Court reviews whether plaintiff properly alleged his breach of contract, misrepresentation, and TN Consumer Act violation claims

JAMES WATRY v. ALLSTATE PROPERTY AND CAUSALITY INSURANCE COMPANY, AN ILLINOIS CORPORATION (Tenn. Ct. App. December 29, 2011)

Insured was injured by an automobile driven by an uninsured motorist. Insured filed a claim with Insurer seeking uninsured motorist coverage benefits and settled for an amount that was less than his actual damages. Insured then sued Insurer seeking damages for fraudulent misrepresentation, breach of contract, and violation of the Tennessee Consumer Act. Insurer filed a motion for judgment on the pleadings which the trial court granted. We affirm the trial court's judgment because Insured failed to allege sufficient facts to support any of his causes of action.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/watry_122911.pdf

Court reviews whether the city of Murfreesboro had notice of unsafe road conditions based on records of previous accidents

JENNIFER BIVINS, as next of kin and natural parent of BRANDON BIVINS, deceased v. CITY OF MURFREESBORO (Tenn. Ct. App. December 29, 2011)

Plaintiff filed an action against the City of Murfreesboro pursuant to the Governmental Tort Liability Act, claiming a dangerous and unsafe roadway caused an automobile accident in which her son was killed. The trial court determined the City had no notice of an unsafe or dangerous condition, and entered judgment in favor of the City.

Upon appeal, we reversed on the issue of notice, holding that previous accidents on adjacent areas of the roadway provided sufficient notice to the City of a potentially dangerous condition. Upon remand, the trial court entered judgment in favor of Plaintiff, and assessed 60% fault to the City. We vacate and remand for further findings consistent with Rule 52 of the Tennessee Rules of Civil Procedure.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bivinsj_122911.pdf

Court reviews whether trial court properly excluded expert testimony based on the locality rule in a medical malpractice case

TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN (Tenn. Ct. App. December 28, 2011)

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf

Court reviews a defamation case that occurred following a dispute about parenting

GEOFFREY TODD KRASNER v. JOHN ARNOLD (Tenn. Ct. App. December 28, 2011)

This appeal involves claims of defamation. After words were exchanged in the course of a parenting dispute, the plaintiff filed this lawsuit against the defendant father of the plaintiff's girlfriend's daughter. A bench trial was held in which both parties were self-represented. The trial court held in favor of the defendant father. The plaintiff now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/krasnerg_122811.pdf

Court reviews whether a construction company can be held liable to a driver who had an accident on a road on which the company performed work

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC. (Tenn. Ct. App. December 20, 2011)

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck.

Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/leej_122011.pdf

Court reviews whether an employee's hernias were compensable injuries

ANITA BERKLEY RHODES v. CAREALL, INC. ET AL. (TWCA December 20, 2011)

An employee alleged that she sustained a right- and left-side hernia while working. Her employer denied the claim for the left-side hernia. The trial court held that both the right- and left-side hernias were compensable and awarded permanent partial disability benefits. The employer appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rhodesa_122011.pdf

TWCA reviews whether an impairment rating should be applied to the hand or limited to the index finger in a case involving a partial amputation

JAMES TERRY JOHNSON v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC. D/B/A AT&T, INC. (TWCA December 20, 2011)

An employee suffered a partial amputation of his left index finger. Compensability of the injury was not contested. At trial, the employee argued that his disability award should be apportioned to the hand. His employer contended that the award should be limited to the index finger. The trial court agreed with the employee and awarded 52% permanent partial disability to the hand. The employer appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonj_122011.pdf

TWCA reviews whether an employee who was fired had a meaningful return to work after receiving surgical treatment for an injury

MELISSA HAMLIN v. WINDSOR FORESTRY TOOLS, INC. ET AL. (TWCA December 20, 2011)

The employee injured her back at work and the injury required surgical treatment. The employee returned to work but was later terminated for violation of her employer's attendance and absenteeism policy. The trial court found the employee did not have a meaningful return to work. The trial court, however, adopted the impairment rating that the employee's evaluating physician expressed and awarded 90% permanent partial disability benefits, the maximum award permitted by Tennessee Code Annotated section 50-6-241(d).

The employer has appealed, contending that the trial court erred by adopting the evaluating physician's impairment rating, by its use of the six-times multiplier on the basis of facts not in evidence, and by finding that the employee did not have a meaningful return to work. We agree that the evidence preponderates against the trial court's findings concerning employee's impairment and the six-times multiplier. Accordingly, we modify the award.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/hamlinm_122011.pdf

Court reviews a claim for uninsured motorist benefits

REYNALDO COLLAZO ET AL. v. JOE HAAS D/B/A HAAS CONSTRUCTION ET AL. (Tenn. Ct. App. December 16, 2011)

This is an action to recover uninsured motorist benefits following a motor vehicle collision involving the plaintiff and another vehicle. The driver of the defendant vehicle left the scene and has not been identified. The owner of the vehicle was subsequently identified, but denied knowing the identity of the driver and claimed no one had permission to operate the vehicle at the time of the accident.

The named defendants in this action are the owner of the vehicle and John Doe, the unknown driver. Plaintiffs' uninsured motorist insurance carrier, Nationwide Insurance Co., is an unnamed defendant. The defendant owner has liability insurance coverage through State Farm Insurance Co.

The plaintiffs settled all claims against the defendant-owner and State Farm for $90,000, $10,000 less than the uninsured motorist limits with Nationwide. Thereafter, the plaintiffs continued to pursue their claims against Nationwide for uninsured motorist benefits, insisting the settlement with the owner of the vehicle did not bar their claims against the uninsured John Doe driver. Upon motion for summary judgment by Nationwide, the trial court found that because the owner of the vehicle had $100,000 of liability insurance, there was not an "uninsured motor vehicle." Based on this finding, the trial court summarily dismissed the plaintiffs' uninsured motorist claim against Nationwide. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/collazor_121611.pdf

Court reviews whether plaintiff was an employee or independent contractor, and an award for punitive damages

JEFFREY L. DILLON v. NICA, INC., ET AL. (Tenn. Ct. App. December 15, 2011)

After his claim for insurance benefits for an injury sustained while making a delivery was denied, plaintiff filed suit against the delivery company, the company providing the insurance coverage and its president, and the third party administrator of the insurance plan, asserting causes of action for breach of contract, violation of the Tennessee Consumer Protection Act, and conspiracy to evade the Tennessee Workers' Compensation Act. The jury found the company providing the insurance and its president liable for violation of the Consumer Protection Act and awarded compensatory and punitive damages.

On appeal, the insurance company and president contend that the trial court erred in finding that the plaintiff was an employee of delivery company rather than an independent contractor, in excluding various exhibits and testimony, in denying the president's motion for a directed verdict, and in awarding punitive damages. Because the punitive damage awarded was predicated on the violation of the Tennessee Consumer Protection Act, which does not authorize an award of punitive damages, the award of punitive damages is vacated and the case remanded for a determination of whether an award of treble damages under the Consumer Protection Act should be awarded. In all other respects, the judgment and rulings are affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dillonj_121511.pdf

TWCA reviews whether an employee had a meaningful return to work that would permit limiting his benefits following being fired for misconduct

DEWEY GIBSON, JR. v. HIDDEN MOUNTAIN RESORT, INC. (TWCA December 14, 2011)

The employee sought workers' compensation for a back injury which arose out of and in the scope of his employment with the employer. The trial court found that because the employee had a meaningful return to work and was subsequently dismissed for job misconduct, he was limited to benefits of 1.5 times the 20% anatomical impairment rating. The evidence does not preponderate against the trial court's factual findings; the judgment is, therefore, affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/gibsond_121411.pdf

TWCA reviews whether an employee's intoxication was the proximate cause of injuries he incurred at his job site

DANIEL BOYD DAVIDSON v. BUSINESS PERSONNEL SOLUTIONS (TWCA December 14, 2011)

The employee, who sustained injuries while removing tree limbs at a job site, filed a claim for workers' compensation. The employer denied benefits, contending that the injury was the result of the employee's intoxication and misconduct. While concluding that the employee was not guilty of willful misconduct, the trial court ruled that his intoxication was a proximate cause of the injuries and, therefore, denied the claim.

The employee appealed, alleging that the trial court erred by finding that he was intoxicated at the time of his injuries and that the intoxication was the proximate cause. This appeal was referred 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 trial court's finding that the employee was intoxicated and his intoxication proximately caused his injuries, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/davidsond_121411.pdf

TWCA reviews whether an employee's injury occurred during the course of his employment

ROBERT BRIGHT v. SHOUN TRUCKING COMPANY, INC. (TWCA December 7, 2011)

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, a truck driver, filed suit for benefits, alleging that he developed bilateral rotator cuff tears and carpal tunnel syndrome as a result of his job responsibilities. His employer contended that his injuries were not related to his employment. At the conclusion of the evidence, the trial court found in favor of the employee and awarded 50% permanent partial disability to the body as a whole.

The employer has appealed, contending that the evidence preponderates against the trial court's findings (1) that the injuries arose out of and in the course of employment, and (2) that five times the medical impairment was appropriate under the circumstances. Because the evidence does not preponderate against the findings of the trial judge, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brightr_120711.pdf

Court reviews whether a medical malpractice claim is time barred by the GTLA or was timely filed under the Tennessee Medical Malpractice Act

WALTON CUNNINGHAM & PHYLLIS CUNNINGHAM EX REL. PHILLIP WALTON CUNNINGHAM v. WILLIAMSON COUNTY HOSPITAL DISTRICT ET AL. (Tenn. Ct. App. December 1, 2011)

Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated section 29-20-305(b).

The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated section 29-26-121(c) (2009).

We have determined that the amendment codified at Tennessee Code Annotated section 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs' compliance with the pre-suit notification provision in Tennessee Code Annotate section 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore, were affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cunninghamw_120111.pdf

Court reviews whether the trial court properly ruled that defendant negated the element of proximate cause in an automobile accident case

TIMOTHY A. MOORE v. HUGH A. BUTLER, INDIVIDUALLY AND AS AGENT AND SERVANT OF ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND McCOY'S HEATING & AIR, INC. (Tenn. Ct. App. December 1, 2011)

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff's tractor-trailer, and then by the co-defendant's tractor-trailer. The defendant's service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff's tractor-trailer to brake quickly. This resulted in the co-defendant's tractor-trailer rear-ending the plaintiff's tractor-trailer.

The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/mooret_.pdf

TWCA reviews whether a reinjury occurred and, if so, whether it's compensable

DAVID KIRBY v. MEMPHIS JEWISH NURSING HOME (TWCA December 1, 2011)

An employee sustained a compensable injury to his shoulder. While he was recovering from surgery, he reinjured his shoulder when his dog pulled his arm while he was holding the dog by its collar. The trial court found that the reinjury was a direct and natural result of the earlier compensable injury and that the reinjury caused an increase in impairment. The employer has appealed, contending that the trial court incorrectly applied the intervening injury rule and incorrectly adopted the evaluating physician's impairment. We affirm as to the reinjury but conclude that the trial court erroneously based its award upon an incorrect impairment rating, and we modify the judgment accordingly.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kirbyd_120111.pdf

TWCA reviews whether an accidental overdose can be compensable in a workers' compensation case.

JUDY KILBURN EX REL ESTATE OF CHARLES KILBURN v. GRANITE STATE INSURANCE COMPANY ET AL. (TWCA November 30, 2011)

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 was seriously injured in the course of his employment in an automobile accident in November 2008. He suffered fractures of his neck and back and underwent a surgical fusion of his neck.

Over the course of the next year, he suffered severe pain and was eventually referred to a pain management physician, who prescribed oxycodone. He filed suit against his employer for workers' compensation benefits. He died in January of 2010 of an accidental overdose of oxycodone over 14 months after his injuries. His widow was substituted as plaintiff in his workers' compensation suit and filed a motion to amend the complaint to allege that his death was related to his work injury and that she was entitled to death benefits.

The employer opposed the motion to amend, contending the death was not compensable because it was not the "direct and natural result of a compensable injury" but rather, the result of an intervening cause, i.e., the employee's negligence in consuming an overdose of medicine. The trial court denied the motion to amend. The parties entered into a series of stipulations concerning the remaining issues in the case, and judgment was entered. The widow has appealed, contending that the trial court erred in denying her motion to amend the complaint. We agree, reverse the judgment, and remand the case to the trial court for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kilburnj_113011.pdf

Court reviews the application of an offset provision in an uninsured motorist policy

BECKY COOPER v. JASON POWERS ET AL. (Tenn. Ct. App. November 29, 2011)

At its core, this case is about the application of an offset provision in an uninsured motorist ("UM") policy to an individual's claim for damages arising out of an automobile accident in the course and scope of her employment.

The plaintiff Becky Cooper's workers' compensation claim arising out of the accident, along with another workers' compensation claim, this one for injuries sustained by the plaintiff "while getting a briefcase from her car," were settled and approved by the Chancery Court for Hamilton County. The "final order" of that court recites that the court acted upon the "joint petition of the employer, ... the insurer, ... and the employee, ...for the approval of a proposed settlement under the ...Workers' Compensation [Law]." The order does not expressly state that the plaintiff was paid any benefits for the injuries sustained in the automobile accident; but it does recite that she received all of the benefits to which she was due with respect to the two claims.

The plaintiff filed the present action against the driver and owner of the other vehicle involved in the accident and served a copy of the complaint on Pacific Employers Insurance Company, the UM carrier of the company whose automobile the plaintiff was driving at the time of the accident. The UM carrier filed a motion for partial summary judgment asserting that it is entitled to an offset corresponding to the workers' compensation benefits to which the plaintiff was entitled under the Workers' Compensation Law with respect to the automobile accident.

The trial court granted the UM carrier partial summary judgment in an order that states simply, without further elaboration, "[t]his is a final order." For several reasons, we hold that the court's order is not a final order under Tenn. R. Civ. P. 54.02. However, in the interest of the efficient administration of justice, see Tenn. R. App. P. 1, we exercise our discretion to treat this appeal as if it were before us pursuant to the provisions of Tenn. R. App. P. 9. With respect to the merits of this case, we affirm the trial court's order granting partial summary judgment and remand for further proceedings.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cooperb_112911.pdf

FRANKS dissenting:
http://www.tba2.org/tba_files/TCA/2011/cooper_DIS_112911.pdf

Court reviews whether plaintiff's misrepresentations in his application for disability benefits increased an insurance company's risk of loss

ROY L. LAWHON, v. MOUNTAIN LIFE INSURANCE COMPANY (Tenn. Ct. App. November 21, 2011)

Plaintiff made claim for credit disability insurance coverage after he became disabled, and defendant insurance company denied benefits on the grounds of misrepresentations in the application for insurance, which he had executed. The Trial Court ruled in favor of plaintiff on the grounds that misrepresentations in the application did not increase the risk of loss. On appeal, we reverse the Trial Court's Judgment because the misrepresentations contained in the application for insurance increase defendant's risk of loss under the statute.

Full opinion is available at:
http://www.tba2.org/tba_files/TCA/2011/lawhonr_112111.pdf

Court reviews whether trial court properly dismissed a medical malpractice case that was filed without a Certificate of Good Faith

PAULETTA C. CRAWFORD, ET AL. v. EUGENE KAVANAUGH, M.D. (Tenn. Ct. App. November 21, 2011)

This is a medical malpractice case in which Pauletta C. Crawford ("Wife") and James Crawford ("Husband") filed suit against Eugene Kavanaugh, M.D. ("Doctor"). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the "Crawfords") dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/crawfordp_112111.pdf

Court reviews a jury's allocation of fault and jury instructions in a case involving an injury that occurred at a construction site

BENJAMIN INDOCCIO v. M&A BUILDERS, LLC, ET AL. (Tenn. Ct. App. November 15, 2011)

This appeal arises from injuries Plaintiff sustained after falling down a staircase while working on the construction of a home. Plaintiff filed a negligence action against the general contractor and the subcontractor responsible for the construction of the custom staircase. The matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen percent at fault.

After his motion for new trial was denied, Plaintiff filed this appeal. Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor's employees used marijuana while working on the construction of the staircase, and erred by excluding evidence of misdemeanor convictions and probation violations of one of the subcontractor's employees. Plaintiff also asserts that the trial court erroneously instructed the jury regarding notice, negligence, and foreseeability.

After thoroughly reviewing the record, we find that the trial court did not abuse its discretion by excluding the evidence of alleged marijuana use or the evidence of misdemeanor convictions and probation violations. Similarly, we find that the jury instructions on notice, negligence, and foreseeability were proper. Accordingly, we affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/indocciob_111511.pdf

TWCA reviews the trial court's grant of an employee's motion to dismiss based on a prior pending suit

CEILDECK CORPORATION v. HERBERT IVEY (TWCA November 15, 2011)

This case involves a race to the courthouse after a Benefit Review Conference ("BRC"). The employee, a Dickson County resident, was allegedly injured in Davidson County during the course and scope of his employment. The employee and his employer unsuccessfully attempted to settle the employee's claim at a BRC held on October 11, 2010; an impasse was declared at 10:27:19 a.m. Employee's complaint was filed in the Chancery Court of Dickson County at 10:27 a.m. Employer's complaint was filed in the Chancery Court of Davidson County at 10:28 a.m. The employee filed a motion to dismiss the employer's Davidson County complaint based on the doctrine of prior suit pending. The trial court granted the motion, and the employer appealed. We affirm the judgment of the trial court.

Opinion is available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ceildeckcorp_111511.pdf

Court reviews a jury's determination that plaintiffs did not suffer personal injuries as a result of an explosion

CHARLES ROACH AND JOYCE ROACH V. DIXIE GAS COMPANY; BEN THOMAS WILLIAMS, JR., INDIVIDUALLY AND AS OWNER AND MANAGER OF DIXIE GAS COMPANY; SEMSTREAM, L.P.; SANTIE WHOLESALE OIL COMPANY, A DIVISION OF BLUE RHINO RELIABLE PROPANE; AND JOHN DOES 1 THROUGH 10 (Tenn. Ct. App. November 14, 2011)

This lawsuit for damages arises out of an explosion. The plaintiff customers went to the defendant propane gas facility to fill their recreational vehicle with propane. Soon after they arrived, one of the propane hoses began to leak, and propane gas vapor began to envelope the premises. After a short period of time, the propane gas tank exploded, causing devastating property damage and destroying the plaintiffs' recreational vehicle.

The plaintiffs filed this lawsuit against the defendants, alleging that they were near the explosion site when the explosion occurred, and that the explosion caused them numerous physical and psychological injuries. The defendants admitted liability and compensated the plaintiffs for their property damage. The defendants claimed, however, that the plaintiffs were not present at the explosion site when the explosion occurred and did not sustain any personal injuries caused by the explosion. After a jury trial, the jury returned a verdict in favor of the defendants, determining that the explosion did not cause any personal injuries to the plaintiffs and awarding zero damages. The plaintiffs now appeal. We affirm.

The Full Opinion may be found here:
http://www.tba2.org/tba_files/TCA/2011/roachc_111411.pdf

Court reviews whether defendant owed a legal duty to a plaintiff in a premises liability case

MARGARET A. NORFLEET v. PULTE HOMES TENNESSEE LIMITED PARTNERSHIP (Tenn. Ct. App. November 10, 2011)

While touring a model home in a new residential home development, the plaintiff fell when she failed to see a four-inch step as she walked from the foyer into the sunken living room. This premises liability action followed. The defendant constructed, owned, and managed the model home in which the plaintiff fell. Upon motion of the defendant, the trial court summarily dismissed the complaint upon two findings: that the defendant did not owe a legal duty to the plaintiff and that the plaintiff was more than fifty percent at fault. We affirm upon the finding that the plaintiff cannot establish that a duty was owed to her by the defendant.

Full opinion is available here:
http://www.tba2.org/tba_files/TCA/2011/norfleetm_111011.pdf

Courts a threat to new med mal law, TMA leader says

A Tennessee Medical Association leader this week singled out the Tennessee judiciary as a threat to the state's new medical liability law. Appearing with U.S. Rep. Marsha Blackburn, R-Tenn., at a healthcare town hall meeting this week, Dr. Keith G. Anderson -- a cardiologist and vice chairman of the Tennessee Medical Association -- said he fears Tennessee's "very liberal" and "very claims-oriented" judiciary. He singled out Tennessee Supreme Court Chief Justice Cornelia Clark, who he said "is a claims malpractice attorney." Anderson went on to say that the medical association's concern is "that there will be a case that arises that goes before the Tennessee Supreme Court that may overturn the tort reforms based on their constitutionality methodology." Instead of risking that outcome, Anderson said that an amendment to the state's Constitution or a federal law that would trump state law is needed.

The Memphis Commercial Appeal reports on the event

Court reviews the constitutionality of Tennessee's temporary disability benefits statute.

RANDSTAD NORTH AMERICA, L.P. v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. November 2, 2011)

This appeal involves the constitutionality of a statute on temporary disability benefits, T.C.A. section 50-6-238. The plaintiff employment agency refused to pay temporary disability benefits to an employee who claimed that she was disabled from an on-the-job injury.

The employee filed a request for assistance with the defendant Tennessee Department of Labor and Workforce Development pursuant to T.C.A. section 50-6-238. A workers' compensation specialist entered an order requiring the employer to pay temporary disability benefits to the employee.

The employer filed an unsuccessful administrative appeal. The employer then filed the instant petition for common law writ of certiorari alleging, inter alia, that the procedures in T.C.A. section 50-6-238 violate the employer's right to procedural due process. The trial court agreed and held the statute to be unconstitutional on its face. The State appeals. In light of this Court's recent decision in Tyson Foods v. TDOL, No. M2010-0227-COA-R3-CV, 2011 WL 4790980 (Tenn. Ct. App. Oct. 10, 2011), we reverse the decision of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randstad_110211.pdf

Court reviews a claim against an uninsured motorist carrier.

ALAN HOWARD PETERS ET AL. v. CASEY BURGESS ET AL. (Tenn. Ct. App. October 24, 2011)

Alan Howard Peters was seriously injured when his vehicle collided with logs that had rolled off a truck. He and his wife filed this personal injury action and thereafter settled their claims against the defendant tortfeasors for policy limits of $1 million. In doing so, they reserved their claim against the uninsured motorist ("UM") carrier, Cincinnati Insurance Company ("CIC").

The UM provisions in effect with CIC were set forth in an endorsement to a 2005 renewal of an umbrella policy. The UM endorsement to the original policy issued in 1999 and to the first renewal issued in 2002 expressly limited UM coverage to $1 million. A space in the 2005 renewal endorsement form that was intended for insertion of the UM policy limits was left blank, which, by default, rendered the limits of the UM endorsement equal to the $2 million liability limits of the umbrella policy. After the dismissal of the claims against the tortfeasors, CIC amended its answer to include a counterclaim asking the court to reform the policy to make the UM limits equal to the $1 million limits of the previous policies. The trial court entered an order reforming the policy. Subsequently the court entered an order dismissing the remaining claim against CIC. Mr. and Mrs. Peters appeal. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/petersa_102411.pdf

Court reviews a previous case decision in light of a United States Supreme Court decision

CLIFTON A. LAKE and CHARLEEN J. LAKE ET AL. v. THE MEMPHIS LANDSMEN, L.L.C., ET AL. (Tenn. Ct. App. October 21, 2011)

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No.W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of the United States Supreme Court's decision in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131, 179 L. Ed.2d 75 (2011).

Our conclusion, in Lake, that Appellants' claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is not disturbed by the Williamson decision because the basis of our holding involved more than preservation of the manufacturers' ability to choose under the safety regulations. Under the law of the case doctrine, and because further review would exceed the scope of the Tennessee Supreme Court's mandate, we decline to revisit our decision concerning the perimeter seating issue. Reversed and Remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lakec_102111.pdf

TWCA reviews whether an employee's injury fell within the scope of employment or whether it was a private activity

MICHAEL A. PARISH v. HIGHLAND PARK BAPTIST CHURCH ET AL. (TWCA October 18, 2011)

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 was injured when he was thrown from a horse. He alleged that the injury arose in the course and scope of his employment. His Employer contended that the Employee was engaged in a purely private activity; therefore, the injury was not compensable. The trial court denied the claim. On appeal, the Employee contends that the trial court erred by finding his injury was not related to his employment. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/parishm_101811.pdf

Court reviews whether the public duty doctrine applied in a wrongful death case

BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, and CELINE HAYES as an individual, v. LOUDON COUNTY, TENNESSEE, et al. (Tenn. Ct. App. October 14, 2011)

Joseph R. Ford and Ashley Harrison Shudan, Loudon, Tennessee, for the appellants, Barbara A. Lynch, deceased, by her sister and next of kin, Celine Hayes.

Arthur F. Knight, III., Knoxville, Tennessee, for the appellees, Loudon County, Tennessee and Bryan Blakney.

In this wrongful death action, plaintiff alleged that deceased was involved in a one car accident and the investigating officer, after her car was removed from the guardrail by the wrecker, allowed her to continue driving when he knew or should have known that she was impaired and was a danger to herself, and he violated his duties to her and shortly thereafter she had yet another one-vehicle accident which resulted in her death.

The Trial Court, responding to defendants' motion for summary judgment, found that the public duty doctrine applied and if the officer did undertake to protect deceased, she did not rely upon his undertaking. He granted defendants summary judgment. On appeal, we hold that under the public duty doctrine, plaintiff owed no specific duty to deceased, unless he undertook to assume such duty. We hold that there is disputed material evidence as to whether he assumed such duty to deceased but discontinued his aid and protection to deceased which left her in a worse position than she was before he intervened. We reverse the summary judgment and remand for further proceedings consistent with this Opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lynchb_101411.pdf

Court reviews a Wrongful Death case based upon the Public Duty Doctrine

BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, and CELINE HAYES as an individual, v. LOUDON COUNTY, TENNESSEE, et al. (Tenn. Ct. App. October 14, 2011)

In this wrongful death action, plaintiff alleged that deceased was involved in a one car accident and the investigating officer, after her car was removed from the guardrail by the wrecker, allowed her to continue driving when he knew or should have known that she was impaired and was a danger to herself, and he violated his duties to her and shortly thereafter she had yet another one-vehicle accident which resulted in her death.

The Trial Court, responding to defendants' motion for summary judgment, found that the public duty doctrine applied and if the officer did undertake to protect deceased, she did not rely upon his undertaking. He granted defendants summary judgment. On appeal, we hold that under the public duty doctrine, plaintiff owed no specific duty to deceased, unless he undertook to assume such duty. We hold that there is disputed material evidence as to whether he assumed such duty to deceased but discontinued his aid and protection to deceased which left her in a worse position than she was before he intervened. We reverse the summary judgment and remand for further proceedings consistent with this Opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lynchb_101411.pdf

Court reviews claims of lost equity in a case involving a tractor trailer collision

LEROY JACKSON, JR. v. PURDY BROTHERS TRUCKING CO., INC., ET AL. (Tenn. Ct. App. October 12, 2011)

This appeal arises from a tractor-trailer ("truck") collision involving two professional drivers, Leroy Jackson, Jr., who was driving as an owner operator for USA Trucking, and Blair B. Greene, who was employed by Purdy Brothers Trucking Company, Incorporated ("PBTCI") and Loudon County Trucking ("LCT"), both formerly doing business as Purdy Brothers Trucking ("PBT"). Mr. Jackson's truck was repossessed shortly after it was repaired, and he filed suit against Mr. Greene, PBTCI, and LCT (collectively "Trucking Company") for property damage, loss of income, lost equity in his truck, incidental expenses, and punitive damages. Trucking Company filed a motion for partial summary judgment.

The trial court granted the motion, in part, holding that Trucking Company was not liable for the lost equity in the truck but that the case could proceed on the remaining issues. Trucking Company made an offer of judgment, which was accepted by Mr. Jackson and set forth in the court's final order. Mr. Jackson appeals, contending that the court erred in granting partial summary judgment. We dismiss the appeal because Mr. Jackson accepted the offer of judgment without reserving the right to appeal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksonl_101211.pdf

Court reviews a jury verdict in a medical malpractice case.

KIMBERLY L. SMITH v. GARY E. MILLS, M.D., ET AL. (Tenn. Ct. App. October 4, 2011)

This is an appeal from a jury verdict in a medical malpractice case. The jury entered a judgment in favor of the defendants. The plaintiff has appealed. We affirm the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smithk_100411.pdf

Civil Justice Act effective today

The Tennessee Civil Justice Act of 2011 takes effect today. Legal actions for injuries, deaths and other losses that occur from today forward are subject to big changes in personal-injury and consumer-protection laws, including new caps on damage awards.

Read the full story at the Memphis Commercial Appeal.

TN Nursing Homes Get Early Christmas with New Tort "Reform"

On October 1, 2011, Tennessee's nursing homes get their first Christmas present of the year from the Republican-controlled Legislature and Governor Haslam.  That's when the state's much-less-than-stellar nursing home industry will become protected by new limits on lawsuits by those injured or killed as result of nursing home neglect.

The Tennessean accurately reports that Tennessee nursing homes rank near the bottom nationally in many key areas ranked by both the Centers for Medicare & Medicaid Services and the GAO.  Despite these rankings, and despite recent suits highlighting substandard care for nursing home patients, Republicans pushed through limits on the amount of damages patients can recover in cases of nuring home neglect.  The limits were part of Governor Haslam's "jobs-based" tort reform agenda.  It remains unclear - in fact unimagineable - how making nursing homes less accountable for patient neglect will create jobs or improve care.  But then jobs and better care for nursing home patients were not what the industry had in mind when it lobbied for the limits.  

For more information on Tennessee's nursing homes and the new reforms see The Tennessean and GAO studies.

Court reviews a dismissal based on failure to comply with the requirements of the Medical Malpractice Act

ELIZABETH CUDE v. GILBERT E. HERREN, M.D., ET AL. (Tenn. Ct. App. September 26, 2011)

The trial court dismissed Plaintiff's re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff's suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court's dismissal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cudee_092611.pdf

Court reviews a motor vehicle accident case involving a professional driver hired to perform at an exhibition

GINNY BETH KING, ET AL. v. FLOWMASTER, INC. (Tenn. Ct. App. September 27, 2011)

Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment.

We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/KingG_092711.pdf

TWCA reviews whether a claim for death benefits is barred by the prior settlement of a benefits claim

NAOMI JEWELL KELLEY v. UNION CARBIDE CORPORATION (TWCA September 8, 2011)

This case involves a claim for workers' compensation benefits by the dependent spouse of a deceased employee. The decedent was exposed to asbestos in the course of his employment and contracted asbestosis as a result. His claim for benefits was settled in 1991. He died in December 2007, and his widow filed this action seeking death benefits under the workers' compensation law. The trial court awarded benefits, and the employer has appealed, contending that the widow's claim was barred by the terms of the 1991 settlement. The widow contends that the trial court incorrectly set the rate at which benefits are to be paid. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kelleyn_090811.pdf

TWCA reviews whether employee suffered a compensable injury

SEAN L. JOHNSON v. RANDSTAD NORTH AMERICA, L.P. ET AL. (TWCA September 8, 2011)

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 suffered an episode of serious breathing difficulty after work while at home. He was transported by ambulance to a hospital where an emergency tracheotomy was performed to allow him to breathe. He alleged that this episode was caused by exposure to airborne contaminants in his workplace. His employer denied the claim.

The trial court found that the employee had sustained a compensable injury and awarded permanent total disability benefits. The employer has appealed, contending that the trial court erred by finding that employee had a compensable injury, and by finding him to be permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsons_090811.pdf

TWCA reviews whether both of employee's surgeries were caused by a work-related injury

MAXINE WATLEY v. WHIRLPOOL CORPORATION ET AL. (TWCA September 8, 2011)

In this workers' compensation case, the employee injured her lower back at work in May 2006. She received medical treatment for a short period of time and was then released by her doctor. In July 2007, she consulted a neurosurgeon for continuing lower back pain. Around the same time, she accepted a voluntary layoff from her employer, then retired. She later had two surgeries on her lower back: a discectomy in October 2007, and a fusion in April 2008.

She filed this action, alleging that the surgeries and resulting disability were caused by her employment. Her employer denied the claim. The trial court found that the October 2007 surgery was caused by her May 2006 injury, but the April 2008 surgery was not. It further found that her award of permanent disability benefits was "capped" at one and one-half times her anatomical impairment due to her voluntary retirement. Her employer has appealed, contending that the trial court erred by finding her claim was not barred by the statute of limitations, and by using an incorrect impairment rating as the basis of its award. Employee contends that the trial court erred by failing to find that she was permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/watleym_090811.pdf

TN Supreme Court reviews whether the Family Purpose Doctrine applies to a father who did not reside in the same household as his son

ARLENE R. STARR v. PAUL B. HILL, SR., ET AL. (Tenn. August 31, 2011)

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member.

Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father's permission such that he had control over its use.

The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household's express or implied permission.

The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/starra_083111.pdf

TWCA reviews employee's motion to compel medical treatment

PAUL E. KENNEDY v. LAKEWAY AUTO SALES, INC. (TWCA August 31, 2011)

When the employer refused to provide another panel of physicians following the employee's negative drug screen result, the employee filed a motion to compel medical treatment. The trial court ordered the employer to provide a panel of three doctors for pain treatment and granted the employee's request for attorney's fees. The Supreme Court referred the employer's appeal to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) (2008) and Tennessee Supreme Court Rule 51. The judgment of the trial court is affirmed and the cause is remanded for modification of the trial court's order.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kennedyp_083111.pdf

TWCA reviews an award of permanent partial disability

CHEROKEE INSURANCE COMPANY, INC. v. RALPH MCNABB (TWCA August 29, 2011)

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. Ralph McNabb ("Employee") sustained a right rotator cuff tear as the result of a motor vehicle collision while employed as a truck driver by Everhart Transportation ("Employer").

Employer was insured for workers' compensation by Cherokee Insurance Company, Inc. ("Insurer"). Employee underwent surgical repair of his right rotator cuff and was returned by Employer to a different, part-time position. Employee suffered a recurrent rotator cuff tear and thereafter retired. It is undisputed that Employee was not returned to employment at the same or greater wage than prior to his injury. Employee's treating physician and his evaluating physician both assigned him an anatomical impairment rating of 10% to the body as a whole, but with different restrictions. The trial court awarded 60% permanent partial disability ("PPD") to the body as a whole. Insurer has appealed, asserting that the award was excessive. We affirm the judgment.

Opinion available at: http://www.tba2.org/tba_files/TSC_WCP/2011/cherokeeinsur_082911.pdf

TN Supreme Court reviews conflicting impairment ratings in a workers' compensation case.

WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC (Tenn. August 25, 2011)

In June of 2008, William Mansell (the "Employee") suffered a compensable injury to his right shoulder while working for Bridgestone/Firestone North American Tire, LLC (the "Employer"). Dr. Sean Kaminsky, an orthopaedic surgeon, served as the authorized treating physician and assigned an impairment rating of 3% to the body as a whole. The Employee obtained an Independent Medical Evaluation from another orthopaedic surgeon, Dr. Robert Landsberg, who assigned a 10% impairment rating. When the Benefit Review Conference at the Department of Labor and Workforce Development ("DOL") ended in an impasse, the Employee filed suit.

The judgment of the trial court is vacated. This cause is remanded to the trial court for a hearing and determination within ninety (90) days of the date of this order of the Employee’s motion to quash the Employer’s request for a designation of a physician from the MIR registry.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/mansellw_082511.pdf

TN Supreme Court reviews an uninsured motorist policy with limits lower than the statutory amount

RANDALL D. KISER v. IAN J. WOLFE ET AL. (Tenn. August 24, 2011)

The plaintiff, an employee of the insured, was injured while driving the insured's tow truck. He filed suit against the defendant and later sought to invoke the insured's uninsured motorist policy in an amount equal to the liability coverage for bodily injury. The insurer filed a motion for partial summary judgment, seeking to limit uninsured motorist coverage to the amount listed on the first page of the policy rather than the amount otherwise fixed by statute. The trial court denied the motion, but the Court of Appeals reversed.

We affirm the judgment of the Court of Appeals, holding that the insured was entitled to a partial summary judgment. When the insured signs an application indicating the selection of uninsured motorist coverage lower than the liability limits, but neglects to initial a provision designed to confirm the selection of coverage less than the standard provided by statute, the "in writing" requirement under Tennessee Code Annotated section 56-7-1201(a)(2) (2008) has been satisfied. The cause is remanded to the trial court for the entry of partial summary judgment and such other proceedings, as may be necessary.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/kiserr_082411.pdf

LEE concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TSC/2011/kiserr_CON_082411.pdf

Court reviews whether an attorney's failure to substitute a party for the deceased plaintiff in an automobile accident case was excusable neglect

THOMAS PAUL SCOTT v. JAMES KEVIN ROBERSON (Tenn. Ct. App. August 25, 2011)

Plaintiff injured in automobile accident died while his negligence action was pending. Plaintiff's counsel filed a suggestion of death but neglected to move to substitute a party for the deceased plaintiff within 90 days, as required by Tenn. R. Civ. P. 25.01(1). Defendants filed motions for summary judgment, which led plaintiff's estate to file a motion to enlarge time within which to move to substitute pursuant to Tenn. R. Civ. P. 6.02.

The trial court determined that plaintiff's counsel's neglect in moving to substitute within 90 days was not excusable and granted defendants' motions, dismissing the action. On appeal we affirm the trial court's judgment because we cannot conclude that the trial court abused its discretion in ruling the neglect was not excusable.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/scottt_082511.pdf

Tennessee Supreme Court Reviews Whether the Trial Court Properly Increased an Employee's Disability Benefits

ALICIA D. HOWELL v. NISSAN NORTH AMERICA, INC., ET AL. (Tenn. August 11, 2011)

The issue presented in this workers' compensation case is whether the employee made a meaningful return to work. Upon being released by her physician to return to work, she resigned her employment after her employer told her that she would have to return to a production line job that, based on her work experience and personal knowledge of the work conditions and her physical abilities and limitations, she did not believe she could perform.

The trial court awarded her additional benefits, ruling that she did not have a meaningful return to work and was eligible for reconsideration of her earlier settlement for workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-241 (Supp. 2010). The Special Workers' Compensation Appeals Panel reversed.

We hold that the employee did not have a meaningful return to work following her injuries and that the evidence does not preponderate against the trial court's award of increased permanent partial disability benefits. The judgment of the Appeals Panel is reversed, and the judgment of the trial court is reinstated.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/howella_081111.pdf

Court reviews whether an agency relationship existed between a mother and her son for the purpose of enforcing an arbitration agreement

DENNIS W. BLACKMON, ET AL. v. LP PIGEON FORGE, LLC, ET AL. (Tenn. Ct. App. August 25, 2011)

This is a nursing home negligence case involving an arbitration agreement. The son of the decedent signed documents admitting his mother to the defendant nursing home. The admission documents included an arbitration agreement. After his mother's death, the son filed a lawsuit on behalf of her estate against the defendant nursing home and others connected to its administration. The defendants filed a motion to compel arbitration pursuant to the agreement signed by the son. The trial court denied the motion, finding that the son was not the decedent's agent and did not have authority to sign on her behalf. The defendants appeal. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/blackmond_082511.pdf

Court reviews whether the statute of limitations bars a plaintiff's claim for assault against security guards

HARRISON A. AZARI v. GREYHOUND BUS STATION, NASHVILLE, TENNESSEE (Tenn. Ct. App. August 25, 2011)

Plaintiff filed a complaint in 2010 against the owner of a bus line alleging security guards assaulted him while he was waiting for a bus in 2003. The defendant filed a motion to dismiss on the grounds that the statute of limitations barred the plaintiff's action. The trial court granted the motion to dismiss and the plaintiff appealed. We affirm the trial court's judgment because Tenn. Code Ann. section 28-3-104(a)(1) requires a plaintiff suing for personal injuries to file his complaint within one year of the date of the alleged assault resulting in injuries.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/azarih_082511.pdf

Court reviews whether a claim against an assisted living facility was a negligence or a medical malpractice claim.

CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL. (Tenn. Ct. App. August 23, 2011)

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.

The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.

Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.

We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.

We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf

Court reviews the denial of a firefighter's on-the-job injury benefits for his hypertension and heart disease

PAUL PITTMAN v. CITY OF MEMPHIS (Tenn. Ct. App. August 18, 2011)

Petitioner firefighter appeals denial of on-the-job injury benefits by the City of Memphis. We affirm.

Background:
This dispute involves the application of the presumption contained in Tennessee Code Annotated § 7-51-201 that hypertension and injury to the heart and/or lungs sustained by a police officer or firefighter is job-related.

Before joining the Memphis Fire Department in February 1995, Mr. Pittman underwent a preemployment physical examination that did not reveal signs of hypertension or heart disease. In 1996, he was diagnosed with hypertension and in April 1996 the City admitted Mr. Pittman into the Heart, Hypertension, Lung Program, which entitled him to benefits under the City’s On-the-Job-Injury (“OJI”) policy. He has been receiving OJI benefits for hypertension since April 25, 1996.

In July 2005, Mr. Pittman was hospitalized for chest pain afterfeeling fatigued at work. On July 15, 2005, he underwent a coronary angiography which revealed a 90 percent blockage of Mr. Pittman’s left anterior artery. Mr. Pittman was diagnosed with coronary artery disease and underwent surgery.

On July 22, 2005, Mr. Pittman filed an OJI report seeking admission into the HHL Program for heart disease. Pursuant to City policy, Mr. Pittman’s medical records were reviewed by three physicians. One of the physicians, Jesse. T. Davis, Jr., M.D. (Dr. Davis), stated that he found no causal connection between Mr. Pittman’s occupation as a firefighter and his coronary artery disease. Based on Dr. Davis’ statement, the City denied Mr. Pittman’s claim. Mr. Pittman appealed denial of his claim.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/pittmanp_081811.pdf

Court reviews whether employee's claim was barred by the statute of limitations of the GTLA

MONICA WHITMORE v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. August 15, 2011)

The trial court granted the defendant, Shelby County Government, judgment on the pleadings as to multiple causes of action brought by a former county employee. The trial court found, inter alia, the one-year statute of limitations of the Tennessee Governmental Tort Liability Act ("GTLA") barred the plaintiff's claim. Applying well-settled law, the court concluded the general saving statute does not apply to a claim non-suited and re-filed against a governmental entity under the GTLA.

Although the trial court failed to address whether a different conclusion might apply to causes of action arising under the Tennessee Human Rights Act ("THRA"), we hold the saving statute does not "save" a claim non-suited and refiled against a State entity under the THRA. The trial court therefore properly concluded the plaintiff's suit was time-barred. Because the trial court reviewed matters outside of the pleadings when deciding the defendant's motion, we grant summary judgment in favor of the defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/whitmorem_081511.pdf

Court reviews a driver's post-judgment motions in an automobile accident case

BILLIE SEAY FUBO NATIONWIDE INSURANCE v. BETTY WALSH ET AL. (Tenn. Ct. App. August 11, 2011)

On or about May 28, 2005, Billie Seay was involved in an automobile accident with a vehicle driven by the defendant Thomas E. Walsh ("the Driver"), which vehicle was owned by the defendant Betty Walsh ("the Owner"). Seay's insurance company, Nationwide Insurance Company, settled her claim and filed this subrogation action in Seay's name for the use and benefit of Nationwide against the Driver and the Owner. The Driver and the Owner filed separate pro se answers. The Owner appeared at trial, but the Driver did not appear. The trial court entered a judgment against both defendants. Two and a half years later, the Driver filed a motion to set aside the judgment. It was denied. He then filed a series of similar unsuccessful post-judgment motions. The Driver appeals from the last order denying post-judgment relief. We affirm.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/seayb_081111.pdf

TN Supreme Court clarifies the standards that apply to the locality rule for expert medical witnesses

DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS (Tenn. August 11, 2011)

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010).

Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community.

In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf

TWCA reviews the trial court's adoption of an evaluating physician's impairment rating as the basis for an award of permanent disability benefits

MICHAEL SCHWAMB v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA August 10, 2011)

In this workers' compensation case, the employee had a compensable back injury in 2008. His doctor assigned 19% permanent anatomical impairment for the injury, based upon the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

He had previously settled a claim for a compensable back injury in 1996. That injury resulted in a 15% permanent impairment according to the Fourth Edition of the Guides, then in effect.

Based upon those ratings, the treating physician for the 2008 injury apportioned 4% of the total 19% impairment to the more recent injury. An evaluating physician used the Sixth Edition to rate both injuries and opined that the impairment for the 2008 injury was 13% to the body as a whole.

The trial court adopted the evaluating physician's rating and based its award of permanent disability benefits on it. The employer has appealed, arguing that the trial court erred by adopting the evaluating physician's rating. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/schwambm_081011.pdf

Court reviews a claim against an employer for retaliatory discharge

FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (Tenn. Ct. App. August 9, 2011)

Defendant allegedly suffered an on-the-job injury to his knees over the course of several years, and Plaintiffs paid workers' compensation benefits on his behalf. However, after Defendant was videotaped building a barn, his employment was terminated and suit was filed against him for fraud. Defendant then filed a counter-complaint alleging, among other things, retaliatory discharge. The trial court granted Plaintiffs' motion for summary judgment with regard to the retaliatory discharge claim, and we affirm and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/federated_080911.pdf

TN Supreme Court Reviews a Workers' Compensation Award Based on a Rating Computed in a Settlement Agreement Rather than on a Physician's Assessment

ROBERT LAZAR v. J.W. ALUMINUM (Tenn. July 26, 2011)

An employee settled his claim for workers' compensation benefits. The settlement stated that the award of vocational disability benefits to which the parties agreed was not based on the medical impairment rating of either the treating physician or the employee's independent medical examiner.

After the employee was laid off, he sought reconsideration of his benefits pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) (2008). The chancery court declined to use the impairment rating of the treating physician or the independent medical examiner. The court further declined to base its increased award on a rating from an independent medical evaluation of the employee conducted after the settlement by a physician listed in the Medical Impairment Rating registry of the Tennessee Department of Labor. The chancery court instead awarded additional permanent partial disability benefits based on an impairment rating computed from the percentage of permanent partial disability reflected in the settlement. The employer appealed. We affirm the chancery court.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lazarr_072611.pdf

Court reviews a negligence case involving multiple continuances and a subsequent ruling against the Plaintiff based on comparative fault

FREDDIE DAVIS v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. July 29, 2011)

This is a negligence action. Plaintiff/Appellant asserts that Defendant/Appellee is liable for personal injuries he allegedly sustained when he fell while walking down the steps at the Shelby County courthouse. Due to Appellant's incarceration, the trial court granted three continuances; however, Appellant's request for a fourth continuance was denied.

Following a hearing, the trial court found that Appellant had failed to meet his burden to show negligence on the part of the Appellee, and further concluded that, if there was negligence in the case, Appellant was at least fifty percent at fault so as to bar recovery. Appellant appeals both the denial of his fourth motion for a continuance and the trial court's ruling in favor of Appellee. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/davisf_072911.pdf

Court reviews a wrongful death case involving a claim for negligent infliction of emotional distress

JERRY GARRISON, et al., v. ANDY E. BICKFORD, et al. (Tenn. Ct. App. July 29, 2011)

Plaintiffs brought this action for the wrongful death of their son, and also for their damages arising from "negligent infliction of emotional distress." State Farm Mutual Insurance Company filed a Motion for Partial Summary Judgment on the grounds that its policy afforded no coverage for a negligent infliction of emotional distress. The Trial Court overruled the Motion but proposed a Rule 9 appeal, which this Court granted. We reverse the Trial Court on this issue and grant the summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/garrisonj_072911.pdf

Court Reviews Whether a Drainage Grate Created a Dangerous Condition on a Highway

BETH L. WINELAND v. CITY OF CLEVELAND, TENNESSEE ET AL. (Tenn. Ct. App. July 28, 2011)

Beth L. Wineland, the sole plaintiff, sustained serious injuries when the front wheel of her bicycle fell into the open slots of a metal drainage grate ("the subject grate" or "the old style grate") situated near a curb of State Highway 60. The slots on the subject grate run parallel with the direction of traffic. The subject grate is inside the municipal boundaries of the City of Cleveland. The plaintiff made a claim against the State of Tennessee in the Claims Commission and filed this action against the City of Cleveland in the trial court. The claim against the State was consolidated with this action for trial. The plaintiff alleges that the old style grate constitutes a dangerous condition on the highway and that both the City of Cleveland and the State were negligent in maintaining the highway. The trial court determined that neither defendant had a duty to change the grate and dismissed the case. The plaintiff appeals only as to the State. We reverse the judgment and remand for a determination of damages.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/winelandb_072811.pdf

TWCA Reviews Whether Employee is Entitled to Partial or Total Temporary Benefits

JAMES E. STEM v. THOMPSON SERVICES, INC. ET AL. (TWCA July 26, 2011)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(3)(3) (2008) for a hearing and report of findings of fact and conclusions of law.

The appeal involves a dispute regarding the type and amount of temporary benefits an employee working two jobs is entitled to following an injury at one of the employee's jobs. After sustaining a work-related injury that required the employee to discontinue one but not both of his jobs, the employee filed suit in the Circuit Court for Rutherford County.

After the trial court awarded temporary total disability benefits, the employer appealed and asserted that the employee was not entitled to temporary total disability benefits because he continued to work at his second job. We conclude that the employee is entitled to temporary partial, rather than temporary total, disability benefits and remand the case to the trial court to determine the amount of these benefits.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/stemj_072611.pdf

Court Reviews an Employee's Impairment Rating Based on His County-Employer's Workers' Compensation Plan

WILLIE J. HIGH v. SUMNER COUNTY, TENNESSEE (Tenn. Ct. App. July 25, 2011)

An employee of Sumner County was injured on the job and sought disability benefits pursuant to the Sumner County compensation plan. The employee's physicians initially gave him an anatomical impairment rating of 20%, but later determined that the employee was totally disabled and could not work. The County treated the employee's disability as a permanent partial disability and offered the employee a lower settlement than if the employee's disability were treated as a total permanent disability. The employee appealed the initial offer to the administrative review board, which upheld the initial offer of settlement.

The employee petitioned the chancery court for a writ of certiorari and asked the court to review the administrative decision and rule that it was arbitrary and capricious. The chancery court found the review board should have considered whether the employee was totally disabled based on the evidence in the record and remanded the case back to the review board for this purpose. The County appealed, and we affirm the trial court's decision. The plain language of the county plan does not support the administrative decision not to consider the employee's total disability in determining the compensation he is entitled to receive.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/highw_072511.pdf

TWCA Reviews an Award of Permanent Total Disability Benefits to an Employee Whose Physician Used the Medical Impairment Registry Process

COURIER PRINTING COMPANY ET AL. v. WANDA SIMS, EX REL ROBERT STEVE BLY ET AL. (TWCA July 21, 2011)

In this Workers' Compensation case, the trial court held that the employee had sustained a gradual injury to his lower back, and that he was permanently and totally disabled as a result of that injury. The employer has appealed, contending that the trial court erred by permitting the employee to use a physician who provided an impairment rating through the Medical Impairment Registry process as a medical expert on the issue of causation and by finding that the employee sustained a compensable injury. In the alternative, the employer contends that the trial court erred by awarding permanent total disability, and also in its alternative finding that the employee had proven three of the four elements set out in Tennessee Code Annotated section 50-6-242, and was thereby able to recover a permanent partial disability award in excess of six times the medical impairment. We find no error and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/courierprinting_072111.pdf

TWCA Reviews whether an employee failed to timely file a request for a benefit review conference

DARRYL J. MAYTON v. WACKENHUT SERVICES, INC. (TWCA July 19, 2011)

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 issue presented in this case is whether the employee's request for a benefit review conference was filed more than one year after the employee had knowledge that his occupational disease was caused by his employment.

The trial court ruled that the employee's request was not timely and dismissed the case. After careful review, we hold that the evidence does not preponderate against the trial court's finding that Employee had knowledge that his illness was related to his employment more than one year before the filing of his request for a benefit review conference. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/maytond_071911.pdf

TWCA Reviews whether a physician's rating failed to comply with the AMA Guidelines and whether, therefore, the employee's award was excessive

JACQUELINE MORRIS v. JACKSON CLINIC PROFESSIONAL ASSOCIATION (TWCA July 19, 2011)

In this workers' compensation action, the employee sustained a compensable injury to her shoulder. Her initial treating physician assigned a 9% impairment to the body as a whole. After additional surgery, her subsequent treating physician assigned a 6% impairment to the body as a whole. An evaluating physician assigned a 17% impairment. The trial court chose the evaluating physician's impairment, and awarded the employee 25.5% permanent partial disability ("PPD") to the body as a whole. The employer has appealed, arguing that the evaluating physician's rating did not comply with the AMA Guides and that the award therefore is excessive. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morrisj_071911.pdf

'Due care' law went into effect July 1

A new state law that will levy penalties for failure to "exercise due care" while driving a motor vehicle went into effect July 1. According to the bill's sponsor, the law also makes it easier for those injured, or the survivors of those killed, to prevail in civil lawsuits by "making it clear that the law requires people in a car to exercise proper driving restraint around people on a bicycle and pedestrians."

The Murfreesboro Post has the full story, which you can read here: 'Sorry I Didn’t See You' is no longer a legal excuse

DuPont Sued Over Imprelis

A Michigan golf course has sued DuPont over the herbicide Imprelis. The suit alleges that the herbicide kills mature trees in and around landscaping. If you have had a similar issue you believe is related to Imprelis, call The Adams Law Firm. The firm is following consumer complaints about Imprelis and the EPA's investigation of the herbicide.

TWCA reviews whether an employer's motion for a medical examination is reasonable

PEFFERY IRONS v. K & K TRUCKING, INC. ET AL. (TWCA July 14, 2011)


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 sustained an injury which resulted in a court-approved workers' compensation settlement. His authorized physician later recommended medical treatment. The employer's utilization review provider denied approval of the proposed treatment. The employer filed a motion for a medical examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) which is required if reasonable. The trial court found the employer's request to be unreasonable and denied the motion. The employer has appealed. We reverse the trial court's order and remand for entry of an order granting the motion. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/ironsj_071411.pdf

TWCA reviews whether an employer could receive reimbursement of payments made prior to the execution of a compromise & release agreement

LIBERTY MUTUAL INSURANCE CO. ET AL. v. RICHARD WARNOCK ET AL. (TWCA July 14, 2011)



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 suffered an injury which the employer denied was in the course of employment. The employee filed a request for assistance with the Tennessee Department of Labor and Workforce Development. The Department ordered the employer to pay temporary disability benefits and medical expenses for the employee's injury pursuant to Tennessee Code Annotated section 50-6-238(a)(2)(3).

Subsequently the employer, its workers' compensation carrier and the employee entered into a compromise and release agreement in Pennsylvania pursuant to which the employee was paid $130,000. The employer filed this action against the employee and the Department of Labor requesting reimbursement of payments made pursuant to the Department's order, as permitted by section 50-6-238(b). The trial court granted the Department's motion for summary judgment and dismissed the action. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/libertymutual_071411.pdf

Bryan L. Capps Voted Top Attorney for Motorcycle Personal Injury Cases Cityview Magazine 2011

Bryan L. Capps of Knoxville has been named by Cityview Magazine one of Knoxville's top attorneys representing injured motorcycle riders.  Mr. Capps was recently named  President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He has spent his entire career representing seriously injured motorcycle riders from Tennessee and around the country.

Adams Law Firm Attorney Named President-Elect of Tennessee Association for Justice

Bryan L. Capps of the Knoxville-based Adams Law Firm has been named President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He will serve his one year term along with the new TAJ President Keith Williams of Lebanon, Tennessee.  TAJ
advocates for accountability and the constitutional rights of all citizens and works to protect civil justice in the state.

Court reviews whether employee's motion for medical treatment was reasonable under the circumstances

BARBARA ANN HARVILLE v. EMERSON ELECTRIC COMPANY (TWCA July 6, 2011)


The employee sustained a compensable injury to her arm in 2001. In 2003, she entered into a settlement with her employer that preserved her right to receive reasonable and necessary medical treatment for the injury. In April 2008, the employee's authorized treating physician recommended a diagnostic test. The employer submitted the recommendation to its utilization review provider, which declined to approve the recommended test. The employee and her physician were notified of the denial in May 2008.

In June 2009, the employee filed a petition for contempt seeking to have the trial court order the recommended test. The trial court treated the petition as a motion for medical treatment pursuant to Tennessee Code Annotated section 50-6-204(b)(2) (2008). The trial court found the recommended test to be reasonably necessary for the treatment of the injury, ordered the employer to authorize it, and awarded the employee attorney's fees. The employer appealed. We affirm the judgment of the trial court. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/harvilleb_070611.pdf

Court reviews whether a school resource officer exercised reasonable care when displaying graphic pictures in a case involving emotional distress

MARLA H., individually and as next best friend to her daughter MORIAH F. H. v. KNOX COUNTY, ET AL. (Tenn. Ct. App. July 1, 2011)



This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving.

The trial court found the City of Knoxville liable for the student's emotional injuries because the school resource officer who distributed the photographs intended to evoke an emotional response. We conclude it was generally foreseeable that providing graphic accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court's finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/marlah_070111.pdf

40 Wrong Site Surgeries Per Week in the US

According to doctors, hospitals and health agencies, wrong site surgeries should never occur.  Yet an estimated 40 times per week a surgery occurs on the wrong limb, organ or other site in patients across the U.S.  Read how surgeons, nurses and hospitals are working to eliminate these errors which are the most blatant and easily avoided form of medical malpractice.

TN Supreme Court Reviews the Jury Instructions in a Strict Products Liability Case Involving Asbestos

EVELYN NYE v. BAYER CROPSCIENCE, INC., ET AL. (Tenn. June 7, 2011)



In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband's employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products' health risks.

The jury found that the seller was at fault, but that her husband's employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury.

On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products' manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings.

This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.


Opinion available at:

http://www.tba2.org/tba_files/TSC/2011/nye_correx_061511.pdf



HOLDER concurring in part and dissenting in part:

http://www.tba2.org/tba_files/TSC/2011/nyee_DIS_060711.pdf

Court reviews the denial of TennCare coverage for orthodontic braces

RACHEL LEE EX REL. REBECCA LEE v. MARK EMKES, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION (Tenn. Ct. App. June 28, 2011)



Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces.

Upon review by the Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed.

We affirm the trial court's finding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner's condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court's decision to affirm the agency's denial of orthodontic braces.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/leer_062811.pdf

Court Reviews Whether the Statute of Limitations Barred the Transfer of a GTLA Claim to the Proper Venue

JOHN HAYNES v. RUTHERFORD COUNTY ET AL. (Tenn. Ct. App. June 28, 2011)

The issue in this matter is whether Tenn. Code Ann. section 16-1-116 ("the Transfer Statute") tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction.

Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred.

We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/haynesj_062811.pdf

Court Reviews a Summary Judgment Motion in a Medical Malpractice Case Related to Treatment and Fraudulent Billing of a Patient

DEBORAH LYNN DAVIS v. JACK E. SCARIANO, JR., M.D. ET AL. (Tenn. Ct. App. June 28, 2011)

The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano."

Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf

Supreme Court gives drug companies two thumbs up

Supreme Court Sides with Pharmaceutical Industry in Two Cases (L.A. Times)

The U.S. Supreme Court gave the pharmaceutical industry a pair of victories, shielding the makers of generic drugs from most lawsuits by injured patients and declaring that drug makers have a free-speech right to buy private prescription records to boost their sales pitches to doctors.

Read the full story at the Los Angeles Times' Website

TN Supreme Court Reviews Whether a Construction-Related Injury was Negligence Subject to the Governmental Tort Liability Act

DALTON REB HUGHES ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE ET AL. (Tenn. May 24, 2011)

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed.

The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee's conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/hughesd_052411.pdf