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