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Posted by: Christy Gibson on Oct 17, 2013

May - July 2013

Mini Summaries

Insurance

·      Insurance Coverage Denied When Residential Structure Damaged by Blasting

       Hearn v. Erie Insurance Exchange, 2013 WL 2420476 (Tenn. Ct. App. May 31, 2013).

o   Addressing whether blasting damage to residential structure was covered by homeowner’s policy based on its definition of “Earth movement”.

 

·      General Commercial Insurance Policy Does Not Provide Coverage to Personal Representative of Insured: Tenn. Farmers Mutual Ins. Co. v. W. Phillip Reed, et al., No. E2012-01392-COA-R3-CV (Tenn. Ct. App. June 10, 2013).

o   Addressing whether insurer was entitled to summary judgment based on policy’s definition of “property damage”, and whether personal representative of decedent policyholder was entitled to commence such suit.

Punitive Damages

·      Trial Court’s Finding of No Juror Misconduct Affirmed on Appeal

       Worley v. Rarity Communities, Inc., 2013 WL 3958444 (Tenn. Ct. App. July 29, 2013).

o   Addressing whether jurors’ use of a quotient in determining punitive damages constituted a “gambling” verdict and was therefore a form of juror misconduct.

Summary Judgment

·      Funeral Home Entitled to Summary Judgment on Liability for Auto Collision Involving “On Call” EmployeeCooper v. Robert Ledford Funeral Home, Inc., 2013 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 29, 2013).

o   Addressing whether the funeral home was entitled to summary judgment when one of its “on call” employees was involved in an automobile accident on his way to work.

Tort

·      Slip and Fall Outside Restaurant Not Caused by Dangerous ConditionGrady et al. v. Summit Food Corp., 2013 Tenn. App. LEXIS 530 (Tenn. Ct. App. Aug. 13, 2013).

o   Addressing whether woman’s fall on concrete ramp outside restaurant constituted a “dangerous condition” which would lead to a successful motion by defendant for summary judgment.

Workers’ Compensation

·      Employee Entitled to Have Compensation Award Reconsidered After Injury WorsenedConatser v. Fentress Farmers Coop. and Sentry Ins., 2013 Tenn. LEXIS 629 (Tenn. July 26, 2013).

o   Addressing whether surgeries and complications subsequent to worker’s compensation award entitled plaintiff to have award reconsidered.

Judicial Recusal

·      Appellate Court Affirms Judge’s Denial of Motion for RecusalVan Duyn v. Electronic Innovations, LLC, et al., 2013 Tenn. App. LEXIS 383 (Tenn. Ct. App. June 10, 2013).

o   Addressing whether trial court’s denial of motion to recuse was proper based on his previous service with defendant on a non-profit board.

Contracts

·      Penalty Clause in Contract for Sale of Property Struck DownBachour v. Mason, 2013 WL 2395027 (Tenn. Ct. App. May 30, 2013).

o   Addressing whether a clause providing for $75,000 to be retained by buyer if contract not completed by a certain date was a penalty clause or a liquidated damages provision.

 

Products Liability

·      Threshold Issue of Federal Preemption Leads to Reaffirmation on AppealClifton A. Lake, et al. v. The Memphis Landsmen, LLC et al., 2013 WL 1850761 (Tenn. Ct. App. May 3, 2013).

o   Addressing whether $8 million verdict against bus manufacturers was preempted by Federal Motor Vehicle Safety Standards.

 

Full Summaries

Insurance

Hearn v. Erie Insurance Exchange, 2013 WL 2420476 (Tenn. Ct. App. May 31, 2013).

The Tennessee Court of Appeals reversed a judgment in favor of the homeowners.  Plaintiffs filed suit after they made a claim with their homeowner’s insurance company because cracks developed in their home’s brick exterior.  Plaintiffs alleged the cracks were caused by commercial blasting near their home and should be covered by their homeowner’s policy.  The specific language within the policy, however, excluded coverage for earth movement “caused by natural or manmade events.”  The appellate court found that the vibrations that caused the cracks in the house were manmade earth movements, which fell within the policy’s exclusion. 

 

Tenn. Farmers Mutual Ins. Co. v. W. Phillip Reed, et al., No. E2012-01392-COA-R3-CV (Tenn. Ct. App. June 10, 2013).

This appeal involved the terms of a general liability policy issued by Tennessee Farmers Mutual Insurance Company (hereinafter “Farmers”) to Carol LaRue d/b/a Financial Resources Center (“LaRue”).  Ms. LaRue’s investment clients filed suit against her for alleged negligence when she rendered financial advice and failed to disclose the risks involved in those investments.  Farmers filed a motion for summary judgment on the basis that the general liability policy issued to LaRue did not cover economic losses to investment clients.  The trial court granted Farmers’ motion for summary judgment.  Defendants challenged the grant of summary judgment because they alleged that their economic losses were the result of negligence and constituted “property damage”, which was covered under the policy.  The Court of Appeals held that purpose of a general liability policy is not to plan for economic loss recovery, so there was no error in granting summary judgment to Farmers. 

 

Punitive Damages

Worley v. Rarity Communities, Inc., 2013 WL 3958444 (Tenn. Ct. App. July 29, 2013).

Defendants appealed on the basis of alleged juror misconduct following a trial in which plaintiffs were awarded both compensatory and punitive damages.  Defendants alleged that a quotient was used to compute plaintiffs’ damages, which resulted in a “gambling” award.  Defendants submitted affidavits from several jurors, which confirmed the use of such quotient in their mathematical calculations.  The Court of Appeals held, however, that because not all jurors agreed in advance to use such the quotient system, there was no juror misconduct.

 

Summary Judgment

Cooper v. Robert Ledford Funeral Home, Inc., 2013 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 29, 2013).

This case of first impression addressed whether an employee’s “on call” status at the time of an automobile accident created respondeat superior liability for his funeral home employer.  Funeral Home’s summary judgment was denied by the trial court.  On appeal, Funeral Home argued that it was not liable for plaintiff’s damages because its employee was not within the scope of his employment at the time of the car wreck.  The court noted in Footnote 4 and 5 of its opinion that T.C.A. § 20-16-101 was intended to abrogate the summary judgment standard set forth by Hannan, reinstating the “put up or shut up” summary judgment framework.  Although plaintiff argued against the application of this standard because of the travel that was part of employee’s job requirements, the Court of Appeals granted Funeral Home’s summary judgment because there was no vicarious liability.  Employee used his personal vehicle to the Funeral Home to “clock in” and obtain a Funeral Home vehicle before he commenced with Funeral Home business.  The Court of Appeals noted that the analysis would be different had the car wreck occurred while employee operated a Funeral Home vehicle on a Funeral Home errand.

 

Tort

Grady et al. v. Summit Food Corp., 2013 Tenn. App. LEXIS 530 (Heard on July 10, 2013 but opinion released byTenn. Ct. App. on Aug. 13, 2013).

Plaintiff Grady slipped and fell at the Pita Pit, a Nashville restaurant owned by defendant.  As a result of her fall on the concrete ramp at the restaurant’s entrance, Grady suffered injuries to her left arm.  Grady filed suit against defendant in Davidson County Circuit Court.  Defendant filed a motion for summary judgment based upon the applicable standard and evidence produced from plaintiffs’ depositions.  Plaintiffs appealed the issues of whether the concrete ramp constituted a dangerous condition, whether defendant was aware of this dangerous condition, and whether defendant failed to correct or warn about the dangerous condition .  The Court of Appeals found that the summary judgment standard was correctly applied, and that it was not foreseeable on defendant’s part that the concrete ramp may cause someone to fall.  Plaintiff admitted that she did not look at the ramp when she walked toward restaurant and there was no evidence that the ramp was slippery.   

 

Workers’ Compensation

Conatser v. Fentress Farmers Coop. and Sentry Ins., 2013 Tenn. App. LEXIS 629 (Tenn. July 26, 2013).

While he worked for the Fentress Farmers Cooperative (“Co-op”), plaintiff had 1,500 pounds of stockade gates fall on him during a delivery.  After a four-month recovery, plaintiff returned to work.  His workers’ compensation claim was settled based upon a 34.5% permanent disability and future medical expenses.  Plaintiff underwent several additional surgeries after the settlement, and stopped work completely in 2010 because of his injuries.  Plaintiff requested a reconsideration of his previous award because the subsequent complications stemmed from the initial injury.  The trial court awarded him permanent partial disability, which employer appealed.  The Court of Appeals affirmed the trial court’s decision, but reversed the finding of permanent disability.   The value of the new award was referred to the Special Workers’ Compensation Appeals Panel for review.

 

Judicial Recusal

Duyn v. Electronic Innovations, LLC, et al., 2013 Tenn. App. LEXIS 383 (Tenn. Ct. App. June 10, 2013). 

One of the defendants, Ronald Jones (“Jones”), served on a non-profit board with the trial court judge.  The judge disclosed this fact to the parties at a status hearing, but claimed that  he and Jones never socially interacted and were only at approximately four of the same board meetings.   Plaintiff filed a motion for recusal on the basis that even if no bias was present, the appearance of bias existed.  The judge denied the motion for recusal.  The Court of Appeals found that Tennessee case law only requires a judge to recuse himself when it is “truly called for under the circumstances.”  The appellate court found no evidence sufficient to question the judge’s impartiality.

 

Contracts

  Bachour v. Mason, 2013 WL 2395027 (Tenn. Ct. App. May 30, 2013).

This appeal involved two contracts between parties for the sale of commercial property.  The dispute arose from a clause contained in the second contract that was not in the first contract, and which gave buyer (plaintiff) a $75,000 deposit toward the contract price.  Pursuant to the clause, buyer would retain the deposit if seller (defendants) failed to complete an access road to the property by a certain date.  When the access road was not completed by the required date, plaintiff filed a declaratory judgment wherein it alleged its contractual right to retain the $75,000 deposit.  The trial court disagreed with plaintiff, and ordered him to pay the entire contract price to defendants.  Plaintiff appealed.  The Court of Appeals held that plaintiff would not have suffered damages from a delay in the access road’s completion and that the contractual clause at issue was based on a figure “plucked from thin air.”  The trial court’s ruling was affirmed.

Products Liability

Clifton A. Lake, et al. v. The Memphis Landsmen, LLC et al., 2013 WL 1850761 (Tenn. Ct. App. May 3, 2013).

After plaintiff sustained severe brain injuries in a bus accident, he filed suit against the bus’ manufacturer, franchisor, and window manufacter.  The bus was used to transport passengers between the local airport and a rental car facility.  A collision between the bus and another vehicle, which caused plaintiff’s injuries.  The jury returned a verdict in plaintiff’s favor that exceeded $8 million, but assessed 100% of the fault against the corporate owner of the concrete truck that collided with the bus.  The concrete truck’s owner settled with the passenger before trial.  As a matter of first impression, the remaining defendants argued that plaintiff’s claims were federally preempted by the Federal Motor Vehicle Safety Standards.  The Court of Appeals affirmed and found that plaintiff’s claims were preempted based on the lack of safety seat belts and the materials that were used to construct the bus’ windows.  Plaintiff appealed to the Tennessee Supreme Court, which remanded for further consideration.  The Court of Appeals reaffirmed.