News

Nashville Firm Plays Role in $100M Tobacco Settlement

A federal judge yesterday morning put a 90-day hold on all of the so-called Engle Progeny tobacco pending lawsuits in the Florida federal courts after being notified of a settlement agreement. Attorneys from the Nashville office of Lieff Cabraser have won several high-profile verdicts against cigarette manufacturers in recent months, including a $41 million verdict in October, the largest victory in the Engle cases. The Nashville Scene has more.

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Bills Would Open Court Meetings, Workers' Comp Data

A number of bills filed in the legislature this year propose to open more meetings and information to the public, Knoxnews reports. Among those affecting the judicial system are HB1306 by Rep. Ron Travis, R-Dayton, and Sen. Ken Yager, R-Harriman, which would require the Tennessee Supreme Court to meet in public when selecting the state’s attorney general and SB174 by Bill Ketron, R-Murfreesboro, and Rep. Susan Lynn, R-Mount Juliet, which would make public some information on businesses’ workers compensation insurance coverage. A bill from Sen. Mike Bell, R-Riceville, which would have required the state to disclose the death of any inmate in its custody within 10 days, was withdrawn after no House companion was filed. One bill, HB1033 by Rep. Martin Daniel, R-Knoxville, and Sen. Brian Kelsey, R-Germantown, moves in the other direction, allowing notaries who do not charge for their services to avoid having to keep a record of signings they certify.

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Tort & Insurance CLE Looks at Implicit Bias

The role of implicit bias in jury selection is one of a number of topics to be covered at the annual Tort and Insurance CLE set for March 5 in Nashville. Other sessions will include updates on premises and product liability law as well as insurance coverage and bad faith. Joshua Baker with the Tennessee Department of Labor Workforce Development also will address key highlights in workers’ compensation law. Learn more or register here.

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Bill Cracks Down on Uninsured Drivers After Fatal Crash

The Tennessee General Assembly has come out swinging at uninsured drivers after one of them killed an insured Memphis driver last summer, News 5 reports. Rep. William Lamberth, R-Cottontown, and Sen. Bill Ketron, R-Murfreesboro, introduced companion bills that would triple the misdemeanor fine ($100 to $300) on drivers who violate the state's financial responsibility law (proof of insurance). If passed, the legislation would also require those drivers to pay reinstatement fees on top of the fines once they secure insurance.

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Western Section Rules that Secondary Auto Policy Med Pay Does Not Afford a Set Off for Primary Policy UM

DIANA L. POWELL, ET AL. V. PENNY D. CLARK
Court: TN Court of Appeals

Attorneys:

Alan M. Sowell, Nashville, Tennessee, for the appellant, Allstate Insurance Company.

Michael D. Galligan and Susan N. Marttala, McMinnville, Tennessee, for the appellees, Diana and Ronald Powell.

Judge: ARMSTRONG

This appeal involves a limitation of liability in an insurance policy. Appellant Allstate Insurance Company seeks reduction of its uninsured motorist liability by amounts paid by Appellee insured’s automobile insurance carrier. In light of the legislative intent that offsets should be limited to monies received from legally responsible parties or entities, and the limiting language used in the Allstate policy, we conclude that the trial court correctly denied the offset in this case. Affirmed and remanded.

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ABA House Acts on Range of Issues

The ABA House of Delegates met Monday in Houston, adopting a number of resolutions, including: (1) calling for counsel to be appointed to unaccompanied minor immigrants and special training be provided to courts that hear their cases, (2) opposing stand-your-ground laws, (3) condemning foreclosure rescue fraud, (4) urging states to grant protective orders even though a victim and perpetrator have no established domestic relationship, (5) requiring a unanimous jury verdict before imposing the death penalty, (6) calling for open and transparent disclosure of execution protocols, (7) urging governments to adopt a presumption against the shackling of juveniles in court, and (8) urging law schools and bar associations to counsel young attorneys on student loan debt. The body considered but sponsors ultimately withdrew resolutions calling for federal regulation of paid tax preparers and stronger laws to protect the privacy of consumer data.

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A Covenant Not to Sue Is Not a Release, per the Eastern Section in an Action for Insurance Coverage Reversing Dismissal

JOY LITTLETON, ET AL. v. TIS INSURANCE SERVICES, INC.
Court: TN Court of Appeals

Attorneys:

Robert B. Littleton, Nashville, Tennessee, and Robert R. Kurtz, Knoxville, Tennessee, for the appellants, Joy Littleton, Grayling Littleton, and Will Allen Hildreth, as assignees of Merit Construction, Inc.

Barry L. Howard, Nashville, Tennessee, for the appellee, TIS Insurance Services, Inc.

Judge: MCCLARTY

During a prior lawsuit, a construction company – in exchange for a covenant not to execute against the company’s assets – assigned to the entity that obtained a judgment against it the company’s insurance coverage claims. The plaintiffs in the previous action thereafter assigned those rights to the current plaintiffs to allow them to step into the shoes of the construction company and bring suit against the insurance broker. The trial court entered judgment on the pleadings in favor of the insurance broker on the ground that the current plaintiffs would not be entitled to recover any compensatory damages at trial. The plaintiffs appeal. We reverse.

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Middle Section Affirms Trial Court's Finding That Summary Judgment in Performance Bond Dispute Was Premature

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. CITY OF SOUTH PITTSBURG, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Jarrod W. Stone, Nashville, Tennessee, for the appellant, Travelers Casualty and Surety Company of America.

William L. Gouger, Jr., Jasper, Tennessee, for the appellee, City of South Pittsburg, Tennessee.

Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the appellee, Bituminous Casualty Corporation.

Judge: DINKINS

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a party and moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

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Middle Section Finds That $600K Punitive Damage Award Against Timeshare Company Must be Reduced by Virtue of 2011 Damage Cap Legislation

NATHAN B. OVERTON ET AL. v. WESTGATE RESORTS, LTD., L.P. ET AL.
Court: TN Court of Appeals

Attorneys:

Gregory C. Logue and Robert L. Vance, Knoxville, Tennessee, for the appellant, Westgate Resorts, Ltd., L.P.

John O. Belcher and Curtis R. Harrington, Nashville, Tennessee, for the appellees, Nathan B. Overton and Patricia A. Overton.

Judge: FRIERSON

This case involves the propriety of an award of punitive damages in the amount of $600,000. The plaintiffs sued the defendant timeshare developer, seeking to rescind a contract for purchase of a timeshare interest. The plaintiffs alleged, inter alia, that the defendant was guilty of fraud and misrepresentation, as well as violations of the Tennessee Time-share Act and the Tennessee Consumer Protection Act. Following the hearing, the trial court ruled in favor of the plaintiffs and allowed them to rescind the contract, ordering repayment of their purchase money. The trial court found that the defendant had violated the respective statutory provisions and was guilty of fraud and misrepresentation. The trial court thus determined that an award of punitive damages was proper, and following a second hearing regarding the amount of the punitive damage award, set such award at $600,000. The defendant has appealed this award. While we affirm the determination of the trial court that $600,000 represents a reasonable award of punitive damages considering all applicable factors, we must order remittitur of that award to $500,000 in accordance with the statutory cap found in Tennessee Code Annotated § 29-39-104(a)(5).

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Middle Section Affirms Waiver of Jury Demand and Judgment for Damages but Reverses and Remands Summary Judgment Finding Vicarious Liability After Assault at Auction Company

TERRY CROWLEY v. JEWELL FRAME, ET AL.
Court: TN Court of Appeals

Attorneys:

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellants, Jewell Frame and Deborah Joy Frame.

Luke A. Evans, Murfreesboro, Tennessee, for the appellee, Terry Crowley.

Judge: MCBRAYER

This appeal arises out of a vicarious liability claim brought by a customer against the operators of an auction business for injuries inflicted by a third party. The customer filed a motion for partial summary judgment relying on the pleadings and his own affidavit. The operators did not respond to the motion or appear at the summary judgment hearing. The trial court granted summary judgment for the customer on the question of liability and held a separate hearing on the issue of damages. Following the damages hearing, the Court entered a judgment against the third party and the operators of the auction. The operators appealed. We affirm in part and reverse in part.

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Western Section Allows Extra 120 Days in Med Mal Case Despite Expiration of GTLA Statute of Limitation

ERICA WADE, ET AL. V. JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT, ET AL.
Court: TN Court of Appeals

Attorneys:

Louis P. Chiozza, Jr., Memphis, Tennessee and Steven R. Walker, Oakland, Tennessee, for the appellants, Erica Wade and Peggy Fly.

Patrick W. Rogers, Jackson, Tennessee, for the appellee, Jackson-Madison County General Hospital District.

Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the appellee, Armie Walker, M.D.

Judge: STAFFORD

The trial court granted summary judgment to the defendant medical providers on the basis that the plaintiffs’ health care liability complaint was filed after the expiration of the Governmental Tort Liability Act statute of limitations. Because we conclude that, under Tennessee Code Annotated Section 29-26-121(c), plaintiffs were entitled to a 120-day extension on the applicable statute of limitations, we reverse and remand.

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Lack of Notice Dooms Second Med Mal Filing, per Divided Supreme Court

The Tennessee Supreme Court dismissed a med mal suit against six Knoxville medical providers because they were not provided with at least 60 days’ pre-suit notice of the action, as required under Tennessee law. The decision overturns the appellate court ruling that the plaintiffs did not need to provide the notice after reviving a suit they initially had provided notice for but ultimately dismissed. The high court disagreed, saying notice must be given each time a complaint is to be filed. In dissenting, Justice Gary Wade argued the initial notice should suffice and that the case should be decided on the merits rather than procedural ground.

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WADE Dissenting

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Bill Clinton to Speak in Nashville This Summer

Former President Bill Clinton will be in Nashville in June to speak at a conference for health insurance professionals, the Tennessean reports. Nashville politicos are questioning whether he will also use the trip to offer a hand to Nashville mayoral candidate Jeremy Kane, a friend of Clinton’s who will be entering the homestretch of his race.

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Court Dismisses Med Mal Suit for Lack of Notice

The Tennessee Supreme Court has dismissed a health care liability lawsuit against six Knoxville medical providers because they were not provided with at least 60 days’ pre-suit notice of the action, as required under Tennessee law. The decision overturns the appellate court ruling that the plaintiffs did not need to provide the notice after reviving a suit they initially had provided notice for but ultimately dismissed. The high court disagreed, saying notice must be given each time a complaint is to be filed. In a dissenting opinion, Justice Gary Wade argued the initial notice should suffice and that the case should be decided on the merits rather than procedural grounds. Read more from the court.

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Tullahoma City Attorney Stepping Down

After six years as Tullahoma city attorney, Randall Morrison has decided to step down and refocus his attention on building his private law practice. He recently added William Lockhart as a new partner to his firm and will be changing the firm’s name to Morrison & Lockhart, Tullahoma News reports. Morrison will continue to handle divorce and child custody cases but with the addition of Lockhart, the firm’s focus will expand to include criminal law, workers' compensation cases and personal injury cases.

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Court Clarifies Application of Statutes of Limitations

The Tennessee Supreme Court ruled today that a trial court must consider both the legal basis of a claim and the injuries for which damages are sought when determining which statute of limitations applies to a lawsuit. In the case decided today, a landowner seeking to sell property sued for breach of contract. The defendant countered that the suit was filed after the statute of limitations had run and the lower courts agreed. The appeal to the Supreme Court sought to determine which of two statutes of limitations should have been applied: a three-year period for injury to real property or a six-year period for contract action. Applying the test it articulated, the court determined that the suit should be considered a contract action and therefore was allowed because it was filed within the six-year time frame. The AOC has more.

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State Seeking Workers’ Comp Judge

The State of Tennessee Division of Workers’ Compensation is accepting applications for the position of Workers’ Compensation Judge through Feb. 1. Candidates must have a valid, active Tennessee law license, be at least 30 years old, and have at least five years experience in Tennessee workers’ compensation matters. Interested individuals should complete an application and send all required attachments to Jeff Francis by email at b.jeff.francis@tn.gov, by fax to (615) 253-8539 or by mail to Tennessee Division of Workers’ Compensation, 220 French Landing Dr., Nashville, TN 37243. Questions should be directed to Abbie Hudgens.

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New for 2015: Another in a Recent Spate of Memorandum Opinions for the Intermediate Appellate Courts

CEDRIC JONES, SR. v. STATE FARM FIRE & CASUALTY
Court: TN Court of Appeals

Attorneys:

Cedric Jones, Sr., Whiteville, Tennessee, Pro Se.

Parks T. Chastain and Megan A. Carrick, Nashville, Tennessee, for the appellee, State Farm Fire & Casualty.

Judge: DINKINS

Suit for breach of contract to recover on a homeowners policy for losses sustained when policyholder’s home was allegedly burglarized and was allegedly damaged as a result of a storm. Upon defendant’s motion, the trial court granted summary judgment, holding that the insurance company defendant had demonstrated that policyholder could not meet his burden of proof as to any of his claims. After a thorough review of the record, we discern no error and affirm the judgment of the trial court.

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Middle Section Reverses Med Mal Dismissal, Considering Interplay Between Certificate of Good Faith Requirements and Amended Pleadings

SUSAN SIRBAUGH v. VANDERBILT UNIVERSITY, d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER, ET AL.
Court: TN Court of Appeals

Attorneys:

Reid D. Leitner and Leighann D. Ness, Nashville, Tennessee, for the appellant, Elk Valley Home Health d/b/a Deaconess Homecare.

James E. Looper, Jr. and Heather D. Piper, Nashville, Tennessee, for the appellant Hardin Medical Center.

Joe Bednarz, Jr., and Joe Bednarz, Sr., Hendersonville, Tennessee, for the appellee, Susan Sirbaugh.

Steven E. Anderson, Sara F. Reynolds, and Sean C. Wlodarczyk, Nashville, Tennessee, for the appellees, The Vanderbilt University and Kevin Hagan, M.D.

Judge: MCCLARTY

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers. The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

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Eastern Section Reverses Detail of Summary Judgment for Business Following Injury at Hands of Third Party

JERTERRIUS MARSHAWN AKRIDGE ET AL. v. FATHOM, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

N. Mark Kinsman and J. Chad Hogue, Hixson, Tennessee, for the appellants, Fathom, Inc. and Timothy Reid.

Thomas A. Williams and James F. Exum, III, Chattanooga, Tennessee, for the appellants, 412 Market Street Trust and Beverly B. Henry, Trustee for 412 Market Street Trust.

Rodney H. Bennett, Rossville, Georgia, for the appellees, Jerterrius Marshawn Akridge; Thomas Lamar Armstrong; Demonya Marquel Battle a/k/a Demonta Battle, a minor, b/n/f and mother Yoniika Pointer; Raheem Blunt; and Juane Lontate Joseph.

Judge: FRIERSON

This is an interlocutory appeal regarding the trial court’s denial of the defendants’ motions for summary judgment. The plaintiffs filed this lawsuit following a shooting that occurred on December 24, 2011, outside Club Fathom in Chattanooga, a youth outreach ministry operated by two of the defendants. The defendants moved for summary judgment. The trial court denied their motions, and the defendants sought and were granted an interlocutory appeal. We determine that the court erred in failing to grant summary judgment to the defendants regarding the plaintiffs’ negligence claims. We therefore reverse the judgment of the trial court. We remand the case for entry of summary judgment regarding the plaintiffs’ negligence claims and for a determination regarding the remaining lease issue.

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Supreme Court Affirms Defeat of Hospital Lien Beyond Insurance Payment by Blue Cross

DIANE WEST ET AL. v. SHELBY COUNTY HEALTHCARE CORPORATION D/B/A REGIONAL MEDICAL CENTER AT MEMPHIS
Court: TN Supreme Court

Attorneys:

John I. Houseal, Jr. and Don L. Hearn, Jr., Memphis, Tennessee, for the appellant, Shelby County Healthcare Corporation, d/b/a Regional Medical Center at Memphis.

Eugene A. Laurenzi, Memphis, Tennessee, and A. Wilson Wages, Millington, Tennessee, for the appellees, Diane West, Jammie Heags-Johnson, and Charles Garland, Individually and on behalf of all other persons similarly situated.

W. Bryan Smith, Memphis, Tennessee, for the Amicus Curiae, Tennessee Association for Justice.

Judge: KOCH

This appeal involves the ability of a hospital to use a hospital lien to recover from a thirdparty tortfeasor the unadjusted cost of the medical services it provided to a patient whose injuries were caused by the third party. Three patients were injured in separate, unrelated motor vehicle accidents in Memphis, Tennessee. All of them were treated at the Regional Medical Center at Memphis, and either their insurance company or TennCare paid the hospital the full amount of the adjusted charges for their care, in accordance with their contracts with the hospital. Despite receiving these payments, the hospital declined to release the lien it had perfected under the Tennessee Hospital Lien Act, Tenn. Code Ann. §§ 29-22- 101 to -107 (2012). The patients filed suit in the Circuit Court for Shelby County seeking to quash the liens and monetary damages. In response, the hospital asserted that its refusal to release the liens was consistent with the Tennessee Hospital Lien Act and was permitted by its contracts with the patients’ insurance companies. The trial court dismissed the suit on the merits, and the patients appealed to the Court of Appeals. The intermediate appellate court reversed the trial court, determining that the hospital could not maintain its lien because each of the patients’ debts had been extinguished when the hospital accepted payment from the patients’ insurance companies for the full amount of the hospital’s bill based on the adjusted charges it had agreed to with either the patient’s insurance company or TennCare. West v. Shelby Cnty. Healthcare Corp., No. W2012-00044-COA- R3-CV, 2013 WL 500777 (Tenn. Ct. App. Feb. 11, 2013), reh’g denied (Tenn. Ct. App. Mar. 12, 2013). We granted two of the three patients’ Tenn. R. App. P. 11 applications for permission to appeal. We have determined that, except for the unpaid co-pays and deductibles which are a patient’s responsibility, neither the Tennessee Hospital Lien Act nor the hospital’s contracts with the patients’ insurance companies authorized the hospital to maintain its lien after the patients’ insurance company paid the adjusted bill. However, we have also determined that one of the patients who had not extinguished her debt to the hospital was not entitled to have the lien against her extinguished.

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States Reach $90M Settlement with T-Mobile

The attorneys general of 49 states, including Tennessee, have reached a $90 million settlement with T-Mobile USA to resolve allegations that the carrier charged customers for third-party services that were not authorized. The practice, known as “mobile cramming,” involves charges for premium text message subscription services such as horoscopes, trivia and sports scores that consumers have never heard of or requested. Consumers may call (855) 382-6403 or visit www.t-mobilerefund.com to submit a claim, get information about refund eligibility and request a free account summary. Chattanoogan.com has the story.

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Pre-suit Notice Provision Applies to Governmental Health Care Providers, per Middle Section

VALDA BOWERS BANKS ET AL. v. BORDEAUX LONG TERM CARE ET AL.
Court: TN Court of Appeals

Attorneys:

Joseph K. Dughman, Nashville, Tennessee, for the appellant, Valda Bowers Banks.

Paul Jefferson Campbell, II, Catherine Jane Dundon, and Melissa S. Roberge, Nashville, Tennessee, for the appellees, Bordeaux Long Term Care, Hospital Authority of the Metropolitan Government of Nashville, and Metropolitan Government of Nashville Davidson County.

Judge: CLEMENT

The principal issue in this appeal is whether the 2011 amendments to the Healthcare Liability Act (“HCLA”) extend the statute of limitations in Governmental Tort Liability Act (“GTLA”) cases. The trial court concluded that the 2011 amendments did not extend the statute of limitations for healthcare liability claims against governmental entities and dismissed all claims against the governmental entities as time-barred. Plaintiff appealed. After this appeal was filed, this court ruled in Harper v. Bradley Cnty., No. E2014-00107- COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014), that the 2011 amendments to the HCLA extend the GTLA’s one-year statute of limitations by 120 days when a plaintiff has complied with the pre-suit notice requirements of the HCLA, and we concur with the ruling in Harper. Because the plaintiff in this action complied with the pre-suit notice requirements of the HCLA and commenced this action against the governmental entities within the 120-day window, we have determined this action was commenced timely. Therefore, the plaintiff’s claims against the governmental entities should not have been dismissed as time-barred. Accordingly, we reverse the dismissal of these claims and remand for reinstatement of the claims and for further proceedings consistent with this opinion.

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Contractually Shortened State of Limitation Imposed by Court of Appeals in Reversing Trial Court

LLOYD L. MEYERS v. FARMERS AID ASSOCIATION OF LOUDON COUNTY, TENNESSEE
CORRECTION: Lisa Jellison Hall has been added as an attorney for the appellant
Court: TN Court of Appeals

Attorneys:

Christopher Dunn Heagerty and Lisa Jellison Hall, Knoxville, Tennessee, for the appellant, Farmers Aid Association of Loudon County, Tennessee.

A. Wayne Henry, for the appellee, Lloyd L. Meyers.

Judge: ARMSTRONG

This is an interlocutory appeal from the denial of Appellant insurer’s motion for summary judgment in an action on a homeowner’s policy that contained a contractual one-year statute of limitations. The Appellee insured filed suit eighteen months after the loss occurred. In the trial court, the Appellant insurer moved for summary judgment, arguing that the one-year statute of limitations in the Appellee insured’s policy was a bar to his action. The trial court agreed with the Appellee’s interpretation of the policy provisions and denied the motion for summary judgment. This court granted the Appellant’s application for interlocutory appeal. Following our review, we reverse the trial court’s decision and remand the case for entry of summary judgment in favor of Appellant.

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Additur of $10,000 to $3,500 is Affirmed by Western Section

AUDREY BONNER, ET AL. V. DEAN DEYO, ET AL.
Court: TN Court of Appeals

Attorneys:

Eric J. Plumley, Memphis, Tennessee, for the appellants, Dean Deyo and Kathleen Deyo.

Joseph Michael Cook, Germantown, Tennessee, for the appellees, Audrey Bonner and Floyd Bonner, Jr.

Judge: STAFFORD

This appeal results from the trial court’s suggestion of additur to a jury verdict stemming from an automobile accident. Plaintiff sued for damage to her vehicle and physical injuries sustained when she was rear-ended by one of the defendants. Plaintiff’s husband also asserted a loss of consortium claim. The plaintiffs sued both the driver of the vehicle and the vehicle’s owner, also husband and wife. As the matter of liability was stipulated, the only issues submitted to the jury was the amount of damages, if any, suffered by the plaintiffs. The jury returned a verdict awarding plaintiff $3,577.00 for her medical expenses, but declined to award the plaintiffs any damages claimed for other injuries, including any pain and suffering, loss of enjoyment of life, or loss of consortium. The trial court suggested an additur of $10,000.00 to the jury verdict. Defendants accepted the additur under protest and timely appealed to this Court. Discerning no error, we affirm.

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