TBA Law Blog


Posted by: Lynn Pointer on Aug 9, 2012

SUMMARY OF CASES             

The Executive Council of the TBA’s Litigation Section provides this as a service to its members.  This summary was prepared by Daniel D. Coughlin, Massengill, Caldwell & Coughlin, P.C., who is currently serving as Chair of the Section.

 

MAY - JULY, 2012

Civil Procedure

Rajvongs v. Wright, No. M2011-01889, 2012 Tenn. App. LEXIS 393 (June 18, 2012), perm. app. filed (Tenn. July 20, 2012); and Johnson v. Floyd, No. W2012-00207, 2012 Tenn. App. LEXIS 448 (June 29, 2012), pet. for reh’g filed (July 13, 2012) (the Middle and Western Sections of the Tennessee Court of Appeals split as to whether the notice provisions of the medical malpractice statute found at T.C.A. § 29-26-121(c)(Supp. 2011) extend the time to refile an action under the Saving Statute found at T.C.A. § 28-1-105(a)(2000)).

In Rajvongs, the middle section held that Tenn. R. Civ. Proc. 3 and a remedial interpretation of the Saving Statute both lent themselves to a holding that said notice provisions did extend the time for refiling medical malpractice claims under the Saving Statute past the normal one-year deadline.  In so holding, the Rajvongs court stated that Cunningham v. Williamson County Hosp. Dist., No. M2011-00554, 2011 Tenn. App. LEXIS 645 (Nov. 30, 2011), perm. app. granted (Tenn. Apr. 11, 2012) provided helpful guidance in holding that the notice provisions permit Plaintiffs to refile up to 120 days past the one-year time period set forth in the Savings Statute.  In contrast, the western section held in Johnson that Rajvongs’ reliance on Cunningham was misplaced.  In so doing, Judge Stafford wrote that the time limitations for GTLA actions (such as the Cunningham action) have been considered “statutes of limitation” by Tennessee courts, whereas the Saving Statute has not.  Thus, the western section held that compliance with the notice requirements does not operate to extend the Saving Statute beyond a year.

Mann v. Alpha Tau Omega Fraternity, No. W2010-02316, 2012 Tenn. LEXIS 468 (July 3, 2012) (defendants previously dismissed from a cause of action by dispositive motion may be properly made defendants again by the plaintiffs via T.C.A. § 20-1-119 (2009), where previous dismissal was not a final judgment).

After Plaintiffs amended their complaint to add Additional Defendants to their negligence action, the trial court granted Additional Defendants dismissal based on the statute of limitations.  A few days later, the original defendants amended their answer to allege the fault of Additional Defendants.  Accordingly, Plaintiffs amended their complaint again to reassert their cause of action against Additional Defendants.  After the trial court and court of appeals once again dismissed Additional Defendants, the supreme court reversed.  Writing for a unanimous court, Chief Justice Clark held that nothing in said statute precludes “a plaintiff from amending her complaint to again name as a comparative tortfeasor are a person previously dismissed from the suit.” (Citing Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 454 (Tenn. App. 2001)).  The court then specifically adopted “the reasoning of Townes” in holding that a defendant ceases to be a “party to the suit” for purposes of the above statute when the trial court dismisses that defendant, whether or not the order of dismissal is final or interlocutory.  Thus, the court held that a person not a party to the suit includes any defendant previously dismissed, whether the order was final or not, for purposes of T.C.A. § 20-1-119.

Kouichi Taniguchi v. Kan Pac. Saipan, Ltd.,132 S. Ct. 1997 (U.S. 2012) (interpreter’s fees for translating documents in preparation for trial are not part of the costs awardable under Fed. R. Civ. Proc. 54(d), since interpreter’s fees listed in 28 U.S.C. § 1920 refer to oral translation rather than document translation).

In writing for a 6-3 majority, Justice Alito held that the common meaning of “interpreter” did not include document translators.  Thus, the Court reversed the lower courts’ award of the interpreter’s fees.  Speaking for the dissent, Justice Ginsburg argued that there was no good reason to exclude written translations in preparation for trial from the taxable costs awardable to the prevailing party.

Culbertson v. Culbertson, No. W2011-00860, 2012 Tenn. App. LEXIS 328 (May 23, 2012), perm. app. filed (Tenn. July 9, 012) (mere denial of abuse coupled with attempt to obtain custody does not waive psychologist-client privilege codified in T.C.A. § 63-11-213 (2010)).

In responding to divorce complaint, Husband denied allegations of physical and emotional abuse and demanded “strict legal proof thereof”, while counterclaiming for divorce and seeking sole custody of the parties’ children himself.  When the trial court granted Wife’s motion for release of Husband’s psychological records, the court of appeals granted Husband’s request for extraordinary appeal.  In an unanimous opinion authored by Judge Farmer, the western section noted that since the statutory language creating the privilege placed it on the same footing as the attorney-client privilege, cases discussing the latter are instructive.  After reviewing such cases, the court addressed Wife’s argument that Husband’s aforesaid actions waived the privilege.  The court noted that if denying allegations of mental instability and abuse waived such privilege, then the same would not apply in any child custody cases.  After finding that the trial court abused its discretion, it ordered that the trial court instead review the psychological records of Husband solely in camera, and thereafter enter an appropriate protective order for such records.

Doe v. USA Swimming, No. M2011-01718, 2012 Tenn. App. LEXIS 379 (June 12, 2012) (Tennessee courts may properly award monetary sanctions against non-party deponents based on conduct of such deponents and their counsel at a deposition in another state).

In a California civil action, Plaintiff caused a Tennessee subpoena to be issued and served upon Non-Party Deponent pursuant to the Uniform Depositions and Discovery Act found at T.C.A. §§ 24-9-201 through -207 (Supp. 2011).  After being served, Deponent requested that Plaintiff depose him at his attorney’s office in Indiana.  Following agreement by Plaintiff, Deponent’s non-Tennessee attorney “behaved in an unprofessional and combative manner . . . [objecting] to almost every question . . . often without stating a basis for the objection, and instructed” Deponent not to answer most of the other questions, frequently because they had allegedly been asked and answered in a previous deposition by a different plaintiff.  After the trial court imposed sanctions in the amount of $6,6035.00 against Deponent, but not his attorney, Deponent appealed, but the court of appeals affirmed.  The court began its analysis by noting that the aforesaid Act specifically incorporates by reference the Tennessee Rules of Civil Procedure, and empowers the trial court to award attorney’s fees and expenses in connection with a successful motion to enforce, modify or quash a subpoena under it.  In addition to noting that Deponent’s counsel was “belligerent, insulting and most unprofessional,” the court further noted that while he accused Plaintiff’s counsel of attempting to harass and abuse Deponent, he at no time moved for a protective order as authorized by Tenn. R. Civ. Proc. 30.04, but instead walked out with Deponent in the middle of questioning.  Accordingly, even though Deponent was “largely silent during the deposition,” the court opined that the trial court did not abuse its discretion in sanctioning Deponent under Rule 37, given the severity of his attorney’s rule violations.  The court specifically found that Deponent’s “acquiescence about his attorney’s conduct speaks volumes.”  The court also found it important to note that this was not Deponent’s first deposition.

Covered Bridge Resort on Waldens Creek, LLC v. Johnson, Murrell & Assocs., P.C., No. E2011-01437, 2012 Tenn. App. LEXIS 441 (June 29, 2012) (when factual disputes impact whether or not evidence sought in discovery is privileged, trial courts “can and often must” resolve such disputes without a jury, and may hold summary judgment motions abeyance until completion of discovery).

After the trial court granted Plaintiff’s motion to compel evidence which Defendant contended was attorney-client privileged (finding the privilege had been waived), and held Defendant’s motion for summary judgment in abeyance pending completion of discovery, Defendant appealed, claiming that the trial court “prematurely” decided issues of fact pertaining to the privilege issue instead of allowing a jury to decide such issues.  The court of appeals affirmed, noting that Defendant’s contentions would put the trial court in a procedural “Catch 22" position.  It also held that this case did not present an appropriate situation in which to decide whether or not adopt the “joint client exception” to waiver of the privilege.

Wilkerson v. Leath, E2011-00467, 2012 Tenn. App. LEXIS 409 (June 22, 2012) (under current Tennessee law, judgment of conviction (even if final) cannot be used for collateral estoppel purposes by a private plaintiff because mutuality requirement is not satisfied).

After Wife was found guilty of first degree murder, Daughter moved for summary judgment in civil action which she had filed to prevent Wife from inheriting Decedent’s estate.  The Tennessee Court of Appeals reversed summary judgment granted to Daughter finding that: (1) a genuine issue of material fact (whether wife intentionally killed Decedent) remained because Wife’s conviction is still pending on appeal; and (2) Daughter’s attempt to utilize conviction to estop Wife from denying that she killed Decedent fails under the mutuality requirement of the collateral estoppel doctrine.  Since Daughter was not a party to the criminal case against Wife, nor in privity with the State of Tennessee, the requisite mutuality of parties was absent.  In his concurrence, Judge Swiney fully agreed with the majority’s conclusions, but urged reconsideration of the mutuality requirement in the application of offensive collateral estoppel.  Noting that the collateral estoppel doctrine was created to conserve resources of both courts and litigants, and to prevent inconsistent decisions, Judge Swiney stated that he knows “of no legitimate reason to allow an individual who has been convicted in a criminal court to relitigate that exact same issue in a subsequent civil suit.”

In re Estate of Trigg, No. M2009-02107, 2012 Tenn. LEXIS 379 (May 30, 2012) (in probate cases decided without a jury, T.C.A. § 30-2-315(b)(2007) confers appellate jurisdiction on the Tennessee Court of Appeals rather than the circuit courts, and a decedent’s real estate is subject to claims in probate by TennCare for properly paid benefits, at least for decedents dying before January 1, 2007).

After the Putnam County Probate Court (created by private act of the legislature) overruled Personal Representative’s exception to TennCare’s claim, she appealed to the circuit court.  When the circuit court reversed, TennCare appealed, asserting for the first time that the circuit court lacked jurisdiction over the appeal from probate.  The court of appeals agreed, and, therefore, affirmed the probate court’s judgment.  In the Tennessee Supreme Court, Personal Representative asserted that T.C.A. § 30-2-609(c)(2007 & Supp. 2011) conferred appellate jurisdiction on the circuit court.  The supreme court thoroughly traced the history of probate jurisdiction back to seventeenth century England.  Justice Koch noted that North Carolina’s county courts (called “Courts of Pleas and Quarter Sessions”) survived Tennessee’s original constitution and statehood in 1796, and that appeals from such county court decisions in Tennessee were properly made to circuit courts for some time thereafter.  Nearly two centuries later, the Tennessee General Assembly vested our chancery courts with “all jurisdiction relating to the probate of wills and the administration of estates” in 1980, except where previously vested by “public, private, special or local acts.”  In 2002, the current version of T.C.A. § 30-2-609 created a “three-tiered system” directing where probate decisions are appealed.  In counties with populations of half a million or more (first tier counties), final probate settlements are appealed to the court of appeals.  The second tier includes counties with a population under half a million.  Third tier counties include those with a population of under half a million where the probate judge “is not” the circuit judge or the chancellor.  Appeals in third tier counties are generally “appropriate to the trial court of general jurisdiction” there.  The supreme court held that Section 30-2-609 was not available to Personal Representative because the decision she appealed did not involve final settlement of the estate.  Thus, Section 30-2-315(b) mandated appeal to the court of appeals.  Accordingly, the supreme court affirmed the vacation of the circuit court’s judgment and reinstatement of the probate court’s judgment.  In addressing TennCare’s ability to reach the real estate of a decedent, the court noted that the General Assembly’s 2006 amendments codified at T.C.A. § 71-5-116 (Supp. 2011) did not apply to this case, because decedent died in 2006.  The court then went on to hold that both federal and pre-2007 state law allowed TennCare to reach decedent’s real estate.

Workers’ Compensation

Gerdau Ameristeel, Inc. v. Ratliff, No. W2011-00381, 2012 Tenn. LEXIS 401 (June 7, 2012) (because workers’ comp. statute of limitations contained in T.C.A. § 50-6-203 (1999) does not commence until a plaintiff discovers, or in the exercise of reasonable diligence, should have discovered he has a claim, statute did not begin running on date of occurrence which caused PTSD, but rather on the date PTSD was diagnosed).

A few months after seeing co-workers fall to their deaths on the job, Employee was taken to the emergency room and diagnosed with Post Traumatic Stress Disorder.  Since Employee waited more than a year from seeing such deaths before requesting a benefit review conference, the trial court eventually granted employer summary judgment.  The Tennessee Supreme Court noted that Employee’s physician testified that Employee did not become “clinically diagnosable” for PTSD until the E. R. visit just one year before the benefit review was requested.  Thus, summary judgment based on the statute of limitations was improper.  Because the trial court had properly made alternative findings that Employee was otherwise entitled to benefits for permanent partial disability to the body as a whole, the court reviewed and approved the same, and found that the trial court should enter judgment on such findings.

Mitchell v. Fayetteville Pub. Utils.,No. M2011-00410, 2012 Tenn. LEXIS 300 (May 8, 2012) (under T.C.A. § 50-6-225(e)(3)(2008), workers’ comp. benefits may be denied for willful failure to comply with known safety rule).

While working in a bucket lift, Plaintiff suffered injuries from a severe electrical shock after he had removed his protective gloves.  Defendant’s safety policy, contained its employee manual, required that Plaintiff keep his rubber gloves on during the time which this accident occurred.  In a 4-1 decision, the Tennessee Supreme Court adopted the elements suggested in 2 Lex K. Larson, Larson’s Workers’ Compensation Law § 35 (Matthew Bender rev’d ed.) as follows:

            1.            The employee’s actual, as opposed to constructive, notice of the rule;

            2.            The employee’s understanding of the danger involved in violating the rule;

            3.            The employer’s bonafide enforcement of the rule; and

            4.            The employee’s lack of a valid excuse for violating the rule.

The majority held that these are the elements for determining whether an employer can successfully prevail on a defense of willful misconduct, willful disobedience of safety rules, or willful failure to use a safety device.  In so doing, the court noted that other jurisdictions had adopted the same test, which established “straightforward guidelines for evaluating claims of willful misconduct and the willful failure or refusal to use a safety appliance.”  The court then held that Defendant had met its burden to prove all four elements, and, therefore, found that Plaintiff’s injuries were not compensable.  In her lone dissent, Justice Holder opined that Plaintiff’s conduct was not willful, and that the adoption of Larson’s test “will encourage the use of the willful misconduct defense in instances in which the employee’s behavior is no more than negligent, reckless, or the result of bad judgment.”

Employment Law

Lewis v. Humboldt Acquisition Corp.,681 F.3d 312 (6th Cir. 2012) (in granting ADA Plaintiff a new trial for improper jury instruction, the court of appeals rejected not only the “sole-cause” standard with which the jury was charged, but also the “motivating factor” language requested by Plaintiff).

After submitting her case to a jury in the U.S. District Court for the Western District of Tennessee, Plaintiff asked the trial court to charge that the jury should find in her favor if employer’s alleged discrimination “was a motivating factor” in firing her.  Following Sixth Circuit precedent, however, the trial court instructed the jury to return a verdict for Plaintiff only if her disability “was the sole reason” of her termination.  After noting that it was the only circuit using the “solely” test for ADA claims, the court held that Grosse v. FBL Financial Services, 575 U.S. 167 (2009) prohibited the use of either requested jury instruction.  Instead, the court held that Grosse requires instructing that the ADA bars discrimination “because of” any employee’s disability, and, therefore, prohibits discrimination that is a “but for” cause of adverse employment decisions.  In each of the three partial dissents to the majority opinion, the authors fully concurred in the abrogation of the “sole cause” standard.  Noting, inter alia, that the majority of other circuits had adopted the “motivating factor” standard, the partial dissents each rejected the “but for” standard of the majority.

Petschonek v. Catholic Diocese, No. W2011-02216, 2012 Tenn. App. LEXIS 330 (May 23, 2012), perm. app. filed (Tenn. July 23, 2012) (ministerial exception does not deprive the courts of subject matter jurisdiction over Plaintiff’s claims for retaliatory discharge, but such claims are dismissed because Plaintiff was not an employee at-will).

Plaintiff sued for retaliatory discharge.  After the trial court denied Defendant’s motion for summary judgment, the Tennessee Court of Appeals granted interlocutory appeal and reversed.  It first noted the recent United States Supreme Court recent holding that the ministerial exception is an affirmative defense, not a jurisdictional bar.  See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Employment Opportunity Comm’n, 132 S. Ct. 694, 709 n.4 (U.S. 2012).  Because Defendant failed to raise the ministerial exception in the trial court, the court of appeals declined to address its application.  Next, the court noted that the first element of a claim for common law retaliatory discharge is an at-will employment, but that Plaintiff had a written contract for employment with Defendant.  Though Plaintiff asserted that a contract provision allowing Defendant to terminate the same at any time for no cause or reason did create a de facto at-will relationship, the court held that the parties’ agreement was still for a “definite term of contract.”  Because said provision did not convert the parties’ relationship to at-will, Plaintiff’s claim failed to present a prima facie case of common law retaliatory discharge. Concurring, Judge Kirby noted that some courts had held the same way, while other courts had held that an employee with a contract discharged prior to the end of the term of the contract may still assert the tort of retaliatory discharge. Since holding otherwise would extend Tennessee’s common law, she agreed that the court properly declined to do so.

Insurance Law

Clark v. Sputniks, LLC, Nos. M2010-02163 & M2010-02145, 2012 Tenn. LEXIS 378 (May 30, 2012) (insurer is not collaterally stopped by operation of estoppel by judgment from asserting lack of coverage by default judgments being entered against insureds in underlying tort actions, and the concurrent cause doctrine does not provide coverage where there is no non-excluded concurrent cause which is a substantial factor in producing damages).

Plaintiff’s Decedent was killed in a bar fight in which Second Plaintiff was allegedly injured while trying to intervene.  After Plaintiffs sued the bar (which gave notice of the suit to Insurer), Insurer denied coverage.  After default judgments were entered against the bar, declaratory actions were brought against Insurer and the trial court held that Insurer’s policy covered bar under two separate provisions.  The court of appeals thereafter agreed that the liquor liability provisions did indeed cover Plaintiffs’ claims.  On further appeal, the Tennessee Supreme Court reversed, holding first that “judgment by estoppel does not apply because the altercation at [the bar] is not covered by either the commercial policy provisions or liquor liability provisions of the policy.”  The court also held that estoppel “should not be used offensively to create a duty to defend or indemnify where none existed . . ..” (Emphasis added).  Next, the court recognized that the concurrent cause doctrine provides that “there is insurance coverage in a situation ‘where nonexcluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have contributed in some form to the ultimate result and, standing alone, would have properly invoked the exclusion contained in the policy.’” (Quoting Allstate Ins. Co. vs. Watts, 811 S.W.2d 883, 887 (Tenn. 1991)).  However, because Plaintiffs only alleged negligence in connection with the prevention or suppression of the assault and battery, and because the policy specifically excluded assault and battery or any act or omission in connection with the prevention or suppression of same, there simply was no “non-excluded” cause alleged to be a substantial factor in the death and injury complained of.

Domestic Relations

In re Haily A.S., No. M2011-02760, 2012 Tenn. App. LEXIS 518 (July 30, 2012) (grandparents of child already in DCS custody may not intervene in foster parent’s action to adopt).

After minor child’s father died, DCS terminated mother’s parental rights and obtained guardianship.  Foster Mother petitioned for adoption and Grandparents moved to intervene, claiming their adoption would serve child’s best interest.  Distinguishing In re Sidney J., 313 S.W.3d 772 (Tenn. 2010), the court of appeals noted that DCS held a full guardianship over this child, whereas its guardianship over Sidney J. was only temporary.  The court also noted that Grandparents did not even attempt to terminate DCS’ guardianship.  Therefore, DCS had the right to proceed with adoption placement as it did.  The court went on to say that “at best,” Grandparents could have sought permissive intervention (as opposed to mandatory), and that there was no error in the trial court denying their motion to intervene.

Tort Liability

McLemore ex rel. McLemore v. Elizabethton Med. Investors, No. E2010-01939, 2012 Tenn. App. LEXIS 415 (June 22, 2012) (punitive damages of $4.25 million are affirmed, despite the existence of just $225,000 in compensatory damages).

After a lengthy trial, the jury returned a verdict finding that Defendants recklessly committed medical malpractice in the care of Plaintiff’s Decedent at their nursing home, awarding $500,000 in compensatory damages, and  $4.25 million in punitives.  After hearing Defendants’ post-trial motions, the trial court suggested a remittitur in the amount of $275,000, reducing compensatory damages to $225,000.  The court of appeals initially noted that Defendants had procedurally waived the right to appeal the sufficiency of the evidence because they failed to move the trial court for a directed verdict at the conclusion of the proof.  Chief among other issues on appeal was whether the punitives awarded violated due process, where the same were 18.8 times higher than the compensatory award.  See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)(“few awards exceeding a single-digit ratio between punitive and compensatory damages . . . will satisfy due process.”).  The court of appeals noted that where the compensatory damage award was “low”, the aforesaid ratio may be higher to accomplish the purpose of punitive damages.  Upon reviewing the three guideposts to consider in such cases, the court found that the first (degree of reprehensibility) was clearly established by the stage IV decubitus ulcer, dehydration and infection sustained by Decedent, as well as Defendants’ reckless indifference to the understaffing which led to such injuries.  Though the second guidepost (compensatory/punitive ratio) militated in Defendants’ favor, the court noted that the U.S. Supreme Court had previously indicated that high multipliers do not offend due process where “a particularly egregious act has resulted in only a small amount of economic damages.”  In addressing the third and final guidepost (difference between punitives and civil penalties authorized or imposed in comparable cases), the court noted that in addition to daily fines, Defendants’ nursing home license could have been suspended or revoked, causing Defendants significant financial detriment.  Accordingly, the court affirmed the judgment in all respects.

 

© Copyright 2012 Tennessee Bar Association