JAMES ANTONY WILSON, SR. v. EAST TENNESSEE HUMAN RESOURCE AGENCY, INC. (Tenn. Ct. App. April 29, 2011)
James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. ("ETHRA") individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson ("Callie Wilson") while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries.
After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court's finding that ETHRA's employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/wilsonj_042911.pdf
Tennessee Personal Injury Law Blog - published by Bryan L. Capps and Stephen A. Burroughs. The Law Office of Stephen A. Burroughs – proudly serving clients throughout East Tennessee.
Saturday, April 30, 2011
Wednesday, April 27, 2011
Court Reviews the Foreseeability of the Driver’s Unconsiousness in a Case Involving a Motor Vehicle Accident
TIMOTHY SCHWANDNER v. DANA S. HIGDON (Tenn. Ct. App. April 27, 2011)
The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for summary judgment, arguing that she was not liable for the plaintiff's injuries because her sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the accident the defendant had not eaten during a full day of busy activity, the plaintiff argued that it was foreseeable that the she would lose consciousness. The trial court did not agree, and it granted the defendant's motion. We affirm the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/schwandnert_042711.pdf
The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for summary judgment, arguing that she was not liable for the plaintiff's injuries because her sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the accident the defendant had not eaten during a full day of busy activity, the plaintiff argued that it was foreseeable that the she would lose consciousness. The trial court did not agree, and it granted the defendant's motion. We affirm the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/schwandnert_042711.pdf
Wednesday, April 20, 2011
Republican Sen. Mike Faulk Against TN Tort Reform Bills
Tennessee Republican Senator Mike Faulk appears to be the only voice of reason among Tennessee Republicans who are determined to fix a tort system that is not broken. He opposes Governor Haslam's tort reform bill which has been improperly touted as a jobs creations bill. Senator Faulk is absolutely correct that the current Tennessee tort system and criminal systems work and that the tort system is based on bedrock conservative priniples of personal responsibility and limited government. Please read his opinion piece and call your legislators and ask them to vote against the Governor's bill. The bill will be up for final passage by the Senate next week so time is of the essence. Ask your legislator to refuse this gift to businesses and insurance companies at the expense of all Tennesseans.
Friday, April 8, 2011
JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL. (Tenn. Ct. App. March 2, 2011)
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
Tuesday, April 5, 2011
Say NO to TN Tort Reform - The Stories of Courtney Hill and Amanda Travis
Governor Haslam's tort reform bill is proceeding through the House with little opposition. The Republican controlled legislature, backed by countless corporate interests and physicians, is pushing the bill through as fast as possible while their momentum is high. The families of Courtney Hill - a young woman and mother who died as a result of medical negligence - and Amanda Travis - a young child who died as a result of medical negligence -want you to see how they lost their loved ones. Please view these stories and contact one or more members of the House Judiciary Committee below and ask them not to vote for the Governor's unneeded bill. Please do not be complacent because you believe these things cannot happen to you or your family. If you have more questions about the bill, see former Senator Fred Thompson's testimony to the House Judiciary Committee on why Tennessee's tort system is not broken and why the Governor's bill is a gift to corporations and insurers paid for by Tennessee citizens. House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov
Tell Your Legislators - Governor's Tort Reform Bill Goes Too Far
In 12 years of practice, every injured client I ever represented shared one common trait - they never thought it would happen to them. When I then proceeded to explain to many of them how little they could expect to recover based on employer-favorable worker's compensation laws or state-mandated minimum auto insurance coverage carried by a defendant driver they were stunned.
Given that Governor Haslam's Tort Reform is on the verge of passage without much opposition, it appears that, like my clients, most Tennesseans assume they will never be injured by another's negligence. I sincerely hope that you and your family are never harmed by a speeding trucker, a drunk driver, a careless professional, an unscrupulous insurer or a greedy financial institutiuon. However, statistically, many of us will experience one or more of these unfortunate events.
If you are affected by such events, you will be stunned by the limits the Governor's bill will have placed on the options for you and your family. Just consider one component of the bill which modifies what is known as the Collateral Source Rule. Although the bill does not mention "collateral source", the changes to the rule are real and are a hidden gem for defendants and insurers alike.
The current Collateral Source Rule recognizes personal responsibility and treats all defendants in injury suits equally. If you responsibly purchased health insurance, medical payments coverage or disability coverage for you and your family and it pays you while you are injured or out of work the person who injures you and his/her insurer does not benefit from your insurance.
For example, if you pay $400 per month for health insurance - by doing so you have paid for the right not to pay retail prices for healthcare. If you are injured and undergo a $1,000 MRI and your insurer has negotiated with the MRI provider to charge you only $500, you and/or your insurer pay only $500 and the balance is written off. At trial, you are allowed to claim the $1,000 bill in full. Why? Because you paid thousands of dollars in premiums for the right to receive the $500 reduction.
Under the Governor's bill, the Collateral Source Rule would be modified or eliminated such that you can only claim the $500 paid by your insurer. The effect is the person who injured you and his/her insurer get the benefit of the health insurance coverage you bought and paid for.
In another example, assume you are injured, out of work and receive money from a disability policy which you paid for. If you lost $10,000 in wages and your disability plan paid you $7,500 while you were off, the Governor's bill would only require the person who injured you to pay you the other $2,500. Again, the person who injured you and his/her insurer save $7,500 because you paid years of premiums for the disability coverage.
In these examples, the person who injured you caused $11,000 in actual damage, but he and his insurer paid only $3,000 in damages to you because YOU paid high premiums for additional insurance coverage. Under the same bill, a person who is injured and did not buy health or disability coverage would receive the full $11,000 in damages.
Why would a conservative Governor and Republican led Legislature reward a negligent party at the expense of a responsible individual who paid premiums and planned for unforseen injury? Why would they advocate for a rule that provides more damages for an individual who did not bother to buy health or disability coverage for his/her family? The only answer is that it will decrease the amount of claims paid by Tennessee auto and other insurers.
In short, it is a gift to insurers who have been seeking this change in the Collateral Source Rule for years. It's the perfect system - insurers collect your premium dollars; pay as little as possible if you have a health or disability claim; and then if an insured driver harms you his/her insurer pays you as little as possible from that person's premiums. What a system.
The Collateral Source Rule is a major component of the Governor's "job creating" tort reform bill. I challenge you to find one individual in the Governor's administration or in the Tennessee Legislature who can explain how this gift to insurers will create a single job. I walked the halls of the Hill last month and asked numerous legislators why they would vote for such a bill. In some cases I received blank stares asking me "what is Collateral Source?" Others simply could not believe that such an offensive rule was buried in the bill they clearly had not read. Needless to say - I was stunned.
If we cannot count on a conservative Legislature and Governor not to reward insurers at the expense of working men and women who responsibly buy insurance to protect themselves - where do we turn? If you are as bothered as me by this bill - call or e-mail members of the House Judiciary Committee (listed below) and tell them. They will pass on this bill this week. Ask them if they have paid insurance premiums for themselves and their families and, if so, why in the world would they support these changes to Collateral Source. Then ask them to remove it from the bill.
Finally, listen to former Senator Fred Thompson's testimony on tort reform before the House Judiciary Committee. If you agree that the reform bill is a solution in search of a problem disguised as a jobs machine - tell the Committee how you feel.
House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov
Given that Governor Haslam's Tort Reform is on the verge of passage without much opposition, it appears that, like my clients, most Tennesseans assume they will never be injured by another's negligence. I sincerely hope that you and your family are never harmed by a speeding trucker, a drunk driver, a careless professional, an unscrupulous insurer or a greedy financial institutiuon. However, statistically, many of us will experience one or more of these unfortunate events.
If you are affected by such events, you will be stunned by the limits the Governor's bill will have placed on the options for you and your family. Just consider one component of the bill which modifies what is known as the Collateral Source Rule. Although the bill does not mention "collateral source", the changes to the rule are real and are a hidden gem for defendants and insurers alike.
The current Collateral Source Rule recognizes personal responsibility and treats all defendants in injury suits equally. If you responsibly purchased health insurance, medical payments coverage or disability coverage for you and your family and it pays you while you are injured or out of work the person who injures you and his/her insurer does not benefit from your insurance.
For example, if you pay $400 per month for health insurance - by doing so you have paid for the right not to pay retail prices for healthcare. If you are injured and undergo a $1,000 MRI and your insurer has negotiated with the MRI provider to charge you only $500, you and/or your insurer pay only $500 and the balance is written off. At trial, you are allowed to claim the $1,000 bill in full. Why? Because you paid thousands of dollars in premiums for the right to receive the $500 reduction.
Under the Governor's bill, the Collateral Source Rule would be modified or eliminated such that you can only claim the $500 paid by your insurer. The effect is the person who injured you and his/her insurer get the benefit of the health insurance coverage you bought and paid for.
In another example, assume you are injured, out of work and receive money from a disability policy which you paid for. If you lost $10,000 in wages and your disability plan paid you $7,500 while you were off, the Governor's bill would only require the person who injured you to pay you the other $2,500. Again, the person who injured you and his/her insurer save $7,500 because you paid years of premiums for the disability coverage.
In these examples, the person who injured you caused $11,000 in actual damage, but he and his insurer paid only $3,000 in damages to you because YOU paid high premiums for additional insurance coverage. Under the same bill, a person who is injured and did not buy health or disability coverage would receive the full $11,000 in damages.
Why would a conservative Governor and Republican led Legislature reward a negligent party at the expense of a responsible individual who paid premiums and planned for unforseen injury? Why would they advocate for a rule that provides more damages for an individual who did not bother to buy health or disability coverage for his/her family? The only answer is that it will decrease the amount of claims paid by Tennessee auto and other insurers.
In short, it is a gift to insurers who have been seeking this change in the Collateral Source Rule for years. It's the perfect system - insurers collect your premium dollars; pay as little as possible if you have a health or disability claim; and then if an insured driver harms you his/her insurer pays you as little as possible from that person's premiums. What a system.
The Collateral Source Rule is a major component of the Governor's "job creating" tort reform bill. I challenge you to find one individual in the Governor's administration or in the Tennessee Legislature who can explain how this gift to insurers will create a single job. I walked the halls of the Hill last month and asked numerous legislators why they would vote for such a bill. In some cases I received blank stares asking me "what is Collateral Source?" Others simply could not believe that such an offensive rule was buried in the bill they clearly had not read. Needless to say - I was stunned.
If we cannot count on a conservative Legislature and Governor not to reward insurers at the expense of working men and women who responsibly buy insurance to protect themselves - where do we turn? If you are as bothered as me by this bill - call or e-mail members of the House Judiciary Committee (listed below) and tell them. They will pass on this bill this week. Ask them if they have paid insurance premiums for themselves and their families and, if so, why in the world would they support these changes to Collateral Source. Then ask them to remove it from the bill.
Finally, listen to former Senator Fred Thompson's testimony on tort reform before the House Judiciary Committee. If you agree that the reform bill is a solution in search of a problem disguised as a jobs machine - tell the Committee how you feel.
House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov
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