Ask any politician funded by insurance companies or physicians and they will tell you that medical malpractice suits are bad. Without any empirical evidence, they will confidently tell you that malpractice suits increase healthcare costs, that they increase malpractice premiums for doctors, and discourage physicians from practicing. Though prior studies by Harvard University and others have refuted these myths - the myths remain.
A new study of dramatic medical malpractice reform in Texas once again shows that reforms do not solve the problems alleged by politicians and instead may harm patients in the long run. In fact, the new report concludes that the real "data do(es) not support claims made about benefits of reform. And the problem of negligence by physicians,other providers, and institutions is still largely ignored" in the presence of reform.
Please read this article and call your legislator. Do not assume malpractice will not happen to you. Tennessee recently passed sensible, bi-partisan reforms which ensured that frivolous malpractice cases would not be filed. The playing field is now level for negligent doctors and injured patients. Tennessee's 2011 proposed reforms seek to limit what a physician or hospital must pay you for their negligence now matter how severe the injury may be. These proposals would benefit insurers. However, anyone who is injured or disabled by malpractice beyond the arbitrary cap or limit on claims would be financially devastated and/or become a burden on taxpayers by winding up with state and government benefits such as TennCare or Medicare. The only way to protect you and your family is to ask your legislators to leave Tennessee's malpractice laws alone.
Tennessee Personal Injury Law Blog - published by Bryan L. Capps and Stephen A. Burroughs. The Law Office of Stephen A. Burroughs – proudly serving clients throughout East Tennessee.
Wednesday, December 29, 2010
Tuesday, December 28, 2010
Court Reviews the Beginning of the Statute of Limitations in an Automobile Accident Case
PATRICIA MILLS, ET AL. v. JOHN H. BOOTH, II, ET AL. (Tenn. Ct. App. December 28, 2010)
On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II ("Booth"). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding.
A complaint was filed on November 10, 2009, by Altha Turlington's daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millsp_122810.pdf
On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II ("Booth"). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding.
A complaint was filed on November 10, 2009, by Altha Turlington's daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millsp_122810.pdf
Friday, December 24, 2010
Court Reviews Whether Plaintiff, a Customer and Employee of Defendant, Can Recover Damages Outside Workers’ Compensation Law
JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL. (Tenn. Ct. App. November 24, 2010)
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
Wednesday, December 22, 2010
Court Reviews A Motion for a New Trial in a Medical Malpractice Case Involving the Death of a Pregnant Woman
MARK COOPER, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW OF LESLIE PHILLIPSEN v. THOMAS N. TABB, M.D., INDIVIDUALLY, THOMAS N. TABB, P.C., AND PERINATAL ASSOCIATES, P.C. (Tenn. Ct. App. December 22, 2010)
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
Tuesday, December 21, 2010
TWCA Reviews Whether Employee's Re-Injury was a Natural Consequence of His Prior Compensable Knee Injuries
FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (TWCA December 21, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
Monday, December 20, 2010
Court Reviews Whether an Amendment to the TCA’s Medical Malpractice Law Applies to a Case Initiated Prior to the Effective Date
PAMELA ANN BARNETT v. ELITE SPORTS MEDICINE, ET AL. (Tenn. Ct. App. December 20, 2010)
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
Friday, December 17, 2010
Court Reviews Jury’s Apportionment of Fault
ZULA GRAY v. JOE BEDNARZ, JR. (Tenn. Ct. App. December 17, 2010)
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Wednesday, December 15, 2010
Court Reviews Whether Plaintiff Satisfied his Burden of Proof in a Medical Negligence Case
ROBERT BROWN, An Incompetent, by and through next friend ANGELA ANDERSON v. STATE OF TENNESSEE (Tenn. Ct. App. December 15, 2010)
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Tuesday, December 14, 2010
Court Reviews a Case Involving an Automobile Accident between Plaintiff and a Police Officer
TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE (Tenn. Ct. App. December 14, 2010)
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Court Reviews a Wrongful Death Case, and Issues Regarding Immunity, Against the Memphis Housing Authority
CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING AUTHORITY, ET AL. (Tenn. Ct. App. December 14, 2010)
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
Wednesday, December 8, 2010
Court Reviews Whether Plaintiffs Can Recover Damages from a Police Department and the Prior Operator of a Car in an Accident in which Neither Party was Directly Involved
SANDRA NEWMAN ET AL. v. RUBYE J. JARRELL ET AL. (Tenn. Ct. App. December 8, 2010)
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
Thursday, December 2, 2010
TWCA Reviews Whether the Statute of Limitations Bars an Employee’s Complaint
JOANN DAVIS v. HARWELL ENTERPRISES (TWCA December 2, 2010)
This appeal involves the application of the statute of limitations in Tenn. Code Ann. section 50-6-203(g)(2)(B) (2008) to a suit for workers' compensation benefits.
An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred.
The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating that her injury was work-related.
The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the employee's complaint and, therefore, reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/davisj_120210.pdf
This appeal involves the application of the statute of limitations in Tenn. Code Ann. section 50-6-203(g)(2)(B) (2008) to a suit for workers' compensation benefits.
An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred.
The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating that her injury was work-related.
The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the employee's complaint and, therefore, reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/davisj_120210.pdf
Court Reviews an Intentional Assault Case
DONALD M. MERRIWEATHER v. LUTHER SMITH, JR. (Tenn. Ct. App. December 2, 2010)
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
Tuesday, November 30, 2010
Court Reviews Whether Defendant’s Failure to Respond to a Motion to Dismiss was Proper
SHEMAIN SHERILLE RILEY, ET AL. v. EDITH SWIFT (Tenn. Ct. App. November 30, 2010)
The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the Circuit Court, but failed to have the case docketed within 45 days after filing the notice of appeal, as is required by Davidson County Local Rule 20(b).
The plaintiffs filed a motion to dismiss the appeal on the ground of untimeliness and to enforce the order of the General Sessions Court. The defendant did not respond to the motion, nor did she appear for the motion hearing. The Circuit Court granted the plaintiffs' motion and made the judgment of the General Sessions Court the judgment of the Circuit Court. The defendant then retained counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it was rendered. The Circuit Court denied the motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/rileys_113010.pdf
The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the Circuit Court, but failed to have the case docketed within 45 days after filing the notice of appeal, as is required by Davidson County Local Rule 20(b).
The plaintiffs filed a motion to dismiss the appeal on the ground of untimeliness and to enforce the order of the General Sessions Court. The defendant did not respond to the motion, nor did she appear for the motion hearing. The Circuit Court granted the plaintiffs' motion and made the judgment of the General Sessions Court the judgment of the Circuit Court. The defendant then retained counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it was rendered. The Circuit Court denied the motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/rileys_113010.pdf
Monday, November 29, 2010
Court Reviews a TN Labor Department Board of Review Denial of Unemployment Compensation Benefits
TOM AGNEW v. MERITAN, ET AL. (Tenn. Ct. App. November 29, 2010)
In this matter, the plaintiff appeals the decision of the Board of Review of the Tennessee Department of Labor and Workforce Development that he is disqualified from receiving unemployment compensation benefits pursuant to Tenn. Code Ann. section 50-7-301, as a result of his failure to establish that he had covered wages not provided by an unemployment workrelief program financed by a federal agency under Tenn. Code Ann. section 50-7-207(c)(5)(G). The trial court upheld the decision of the Board of Review. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/agnewt_112910.pdf
In this matter, the plaintiff appeals the decision of the Board of Review of the Tennessee Department of Labor and Workforce Development that he is disqualified from receiving unemployment compensation benefits pursuant to Tenn. Code Ann. section 50-7-301, as a result of his failure to establish that he had covered wages not provided by an unemployment workrelief program financed by a federal agency under Tenn. Code Ann. section 50-7-207(c)(5)(G). The trial court upheld the decision of the Board of Review. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/agnewt_112910.pdf
Saturday, November 27, 2010
The Adams Law Firm Obtains Verdict for Family Accused of Arson by Allstate
In July 2005, Peter and Tracy Fagan awoke to smoke and flames in their Sevierville, Tennessee home. They called 911 and tried to contain the fire with a fire extinguisher, but the home burned to the ground. They lost everything they owned including their children's pets, clothing and toys; family photos; personal and business records; and an uninsured Corvette Stingray which was located in the basement. The Fagans determined, and always contended, that the fire smoldered and ignited after Mrs. Fagan fell asleep while smoking on the first floor of the home before she retired to bed upstairs.
After the fire, Tracy Fagan, who was an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home. Instead of paying the claim, Allstate, within 48 hours of the fire, hired a fire origin expert and a private investigator and began an investigation of the Fagan family. In 2006, Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due their finances and marital problems.
In fact, at the time of the fire, the Fagans owned approximately $1 million worth of real properties and had near perfect credit. All their mortgages were current and they had recently been approved for purchase of another rental property.
When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.
In late October 2010, after a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans. The jury found that the Fagans did not set fire to their home and awarded them the full $193,778 due under their homeowner's policy. The jury denied Allstate's counter suit against the Fagans.
The Fagans were represented by Adams Law Firm attorneys Meridith Bond and Bryan Capps. The firm is proud to add the Fagans to the long list of clients we have helped in their exhausting fight against major insurance companies.
After the fire, Tracy Fagan, who was an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home. Instead of paying the claim, Allstate, within 48 hours of the fire, hired a fire origin expert and a private investigator and began an investigation of the Fagan family. In 2006, Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due their finances and marital problems.
In fact, at the time of the fire, the Fagans owned approximately $1 million worth of real properties and had near perfect credit. All their mortgages were current and they had recently been approved for purchase of another rental property.
When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.
In late October 2010, after a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans. The jury found that the Fagans did not set fire to their home and awarded them the full $193,778 due under their homeowner's policy. The jury denied Allstate's counter suit against the Fagans.
The Fagans were represented by Adams Law Firm attorneys Meridith Bond and Bryan Capps. The firm is proud to add the Fagans to the long list of clients we have helped in their exhausting fight against major insurance companies.
Wednesday, November 24, 2010
Court Reviews Whether Plaintiff, a Customer and Employee of Defendant, Can Recover Damages Outside Workers’ Compensation Law
JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL. (Tenn. Ct. App. November 24, 2010)
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
Tuesday, November 23, 2010
Court Reviews a Jury’s Determination of Allocation of Fault in an Automobile Accident Case
LIMMIE R. WALLS v. BOBBY G. HOPKINS (Tenn. Ct. App. November 23, 2010)
This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion.
On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/wallsl_112310.pdf
This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion.
On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/wallsl_112310.pdf
Friday, November 12, 2010
Court Reviews Whether a Case was Medical Malpractice or Common Law Negligence
KATRINA MARTINS, ET AL. v. WILLIAMSON MEDICAL CENTER (Tenn. Ct. App. November 12, 2010)
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Thursday, November 4, 2010
Court reviews trial court's denial to enforce a settlement agreement in a wrongful death case.
CATHERINE M. LOVE, as next friend and natural mother of Savannah Love, a minor child and daughter of Rex Bryan Peterson, deceased, ET. AL. v. DORIS LAKINS WOODS (Tenn. Ct. App. November 4, 2010)
This case arises from the trial court's denial of Plaintiff/Appellants' motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent. During negotiations, Appellee/Defendant's attorney proposed a settlement in the amount of Appellee's insurance policy limit, which Appellee's attorney misstated to be $100,000, when, in fact, the policy limit was $50,000.
The trial court denied Appellants' motion to enforce the $100,000 settlement finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement. We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee's attorney and the insurance company and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lovec_110410.pdf
This case arises from the trial court's denial of Plaintiff/Appellants' motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent. During negotiations, Appellee/Defendant's attorney proposed a settlement in the amount of Appellee's insurance policy limit, which Appellee's attorney misstated to be $100,000, when, in fact, the policy limit was $50,000.
The trial court denied Appellants' motion to enforce the $100,000 settlement finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement. We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee's attorney and the insurance company and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lovec_110410.pdf
Monday, November 1, 2010
TWCA determines the causation of two upper body injuries in a worker's compensation case
SANDRA JANE GARDNER v. RANDSTAD NORTH AMERICA, L.P. (TWCA November 1, 2010)
Employee alleged that she injured her left arm in the course of her employment. Employer denied liability, contending employee's injuries were not causally related to or arising from her employment.
The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed.
We affirm as to the arm injury but conclude that the evidence preponderates against the trial court's finding that employee's shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/gardners_110110.pdf
Employee alleged that she injured her left arm in the course of her employment. Employer denied liability, contending employee's injuries were not causally related to or arising from her employment.
The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed.
We affirm as to the arm injury but conclude that the evidence preponderates against the trial court's finding that employee's shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/gardners_110110.pdf
Court reviews summary judgment ruling in favor of a physician on the grounds of a patient's credibility.
TERESA L. WEAVER, ET AL. v. TRAVIS K. PARDUE, M.D., ET AL. (Tenn. Ct. App. November 1, 2010)
This appeal arises out of a primary care physician's alleged negligent and tortious treatment of a longtime patient. The trial court granted summary judgment in favor of the physician, questioning the credibility of the patient's allegations and holding in part that the physician's alleged conduct could not support a cause of action for intentional infliction of emotional distress. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/weavert_110110.pdf
This appeal arises out of a primary care physician's alleged negligent and tortious treatment of a longtime patient. The trial court granted summary judgment in favor of the physician, questioning the credibility of the patient's allegations and holding in part that the physician's alleged conduct could not support a cause of action for intentional infliction of emotional distress. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/weavert_110110.pdf
Thursday, October 28, 2010
TN Supreme Court reviews whether the trial court properly dismissed a medical malpractice suit involving negligent prescription of drugs.
LOU ELLA SHERRILL ET AL. v. BOB T. SOUDER, M.D. ET AL. (Tenn. October 28, 2010)
This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.
The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf
This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.
The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf
Court reviews the dismissal of a motor vehicle-related personal injury suit based on the failure to provide prompt service of process to the Defendant.
ROBERT G. CRABTREE, JR., ET AL. v. JENNIFER L. LUND (Tenn. Ct. App. October 28, 2010)
Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County.
With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/crabtreer_102810.pdf
SWINEY concurring
http://www.tba2.org/tba_files/TCA/2010/crabtreer_CON_102810.pdf
Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County.
With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/crabtreer_102810.pdf
SWINEY concurring
http://www.tba2.org/tba_files/TCA/2010/crabtreer_CON_102810.pdf
Tennessee Supreme Court rules whether liens under the Hospital Lien Act attach to medical payment benefits paid pursuant to an insurance policy.
SHELBY COUNTY HEALTH CARE CORPORATION d/b/a REGIONAL MEDICAL CENTER v. NATIONWIDE MUTUAL INSURANCE COMPANY (Tenn. October 28, 2010)
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses.
Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt.
The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/shelbycountyhccCORR_102810.pdf
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses.
Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt.
The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/shelbycountyhccCORR_102810.pdf
Monday, October 25, 2010
Court reviews the denial of a motion for relief in a case involving a car accident.
STEPHEN BALL v. THEODORE SHOCKLEY (Tenn. Ct. App. October 25, 2010)
This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/balls_102510.pdf
This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/balls_102510.pdf
Friday, October 22, 2010
TWCA reviews compensability of injuries employees incurred while traveling from one job site to another
CALVIN D. ERVIN v. JONES BROS., INC., ET AL. (TWCA October 22, 2010)
This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/ervinc_102210.pdf
This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/ervinc_102210.pdf
Thursday, October 21, 2010
TWCA reviews findings of concurrent injuries and the burden of proof under TCA §50-6-242 in a Worker's Compensation Case
MELVIN HILL v. WHIRLPOOL CORPORATION (TWCA October 21, 2010)
After a plant closure, employee sought reconsideration of a prior workers'compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1).
The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole.
On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillm_102110.pdf
After a plant closure, employee sought reconsideration of a prior workers'compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1).
The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole.
On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillm_102110.pdf
TN Supreme Court reviews whether the lower courts properly dismissed vicarious liability claims against a hospital in a medical malpractice case.
JOANN ABSHURE ET AL. v. METHODIST HEALTHCARE-MEMPHIS HOSPITALS (Tenn. October 21, 2010)
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents.
After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law.
The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/abshurej_COR_102110.pdf
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents.
After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law.
The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/abshurej_COR_102110.pdf
Court reviews a ruling about insurance coverage of a van involved in an accident.
ALLSTATE INSURANCE COMPANY, v. DIANA LYNN TARRANT, et al. (Tenn. Ct. App. October 21, 2010)
Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries.
The Trial Court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds' personal policy. The Court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the insureds that reflected the van was then insured under the personal policy and not the commercial policy. The Court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/allstateins_102110.pdf
Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries.
The Trial Court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds' personal policy. The Court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the insureds that reflected the van was then insured under the personal policy and not the commercial policy. The Court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/allstateins_102110.pdf
Wednesday, October 6, 2010
Court Reviews a Slip and Fall Case
KATHY GORDON v. BY-LO MARKETS, INC., D/B/A/ BY-LO #10 (Tenn. Ct. App. October 6, 2010)
Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gordonk_100610.pdf
SUSANO, concurring:
http://www.tba2.org/tba_files/TCA/2010/gordonk_CON_100610.pdf
Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gordonk_100610.pdf
SUSANO, concurring:
http://www.tba2.org/tba_files/TCA/2010/gordonk_CON_100610.pdf
Court Reviews Whether Neutral Assaults Qualify an Employee for Benefits under TN Workers’ Compensation Laws.
ANA R. PADILLA v. TWIN CITY FIRE INSURANCE COMPANY (Tenn. October 6, 2010)
This appeal involves the workers' compensation liability of an employer for the unsolved fatal shooting of an employee on the employer's premises. The employee's surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee's Workers' Compensation Law.
Following a bench trial, the trial court denied the widow's claim for workers' compensation benefits. The court concluded that the employee's death was the result of a neutral assault and that the "street risk" doctrine was inapplicable because the employer's premises were not open to the public.
On appeal, the Special Workers' Compensation Appeals Panel declined to presume that neutral assaults on an employer's premises were compensable and affirmed the trial court's judgment. We granted the surviving spouse's petition for full court review. Like the Special Workers' Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer's premises. Accordingly, we affirm the judgment of the Special Workers' Compensation Appeals Panel and the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/padillaa_100610.pdf
WADE dissenting opinion:
http://www.tba2.org/tba_files/TSC/2010/padillaa_DIS_100610.pdf
This appeal involves the workers' compensation liability of an employer for the unsolved fatal shooting of an employee on the employer's premises. The employee's surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee's Workers' Compensation Law.
Following a bench trial, the trial court denied the widow's claim for workers' compensation benefits. The court concluded that the employee's death was the result of a neutral assault and that the "street risk" doctrine was inapplicable because the employer's premises were not open to the public.
On appeal, the Special Workers' Compensation Appeals Panel declined to presume that neutral assaults on an employer's premises were compensable and affirmed the trial court's judgment. We granted the surviving spouse's petition for full court review. Like the Special Workers' Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer's premises. Accordingly, we affirm the judgment of the Special Workers' Compensation Appeals Panel and the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/padillaa_100610.pdf
WADE dissenting opinion:
http://www.tba2.org/tba_files/TSC/2010/padillaa_DIS_100610.pdf
Monday, October 4, 2010
Court reviews whether state or federal law protects hospital records from disclosure.
JOHN P. KONVALINKA v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY (Tenn. Ct. App. October 4, 2010)
This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law.
On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/konvalinkaj.pdf
This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law.
On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/konvalinkaj.pdf
Friday, October 1, 2010
Court Reviews Whether Plaintiff Established the Elements of her Medical Malpractice Claim
EDNA N. ZULUETA v. WINIFRED LASSITER, M.D., OF THE LASSITER CLINIC (Tenn. Ct. App. October 1, 2010)
Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that Plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/zuluetae_100110.pdf
Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that Plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/zuluetae_100110.pdf
Court Reviews Immunity from Liability under the Tennessee Equine Activities Act
KERRY JORDAN v. YMCA OF MIDDLE TENNESSEE, ET AL. (Tenn. Ct. App. October 1, 2010)
A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The trial court granted the motion. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/jordank_100110.pdf
A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The trial court granted the motion. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/jordank_100110.pdf
Thursday, September 30, 2010
Court reviews dismissal of a wrongful death action in an insurance liability case.
MARY F. LAWSON v. BRAD LAWSON (Tenn. Ct. App. September 30, 2010)
Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/lawsonm_093010.pdf
Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/lawsonm_093010.pdf
Court Reviews Whether Plaintiff Should be Allowed to Reopen Proof in a Motor Vehicle Accident Case
WILLIAM J. REINHART v. GEICO INSURANCE (Tenn. Ct. App. September 30, 2010)
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion.
The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/reinhartw_093010.pdf
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion.
The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/reinhartw_093010.pdf
Tuesday, September 28, 2010
TWCA Reviews Whether the Trial Court Properly Excluded an MIR Report in a Worker’s Compensation Case
STEVEN WILLIAMS v. UNITED PARCEL SERVICE ET AL. (TWCA September 28, 2010)
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn. Code Ann. section 50-6-204(d)(5) (Supp. 2009).
The trial court sustained the employee's objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg.
On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/williamss_092810.pdf
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn. Code Ann. section 50-6-204(d)(5) (Supp. 2009).
The trial court sustained the employee's objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg.
On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/williamss_092810.pdf
Friday, September 24, 2010
Court Reviews Whether Insurance Company’s Motion to Dismiss was Properly Granted in an Automobile Accident Case
SHEILA BROWN v. RICO ROLAND (Tenn. Ct. App. September 24, 2010)
The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that Plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. section 56-7-1206.
Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits.
Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming Plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and Plaintiff appealed.
We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because Plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and Plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/browns_092410.pdf
The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that Plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. section 56-7-1206.
Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits.
Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming Plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and Plaintiff appealed.
We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because Plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and Plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/browns_092410.pdf
Thursday, September 23, 2010
Court reviews various issues regarding disclosing the amount of damages in a medical malpractice case.
AMANDA ELLIOTT v. R. MICHAEL COBB (Tenn. September 23, 2010)
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for non-economic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/elliota_092310.pdf
KOCH concurring
http://www.tba2.org/tba_files/TSC/2010/elliota_CON_092310.pdf
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for non-economic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/elliota_092310.pdf
KOCH concurring
http://www.tba2.org/tba_files/TSC/2010/elliota_CON_092310.pdf
TWCA Reviews the Apportionment of an Award for Permanent Partial Disability
SCHERING PLOUGH HEALTHCARE PRODUCTS, INC. v. JEROME D. PLUMLEY (TWCA September 23, 2010)
Employee was injured when a forklift ran over his foot. This injury also implicated Employee's ankle and lower leg. The issues presented to the trial court were the extent of permanent partial disability benefits and whether the award should be apportioned to the foot or to the leg. The trial court found that the award should be apportioned to the leg and awarded 9% permanent partial disability to the leg.
Employee has appealed, contending that the award should have been apportioned to the foot and thus not be subject to the "cap" contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008). We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/scheringplough_092310.pdf
Employee was injured when a forklift ran over his foot. This injury also implicated Employee's ankle and lower leg. The issues presented to the trial court were the extent of permanent partial disability benefits and whether the award should be apportioned to the foot or to the leg. The trial court found that the award should be apportioned to the leg and awarded 9% permanent partial disability to the leg.
Employee has appealed, contending that the award should have been apportioned to the foot and thus not be subject to the "cap" contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008). We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/scheringplough_092310.pdf
TWCA Reviews whether Trial Court Properly Found Permament Total Injury of an Employee’s Previous Injury
LINDA PRINCINSKY v. PREMIER MANUFACTURING SUPPORT PREMIER MANUFACTURING SUPPORT SERVICES ET AL. (TWCA September 23, 2010)
In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).
In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.
The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf
In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).
In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.
The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf
Wednesday, September 22, 2010
Court Reviews Insurance Coverage in a Case Involving an Uninsured Motorist
FLOYD L. FLETCHER, ET AL. v. ASHLEY R. WHITE, ET AL. (Tenn. Ct. App. September 22, 2010)
Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf
Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf
Tuesday, September 21, 2010
Court Reviews Liability and a Directed Verdict Ruling in a Property Insurance Case
ENGLISH MOUNTAIN RETREAT, LLC, ET AL. v. SUSANNE CRUSENBERRY-GREGG, ET AL. (Tenn. Ct. App. September 21, 2010)
Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/englishmountain_092110.pdf
Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/englishmountain_092110.pdf
Monday, September 20, 2010
Court Reviews Evidence Used in an Automobile Accident Case
ROBIN R. RIPPY AND DARRELL RIPPY v. CINTAS CORPORATION SERVICES, INC., ET AL. (Tenn. Ct. App. September 20, 2010)
Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle. Defendants appeal a jury award asserting there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rippyr_092010.pdf
Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle. Defendants appeal a jury award asserting there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rippyr_092010.pdf
Friday, September 17, 2010
Supreme Court Reviews a Wrongful Death Claim in a Case Involving the Death of a Child
CANDACE MULLINS v. STATE OF TENNESSEE (Tenn. September 17, 2010)
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
Wednesday, September 15, 2010
Court Reviews Summary Judgment Ruling in an Insurance Case Involving Misrepresentation
CECILIA OWENSBY, ET AL. v. STATE FARM FIRE AND CASUALTY COMPANY, ET AL. (Tenn. Ct. App. September 15, 2010)
Cecilia and Charles Owensby had a homeowners insurance policy issued by State Farm Fire and Casualty Company ("State Farm"). After their house burned down, the Owensbys filed a claim pursuant to the policy. State Farm eventually denied the claim, asserting that Cecilia Owensby had made four material misrepresentations when applying for the insurance and that each of these misrepresentations increased State Farm's risk of loss. The plaintiffs asserted that any inaccurate information contained on the application was the fault of the insurance agent who filled out the application on Cecilia Owensby's behalf. The plaintiffs sued both State Farm and Darius Miller ("Miller"), the insurance agent. State Farm and Miller filed a motion for summary judgment, which the Trial Court granted. The plaintiffs appeal the grant of summary judgment. We modify the judgment of the Trial Court and, as modified, affirm the grant of summary judgment to the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/owensbyc_091510.pdf
Cecilia and Charles Owensby had a homeowners insurance policy issued by State Farm Fire and Casualty Company ("State Farm"). After their house burned down, the Owensbys filed a claim pursuant to the policy. State Farm eventually denied the claim, asserting that Cecilia Owensby had made four material misrepresentations when applying for the insurance and that each of these misrepresentations increased State Farm's risk of loss. The plaintiffs asserted that any inaccurate information contained on the application was the fault of the insurance agent who filled out the application on Cecilia Owensby's behalf. The plaintiffs sued both State Farm and Darius Miller ("Miller"), the insurance agent. State Farm and Miller filed a motion for summary judgment, which the Trial Court granted. The plaintiffs appeal the grant of summary judgment. We modify the judgment of the Trial Court and, as modified, affirm the grant of summary judgment to the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/owensbyc_091510.pdf
Wednesday, August 25, 2010
TWCA Determines which Employer has Liability for Employee’s Injuries
GAIL TUTEN v. JOHNSON CONTROLS, INC., ET AL. (TWCA August 25, 2010)
Employee developed carpal tunnel syndrome while employed as a factory worker by Johnson Controls, Inc. ("JCI"). After employee gave notice of her injury and received some treatment, Manufacturers Industrial Group ("MIG") bought the factory and became her employer. She had surgery on both arms and returned to work, but was then permanently laid off.
Employee brought an action against both JCI and MIG for workers' compensation benefits due to injuries sustained to her right and left hands and wrists. JCI and MIG each argued that the other should be liable for her workers' compensation benefits.
The trial court found that MIG was liable and awarded 48% permanent partial disability to both arms. MIG appealed. It contends that the trial court erred by assigning liability to it and by adopting the impairment rating of a physician chosen through the Medical Impairment Registry. MIG further argues that the award was excessive. We affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/tuteng_082510.pdf
Employee developed carpal tunnel syndrome while employed as a factory worker by Johnson Controls, Inc. ("JCI"). After employee gave notice of her injury and received some treatment, Manufacturers Industrial Group ("MIG") bought the factory and became her employer. She had surgery on both arms and returned to work, but was then permanently laid off.
Employee brought an action against both JCI and MIG for workers' compensation benefits due to injuries sustained to her right and left hands and wrists. JCI and MIG each argued that the other should be liable for her workers' compensation benefits.
The trial court found that MIG was liable and awarded 48% permanent partial disability to both arms. MIG appealed. It contends that the trial court erred by assigning liability to it and by adopting the impairment rating of a physician chosen through the Medical Impairment Registry. MIG further argues that the award was excessive. We affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/tuteng_082510.pdf
TWCA Reviews Whether Trial Court Properly Apportioned Liability in a Case Involving Permanently-Disabling Injuries
ROY T. McGAHA v. COCKE COUNTY HIGHWAY DEPARTMENT ET AL. (TWCA August 25, 2010)
In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement.
The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability.
We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf
In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement.
The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability.
We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf
TWCA Reviews Whether Employee Timely Filed His Request for Assistance
JOE LYNN HUGHES v. ROBERT BRENT d/b/a APARTMENT MAINTENANCE SPECIALISTS, ET AL. (TWCA August 25, 2010)
In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf
In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf
TWCA Reviews Whether the Trial Court Properly Found Partial Permanent Disability and Awarded Benefits
BUILDERS MUTUAL INSURANCE COMPANY v. ROBERT W. DAUGHTREY (TWCA August 25, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
The employee alleged that he sustained a compensable injury to his left arm. His employer denied the claim, contending that the injury was not caused by the employment, and also that the employee had failed to provide notice of his injury as required by the workers' compensation statute.
The trial court found that the injury was work-related, and awarded 60% permanent partial disability ("PPD") to the left arm. On appeal, the employer argues that the evidence preponderates against the trial court's findings on these issues, and that the trial court erred by failing to apply the missing witness rule as to the potential testimony of the treating physicians. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/daughtrey_082510.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
The employee alleged that he sustained a compensable injury to his left arm. His employer denied the claim, contending that the injury was not caused by the employment, and also that the employee had failed to provide notice of his injury as required by the workers' compensation statute.
The trial court found that the injury was work-related, and awarded 60% permanent partial disability ("PPD") to the left arm. On appeal, the employer argues that the evidence preponderates against the trial court's findings on these issues, and that the trial court erred by failing to apply the missing witness rule as to the potential testimony of the treating physicians. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/daughtrey_082510.pdf
Tuesday, August 24, 2010
Court Reviews a Motion to Set Aside a Judgment Approving a Settlement in a Workers’ Compensation Case
PATRICIA HENDERSON v. SAIA, INC. ET AL. (Tenn. Ct. App. August 24, 2010)
This workers' compensation appeal was initially referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3). After oral argument was conducted before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court in order to consider a request under Tennessee Rule of Civil Procedure 60.02 to set aside a judgment approving a settlement. The trial court found no basis for setting aside the settlement under Rule 60.02. Neither do we. The judgment of the trial court upholding the parties' settlement is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hendersonp_082410.pdf
This workers' compensation appeal was initially referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3). After oral argument was conducted before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court in order to consider a request under Tennessee Rule of Civil Procedure 60.02 to set aside a judgment approving a settlement. The trial court found no basis for setting aside the settlement under Rule 60.02. Neither do we. The judgment of the trial court upholding the parties' settlement is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hendersonp_082410.pdf
Monday, August 23, 2010
TWCA Reviews Whether the Trial Court had Jurisdiction to Compel Employer to Authorize a Medical Procedure
RICKY L. MAYES v. PEEBLES, INC. (TWCA August 23, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Ricky Mayes ("Employee") sustained a compensable injury to his spine. His claim against Peebles, Inc. ("Employer") was settled in accordance with the workers' compensation statute. His authorized treating physician subsequently recommended a surgical procedure. Employer's medical utilization review provider declined to approve the procedure.
After an initial administrative appeal was denied, Employee filed a motion in the trial court, seeking to compel Employer to authorize the procedure. The trial court granted the motion, and awarded attorney's fees to Employee. On appeal, Employer argues that the trial court did not have jurisdiction, because Employee did not exhaust his administrative appeals, and that the trial court erred by awarding attorney's fees. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mayesr_082310.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Ricky Mayes ("Employee") sustained a compensable injury to his spine. His claim against Peebles, Inc. ("Employer") was settled in accordance with the workers' compensation statute. His authorized treating physician subsequently recommended a surgical procedure. Employer's medical utilization review provider declined to approve the procedure.
After an initial administrative appeal was denied, Employee filed a motion in the trial court, seeking to compel Employer to authorize the procedure. The trial court granted the motion, and awarded attorney's fees to Employee. On appeal, Employer argues that the trial court did not have jurisdiction, because Employee did not exhaust his administrative appeals, and that the trial court erred by awarding attorney's fees. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mayesr_082310.pdf
Friday, August 20, 2010
Court Reviews an Insurance Policy to Determine Whether it is Liable for Unpaid Medical Expenses Related to Patient’s Pre-Existing Condition
WELLMONT HEALTH SYSTEM v. JOHN QUINTON QUALLS, ET AL. (Tenn. Ct. App. August 20, 2010)
Plaintiff hospital filed a lawsuit against defendant patient for unpaid medical expenses. Defendant patient filed a third party complaint against defendant insurance company alleging that the insurance company was responsible for the unpaid medical expenses pursuant to a health insurance policy. After a bench trial, the trial court concluded that the insurance contract was ambiguous and construed it against the defendant insurance company. Defendant insurance company appeals.
After reviewing the record and the health insurance policy, we conclude that the policy was not ambiguous and the insurance contract specifically excluded coverage of patient's pre-existing condition. Accordingly, we reverse.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wellmont_082010.pdf
Plaintiff hospital filed a lawsuit against defendant patient for unpaid medical expenses. Defendant patient filed a third party complaint against defendant insurance company alleging that the insurance company was responsible for the unpaid medical expenses pursuant to a health insurance policy. After a bench trial, the trial court concluded that the insurance contract was ambiguous and construed it against the defendant insurance company. Defendant insurance company appeals.
After reviewing the record and the health insurance policy, we conclude that the policy was not ambiguous and the insurance contract specifically excluded coverage of patient's pre-existing condition. Accordingly, we reverse.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wellmont_082010.pdf
Wednesday, August 18, 2010
TWCA Reviews Whether Employee Gave Sufficient Notice of his Injuries in His Initial Claim
RICK BOVEE v. HOME DEPOT, USA, INC. (TWCA August 18, 2010)
In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims.
Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits.
We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf
In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims.
Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits.
We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf
TWCA Reviews Whether Treatment Ordered Post-Judgment was Related to Employee’s Work Injury
JOHN FREEMAN v. GENERAL MOTORS CORPORATION (TWCA August 18, 2010)
The trial court granted the employee's post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/freemanj_081810.pdf
The trial court granted the employee's post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/freemanj_081810.pdf
TWCA Reviews Whether Employee Met The Burden of Proof to Satisfy her Claim
BRENDA M. McGHEE v. HOLLAND GROUP OF TENNESSEE, INC. (TWCA August 18, 2010)
The Employee filed a workers' compensation claim against her Employer for back pain resulting from the aggravation and advancement of her degenerative disc disease, which she claimed had occurred from her injury while working on a brake line assembly. The trial court found that the Employee had not carried her burden of proof, and the Employee appealed.
Because the evidence does not preponderate against the findings of fact made by the trial court, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51, affirms the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgheeb_081810.pdf
The Employee filed a workers' compensation claim against her Employer for back pain resulting from the aggravation and advancement of her degenerative disc disease, which she claimed had occurred from her injury while working on a brake line assembly. The trial court found that the Employee had not carried her burden of proof, and the Employee appealed.
Because the evidence does not preponderate against the findings of fact made by the trial court, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51, affirms the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgheeb_081810.pdf
TWCA Reviews Whether an Independent Contractor is Entitled to Workers’ Compensation Benefits
JOSEPH SCOTT RICHARDSON v. JAMES BROWN CONTRACTING, INC. d/b/a JAMES BROWN TRUCKING COMPANY ET AL (TWCA August 18, 2010)
The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal.
The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/richardsonj_081810.pdf
The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal.
The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/richardsonj_081810.pdf
Tuesday, August 17, 2010
Court Reviews Whether Expert Proof is Required to Support a Medical Malpractice Claim Partially Based on Res Ipsa Loquitur
LORRAINE DEUEL, Individually and as Administratrix of the ESTATE OF CLYDE DEUEL, deceased v. THE SURGICAL CLINIC, PLLC and RICHARD J. GEER, M.D. (Tenn. Ct. App. August 17, 2010)
This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge.
The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability.
The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim.
The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/deuell_081710.pdf
This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge.
The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability.
The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim.
The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/deuell_081710.pdf
TWCA Reviews Whether Employee Met the Burden of Proof in Proving that He had Compensable Injuries
OTIS PATRICK v. SAFELITE GLASS CORPORATION, ET AL. (TWCA August 17, 2010)
The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/patricko_081710.pdf
The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/patricko_081710.pdf
TWCA Reviews Whether an Employee was a Traveling Employee for the Purposes of Death Benefits
CAROLYNE PARK-PEGRAM ET AL., v. FINDLEY & PEGRAM COMPANY, INC. (TWCA August 17, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram ("Decedent") was the President of Findley & Pegram Company, Inc. ("Employer"). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool.
The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers' compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court's decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers' compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/park-pegramc_081710.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram ("Decedent") was the President of Findley & Pegram Company, Inc. ("Employer"). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool.
The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers' compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court's decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers' compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/park-pegramc_081710.pdf
TWCA Reviews a Motion to Dismiss a Workers’ Compensation Claim
WAYNE MORAN v. FULTON BELLOWS & COMPONENTS, INC. (TWCA August 17, 2010)
Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer's motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. section 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never "filed with the commissioner" of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/moranw_0801710.pdf
Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer's motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. section 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never "filed with the commissioner" of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/moranw_0801710.pdf
Monday, August 16, 2010
TWCA Reviews an Award of Permanent Partial Disability
DONNA ISBELL v. JIMMY DEAN FOODS (TWCA August 16, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she sustained a repetitive motion injury to her chest and back. Her employer denied liability. Three doctors testified concerning the issues of causation and permanency. The trial court found that the employee had sustained a compensable injury, and awarded 16% permanent partial disability ("PPD") benefits to the body as a whole.
On appeal, the employer contends that the trial court erred by awarding any benefits. The employee contends that the award is inadequate. We agree with the employee and increase the award to 30% PPD to the body as a whole and otherwise affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/isbelld_081610.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she sustained a repetitive motion injury to her chest and back. Her employer denied liability. Three doctors testified concerning the issues of causation and permanency. The trial court found that the employee had sustained a compensable injury, and awarded 16% permanent partial disability ("PPD") benefits to the body as a whole.
On appeal, the employer contends that the trial court erred by awarding any benefits. The employee contends that the award is inadequate. We agree with the employee and increase the award to 30% PPD to the body as a whole and otherwise affirm the judgment of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/isbelld_081610.pdf
Friday, August 13, 2010
Court Reviews Whether Appellant Proved that her Expert was Familiar with the Standard of Care in a Community Similar to that of the Defendant
TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D. (Tenn. Ct. App. August 13, 2010)
This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf
KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf
This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf
KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf
Wednesday, August 11, 2010
TWCA Reviews Whether Employer was Properly Ordered to Provide Employee’s Medications
JOHN CRUMBY, JR. v. RURAL/METRO CORPORATION OF TENNESSEE (TWCA August 11, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In 2001, the trial court found that Employee's coronary artery disease had been advanced by his employment. Medical benefits were awarded in accordance with the workers' compensation law. In 2007, a dispute arose between Employee and Employer as to whether certain medications and tests were related to the work injury. Employee filed a motion to compel Employer to provide the medications under the 2001 judgment. The trial court granted the motion, and ordered Employer to provide all of the medications at issue. On appeal, we conclude that the trial court erred by requiring Employer to provide medications for Employee's diabetes. We otherwise affirm the order.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/crumbyj_081110
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In 2001, the trial court found that Employee's coronary artery disease had been advanced by his employment. Medical benefits were awarded in accordance with the workers' compensation law. In 2007, a dispute arose between Employee and Employer as to whether certain medications and tests were related to the work injury. Employee filed a motion to compel Employer to provide the medications under the 2001 judgment. The trial court granted the motion, and ordered Employer to provide all of the medications at issue. On appeal, we conclude that the trial court erred by requiring Employer to provide medications for Employee's diabetes. We otherwise affirm the order.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/crumbyj_081110
Thursday, August 5, 2010
Court Reviews Whether A Cause of Action Against an Employer Constitutes Negligence or a Workers’ Compensation Claim
MARY COLEMAN, ET AL. v. ST. THOMAS HOSPITAL (Tenn. Ct. App. August 5, 2010)
Plaintiffs filed suit against their employer, alleging common law negligence and negligent infliction of emotional distress due to their exposure to carbon monoxide in the workplace. The employer filed a motion for summary judgment, contending that Plaintiffs' tort claims were barred by Tennessee's workers' compensation law. The trial court denied the employer's motion for summary judgment, concluding that Plaintiffs' injuries did not "arise out of" their employment. The employer's application for an extraordinary appeal was granted. We reverse and remand for entry of an order granting summary judgment to the employer.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/colemanm_080510.pdf
Plaintiffs filed suit against their employer, alleging common law negligence and negligent infliction of emotional distress due to their exposure to carbon monoxide in the workplace. The employer filed a motion for summary judgment, contending that Plaintiffs' tort claims were barred by Tennessee's workers' compensation law. The trial court denied the employer's motion for summary judgment, concluding that Plaintiffs' injuries did not "arise out of" their employment. The employer's application for an extraordinary appeal was granted. We reverse and remand for entry of an order granting summary judgment to the employer.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/colemanm_080510.pdf
Friday, July 30, 2010
Sports Bar Settles Suit for Overserving Customer Leading to Fatal Crash
The Atlanta Journal-Constitution reports that The Sports Grill, a Georgia sports bar, has settled a lawsuit against it, known as a dram shop action, for $1 million. AJC repots that Cuneyt Erturk, was driving home on October 25, 2008 when he was struck and killed by a car driven by William Paul Davis. The lawsuit filed on behalf of Mr. Erturk's widow claimed that Sports Grill staff members overserved Davis knowing he would drive home. State Court Judge Toby Prodgers in May sanctioned the bar for destroying more than four hours of videotape that might have proved Ms. Erturk's case. The Judge also found evidence that The Sports Grill destroyed tabs for two customers who were with Davis and the "spill sheet" that recorded complimentary drinks to patrons that night. The Sports Grill denied the allegations in court documents, and the parties reached a settlement on July 15, 2010.
The Adams Law Firm prosecutes dram shop cases on behalf of plaintffs like Ms. Erturk. As the Erturk case shows, early presrvation of evidence held by a bar or restaurant may be key is proving alleged liability. Please call us with any questions or concerns you may have about establishments who irresponsibly serve patrons.
The Adams Law Firm prosecutes dram shop cases on behalf of plaintffs like Ms. Erturk. As the Erturk case shows, early presrvation of evidence held by a bar or restaurant may be key is proving alleged liability. Please call us with any questions or concerns you may have about establishments who irresponsibly serve patrons.
Thursday, July 29, 2010
Healthcare Fraud - Reforms May Lead to More Whistleblowers and Lower Costs
We often hear prospective jurors say they are hesitant to find in favor of plaintiffs because it may cause a rise in the cost of goods, services, and especially insurance. While there are many arguments to the contrary, we cannot, at length, debate the issue during jury selection. If we could, we would point out that, unlike legitimate tort claims, healthcare billing fraud costs consumers billions of dollars annually. Fortunately, as Bloomberg reports, healthcare reform laws may make it easier for those aware of such fraud to report it without fear of employer retaliation.
When a worker reports such fraud, they are often referred to as a whistleblower, and the suit which may follow is referred to as a qui tam action. Qui tam is an action brought by an informer which seeks a penalty for acts such as healthcare billing fraud and provides that the informer may recover some funds for his or her efforts. The remainder of the fund goes to the state or other institutions which were affected by the fraud. Such cases deter fraud and recover millions, and sometimes billions, of dollars which go back into the system to defray costs.
When a worker reports such fraud, they are often referred to as a whistleblower, and the suit which may follow is referred to as a qui tam action. Qui tam is an action brought by an informer which seeks a penalty for acts such as healthcare billing fraud and provides that the informer may recover some funds for his or her efforts. The remainder of the fund goes to the state or other institutions which were affected by the fraud. Such cases deter fraud and recover millions, and sometimes billions, of dollars which go back into the system to defray costs.
Wednesday, July 28, 2010
Court Reviews Whether the Trial Court’s Refusing to Allow Expert Testimony was Erroneous
JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG
(CORRECTION in the majority opinion (Tenn. Ct. App. July 28, 2010))
Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_corr_072810.pdf
SUSANO, concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072810.pdf
(CORRECTION in the majority opinion (Tenn. Ct. App. July 28, 2010))
Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_corr_072810.pdf
SUSANO, concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072810.pdf
Court Reviews Whether Defendants can use Trial Testimony Transcripts in Closing Arguments
CATHY L. CHAPMAN, ET AL. v. JAMES V. LEWIS, M.D., ET AL. (Tenn. Ct. App. July 28, 2010)
On April 10, 2000, William D. Chapman, II ("the Deceased") was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel.
The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense's argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff's medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants.
Later, the trial court, acting on the plaintiff's motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court's grant of a new trial and reinstate the court's judgment in favor of the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/chapmanc_072810.pdf
On April 10, 2000, William D. Chapman, II ("the Deceased") was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel.
The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense's argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff's medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants.
Later, the trial court, acting on the plaintiff's motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court's grant of a new trial and reinstate the court's judgment in favor of the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/chapmanc_072810.pdf
TWCA Reviews Whether the Trial Court Properly Found that an Employee Sustained a Compensable Mental Injury
TRANSPORT SERVICE, LLC v. DONALD ALLEN (TWCA July 28, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
The employee alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole.
On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court's application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court's finding that the employee sustained a compensable mental injury and modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/transportservice_072810.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
The employee alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole.
On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court's application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court's finding that the employee sustained a compensable mental injury and modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/transportservice_072810.pdf
TWCA Reviews Whether an Employee Had a Meaningful Return to Work
WENDY BLAIR v. WYNDHAM VACATION OWNERSHIP, INC. (TWCA July 28, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Wendy Blair ("Employee") sustained injuries as a result of a fall which occurred in the course of her work as a sales agent for Wyndham Vacation Ownership ("Employer").
The trial court found that she suffered permanent injuries to her neck and lower back due to the fall and that she had not made a meaningful return to work. The trial court awarded Employee 78% permanent partial disability ("PPD") benefits to the body as a whole. Employer has appealed from that judgment. We conclude that the trial court erred in its finding that Employee did not have a meaningful return to work. Consequently, we modify the judgment to award 19.5% PPD to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/blairw_072810.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Wendy Blair ("Employee") sustained injuries as a result of a fall which occurred in the course of her work as a sales agent for Wyndham Vacation Ownership ("Employer").
The trial court found that she suffered permanent injuries to her neck and lower back due to the fall and that she had not made a meaningful return to work. The trial court awarded Employee 78% permanent partial disability ("PPD") benefits to the body as a whole. Employer has appealed from that judgment. We conclude that the trial court erred in its finding that Employee did not have a meaningful return to work. Consequently, we modify the judgment to award 19.5% PPD to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/blairw_072810.pdf
TWCA Reviews Whether Employee’s Condition had been Worsened by Later Employment
VICKY L. BENSON v. OLD REPUBLIC INSURANCE COMPANY, ET AL. (TWCA July 28, 2010)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Vicky Benson ("Employee") developed bilateral carpal tunnel syndrome in 2002, as a result of her work for New Gray Cemetery ("Employer"). Her claim was accepted. She had surgery on her right arm in 2004 and returned to work. After her return, she was terminated for reasons not related to her injury. She continued to receive conservative medical treatment from time to time. She found new employment in 2006. In September 2007, her treating physician recommended surgery for her left arm.
Employer denied the claim, contending that her subsequent employer was liable for the condition and its effects. The trial court ruled that Employee's condition had been worsened by her later employment, and dismissed the claim. On appeal, Employee contends that the evidence preponderates against the trial court's finding. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/bensonv_072810.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Vicky Benson ("Employee") developed bilateral carpal tunnel syndrome in 2002, as a result of her work for New Gray Cemetery ("Employer"). Her claim was accepted. She had surgery on her right arm in 2004 and returned to work. After her return, she was terminated for reasons not related to her injury. She continued to receive conservative medical treatment from time to time. She found new employment in 2006. In September 2007, her treating physician recommended surgery for her left arm.
Employer denied the claim, contending that her subsequent employer was liable for the condition and its effects. The trial court ruled that Employee's condition had been worsened by her later employment, and dismissed the claim. On appeal, Employee contends that the evidence preponderates against the trial court's finding. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/bensonv_072810.pdf
Tuesday, July 27, 2010
Court Reviews Issues Involving Physician Interviews in a Medical Malpractice Case
VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 27, 2010)
This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.
The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf
This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.
The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf
Friday, July 23, 2010
Court reviews whether expert testimony should have been admitted in a case involving a fall on Defendant's premises
JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG (Tenn. Ct. App. July 23, 2010)
Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf
SUSANO concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf
Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf
SUSANO concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf
Court reviews whether trial court properly denied a motion for a directed verdict in a medical malpractice case
TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. July 23, 2010)
This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_072310.pdf
This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_072310.pdf
Friday, July 16, 2010
Court reviews the trial court's grant of a summary judgment motion in medical malpractice case
VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 16, 2010)
This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.
The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_071610.pdf
This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.
The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_071610.pdf
Tuesday, July 13, 2010
Court reviews causation in an automobile accident case
GLENDA HAMPTON v. NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY (Tenn. Ct. App July 13, 2010)
This is a personal injury case. The Appellant/Defendant's employee backed a van into a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not had any problems with her right shoulder. The morning after the accident the Plaintiff had pain and soreness in her shoulder. She was treated by three different orthopedic surgeons and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability. However, the Defendant disputed causation. A bench trial was held and the trial court found that the accident caused the Plaintiff's shoulder injury which necessitated the shoulder surgery. Defendant appealed from the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hamptong_CORR_071510.pdf
This is a personal injury case. The Appellant/Defendant's employee backed a van into a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not had any problems with her right shoulder. The morning after the accident the Plaintiff had pain and soreness in her shoulder. She was treated by three different orthopedic surgeons and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability. However, the Defendant disputed causation. A bench trial was held and the trial court found that the accident caused the Plaintiff's shoulder injury which necessitated the shoulder surgery. Defendant appealed from the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hamptong_CORR_071510.pdf
Monday, July 12, 2010
Worker's Compensation Panel reviews whether employee's condition was compensable
RUBY E. AUSTIN v. GENLYTE THOMAS GROUP, LLC ET AL. (TWCA July 12, 2010)
Employee alleged that she sustained a compensable injury to her back. Employer referred her to a physician who opined that her condition was not work-related, and her claim was thereafter denied. After trial, the court found that Employee's condition was compensable and awarded 65% permanent partial disability to the body as a whole and temporary total disability benefits. Employer has appealed, contending that the evidence preponderates against the trial court's finding that a compensable injury occurred, or alternatively in ordering payment of temporary total disability benefits. We modify the award of temporary total disability benefits but otherwise affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/austinr_071210.pdf
Employee alleged that she sustained a compensable injury to her back. Employer referred her to a physician who opined that her condition was not work-related, and her claim was thereafter denied. After trial, the court found that Employee's condition was compensable and awarded 65% permanent partial disability to the body as a whole and temporary total disability benefits. Employer has appealed, contending that the evidence preponderates against the trial court's finding that a compensable injury occurred, or alternatively in ordering payment of temporary total disability benefits. We modify the award of temporary total disability benefits but otherwise affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/austinr_071210.pdf
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