against Harvard between November 1, 2014 to November 1, 2015, required Harvard to provide notice to Zurich no later than January 30, 2016.

Students for Fair Admission filed its complaint on November 17, 2014. Harvard notified AIG of the pending action by Students for Fair Admission two days after it was filed. However, it failed to provide written notice to Zurich until May 23, 2017, nearly sixteen months after the date required by the policy. Zurich denied coverage, and Harvard sued Zurich in federal court in Massachusetts. The district court granted summary judgment to Zurich, and Harvard appealed.

For the First Circuit, this case was a relatively straightforward application of Massachusetts insurance law. And under that state law, notice provisions in occurrence-based policies are treated differently than those claims-based policies. While a failure to adhere to a notice requirement in an occurrence-based policy will only terminate coverage if it prejudices the insurer, that same failure in a claims-based policy is strictly enforced, and the insurer is not required to show prejudice. This is because notice provisions “are of the essence” of claims-based policies, “intended not merely to facilitate an investigation into the facts underlying a claim but also – just as importantly – to promote fairness in rate setting.”

Harvard also raised a couple of additional arguments: first, that Zurich may have had actual notice of the Students for Fair Admission lawsuit, given its high-profile nature, and that there should be a judicially created exception to the rule for claims-based policies where the insurer has actual notice; and second, that strict enforcement of the condition precedent would be against public policy. The First Circuit was unmoved by these arguments, noting that as a federal court sitting in diversity, it cannot create exceptions to established state contract law or opine as to the public policy of the state. Rather, its duty is to faithfully apply state law. And having deliberately chosen the forum by filing its lawsuit in federal court, Harvard is not in a position to ask the court “to blaze a new trail that the [Massachusetts] courts have not invited.”

Notably, the law in Tennessee on the issue decided in Zurich is somewhat unclear. In Alcazar v. Hayes (Tenn. 1998), the Tennessee Supreme Court adopted a “modern trend” in insurance law that requires prejudice to the insurer to strictly enforce a condition precedent requiring the policyholder to provide timely notice. Specifically, failure to provide timely notice of a claim under an uninsured/underinsured motorist policy creates a rebuttable presumption that the insurer was prejudiced; however, by presenting competent evidence that the insurer was not prejudiced by the delay, the policyholder can still recover. Two years later, in American Justice Insurance Reciprocal v. Hutchison (Tenn. 2000), the state supreme court extended this rule to general liability policies. However, in Pope v. Leuty & Heath, PLLC, (Tenn. Ct. App. 2002), the Middle Section of the Court of Appeals declined to apply the Alcazar rule to claims-based policies, noting that the policies at issue in both Alcazar and Hutchison were occurrence-based policies. A subsequent federal court decision, Wallace v. General Star Indemnity Company (E.D. Tenn. 2007), applied Pope to find for the insurer when the holder of a professional liability insurance policy failed to provide notice of the claim until two days after the last day of the policy period, which happened also to be the very day the policyholder was served with the malpractice claim.

To date, the Tennessee Supreme Court still has not addressed directly the question of whether notice provisions in claims-based policies should be strictly enforced, or whether the insurer should be required to show it was prejudiced by the failure to provide notice. Unfortunately for Harvard, however, the Massachusetts Supreme Judicial Court has, and as a result, it cannot recover under its secondary liability policy with Zurich. Since all business lawyers probably represent clients who carry insurance for something, this case, and the issues it raises, are worth your attention.

This article was contributed by Matt Lyon. He is a member of the TBA Business Law Section’s Executive Council and vice president and dean of the Lincoln Memorial University Duncan School of Law in Knoxville. He teaches contracts, business associations, civil procedure and payment systems. Prior to joining the LMU Law faculty in 2011, Lyon served as senior judicial clerk to Justice Gary R. Wade of the Tennessee Supreme Court and was a commercial litigation associate at Sidley Austin LLP in Chicago. Matt can be reached at Matthew.Lyon@lmunet.edu or 865-545-5318.