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

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

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

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

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

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

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

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

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

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

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

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