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