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
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.
Monday, October 24, 2011
Saturday, October 22, 2011
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
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
Tuesday, October 18, 2011
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
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
Friday, October 14, 2011
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
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
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
Wednesday, October 12, 2011
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
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
Tuesday, October 4, 2011
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
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
Saturday, October 1, 2011
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.
Read the full story at the Memphis Commercial Appeal.
Subscribe to:
Posts (Atom)