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

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

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.

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

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

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

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

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

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