Court reviews a remittitur in a case involving an automobile accident

KAREN JOHNSON v. BEVERLY NUNIS AND FARMER’S INSURANCE EXCHANGE (Tenn. Ct. App. April 27, 2012)

This appeal involves remittitur of a jury verdict. The defendant driver caused a vehicular accident that resulted in substantial personal injuries to the plaintiff. At trial, several witnesses testified to the amount of the plaintiff’s economic damages as well as the noneconomic impact of her injuries. After a trial, the jury returned a special verdict with awards for various categories of economic and non-economic damages.

The trial court denied the defendant insurance company’s motion for a new trial but suggested an overall remittitur as to the total verdict. The plaintiff accepted the remittitur under protest and filed this appeal. We affirm the denial of a new trial, reverse the suggestion of remittitur, and reinstate the original jury verdict.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonk_042712.pdf

Court reviews the limitation of liability in an insurance policy in a case involving a city volunteer

PAUL VINCENT GIANNINI v. AMANDA PROFFITT (Tenn. Ct. App. April 27, 2012)

This appeal involves a limitation of liability in an insurance policy. The plaintiff was working in a volunteer capacity for the city. While doing so, the plaintiff sustained injuries in an accident caused by the negligence of the defendant. The plaintiff’s medical expenses were paid through the city’s on-the-job-injury program. The plaintiff had uninsured motorist coverage under his insurance policy with the appellee insurance company.

The appellee insurance company denied the plaintiff’s claim based on language in the policy reducing the insurance company’s liability by sums paid under laws similar to workers’ compensation laws. The insurance company asserted that the city’s on-the-job-injury program was similar to workers’ compensation.

The plaintiff filed this lawsuit, and the plaintiff and the insurance company filed cross-motions for summary judgment on the issue of coverage. The trial court granted summary judgment in favor of the insurance company, finding that the plaintiff’s benefits under the city’s on-the-job-injury program were similar to workers’ compensation. The plaintiff now appeals. We affirm the grant of summary judgment, for the reason stated by the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/gianninip_042712.pdf

House GOP Pushing Med Mal as Budget Fix

Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal healthcare costs.

Read the full story at The Blog of Legal Times

TN Supreme Court reviews whether plaintiff's proof of serious mental injury was sufficient to support a claim of intentional infliction of emotional distress

BETTY SAINT ROGERS v. LOUISVILLE LAND COMPANY ET AL. (Tenn. April 19, 2012)

In this appeal, the defendants seek a review of the trial court’s decision to award the plaintiff compensatory and punitive damages based on the tort of intentional infliction of emotional distress arising out of inadequate maintenance of the cemetery where the plaintiff’s son was buried.

To recover damages for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was either intentional or reckless, was so outrageous that it is not tolerated by civilized society, and caused a serious mental injury to the plaintiff.

The primary question presented is whether the plaintiff in this action proved the requisite serious mental injury to support the trial court’s award of compensatory and punitive damages. We hold that the plaintiff’s proof was deficient. The judgment of the Court of Appeals is affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/rogersb_041912.pdf

Court reviews whether the requirement of a Certificate of Good Faith in medical malpractice cases violates due process and equal protection

SANDI D. JACKSON v. HCA HEALTH SERVICES OF TENNESSEE, INC., D/B/A CENTENNIAL MEDICAL CENTER ET AL. (Tenn. Ct. App. April 19, 2012)

This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith.

All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.”

Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case.

The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/jacksons_041912.pdf

Court reviews a medical malpractice involving permanent injuries sustained by an infant during surgery

MICHAEL H. GAW, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL. (Tenn. Ct. App. April 20, 2012)

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care.

At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/gawm_042012.pdf

Court reviews a GTLA claim against Berry Hill in a case involving a construction accident

JOHN DURLING KEMPER v. JOE C. BAKER, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER OF BERRY HILL, TENNESSEE ET AL.(Tenn. Ct. App. April 20, 2012)

This is a GTLA action against a city and city official following a construction accident in which an exterior wall of a building collapsed, causing serious injuries to one of the plaintiffs and causing the death of the other plaintiff. The building was being demolished and the plaintiffs were employed by a private company that was to disconnect gas utilities on the privately owned building.

The plaintiffs claim the collapse was caused, in part, by the failure of the city and the city manager to enforce certain OSHA regulations and provisions of the municipal building code. The trial court dismissed the plaintiffs’ claims against the city and the city official on the defendants’ motion for summary judgment based on governmental immunity. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/kemperj_042012.pdf

TWCA reviews whether an employee's degenerative disk disease was caused by her employment

SANDRA M. BUTTREY v. ALTRIA GROUP, INC. (TWCA April 24, 2012)

The employee had degenerative disk disease for a number of years prior to April 2009, when she reported to her employer that she was experiencing significantly increased neck pain and symptoms, and she sought treatment. The employer denied the employee’s claim for workers’ compensation benefits. The trial court credited the testimony of the employee and of one of the treating physicians and awarded the employee 28.5% permanent partial disability to the body as a whole. The employer appeals, asserting that the employee’s injury was not caused by her employment. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/buttreys_042412.pdf

Court reviews an order to exclude an expert witness based on the locality rule in light of the Shipley opinion

VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL. (Tenn. Ct. App. April 18, 2012)

Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.

In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley.

If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants.

Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.

Opinion available at:
https://www.tba.org/sites/default/files/kennardv_041812.pdf

TWCA reviews whether an employee was permanently and totally disabled as a result of her injury

KATHY JOHNSON v. YOON INVESTMENTS, L.L.C. ET AL. (TWCA April 12, 2012)

The trial court found that the employee had sustained a compensable injury in October 2005 and that she was permanently and totally disabled as a result of the injury. It also found that the employee’s hospitalization in November and December 2009 was related to her work injury and ordered her employer to pay associated medical expenses.

On appeal, her employer contends that the trial court erred by finding that the employee was permanently and totally disabled and that the 2009 medical expenses were related to her work injury. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonk_041212.pdf

Court reviews a jury award in a products liability case

AUNDREY MEALS, as Natural Parent, Guardian, and Next Friend of WILLIAM MEALS v. FORD MOTOR COMPANY (Tenn. Ct. App. April 13, 2012)

Following a seven week trial, the jury returned a verdict in favor of Plaintiff in this products liability action. The jury awarded compensatory damages in excess of $43 million, and assessed 15 percent fault against Defendant car manufacturer. Defendant appeals. We affirm the jury verdict with respect to liability but remand with a suggestion of remittitur.

Opinion is available at:
https://www.tba.org/sites/default/files/mealsa_041312.pdf

Kirby's dissenting opinion is available at:
https://www.tba.org/sites/default/files/meals_DIS_041312.pdf

Court Rules for Insured After Agent's Mistake

The Tennessee Supreme Court ruled today that an insurance company must provide vehicle liability insurance coverage to the insured as he requested from his insurance company’s agent but did not receive because of a mistake by the agent. Learn more from the Administrative Office of the Court about Allstate Insurance Company v. Diana Lynn Tarrant and read the dissenting opinion from Justice William Koch and Chief Justice Cornelia Clark.

TN Supreme Court reviews whether an insurer properly changed a policy from a commercial policy to a personal policy

ALLSTATE INSURANCE COMPANY v. DIANA LYNN TARRANT ET AL. (Tenn. March 26, 2012)

After an automobile accident between the insured’s van and a motorcycle, the insurer filed a declaratory judgment action to determine whether the van was covered under a commercial policy with a liability limit of $500,000 or a personal policy with liability limits of $100,000 per person and $300,000 per accident. The insurer alleged that before the accident the insured had instructed his insurance agent to transfer the van from the commercial policy to the personal policy. The insured denied this and alleged that he had instructed the agent to retain the van on the commercial policy.

The trial court ruled that because the insurer had sent the insured a letter and premium bills showing the change in coverage and the insured had paid the bills without objection, he had ratified the transfer and the van was covered under the personal policy. The Court of Appeals reversed.

We hold that the action of the insurance agent in transferring the van to the personal policy was not subject to ratification by the insured because the insurance agent was not acting in the insured’s stead or for his benefit when it made the transfer. We further hold that the insurer is estopped from denying coverage under the commercial policy. We affirm the judgment of the Court of Appeals, although on different grounds.

Opinion available at:
https://www.tba.org/sites/default/files/allstate_032612.pdf

Koch, dissenting opinion:
https://www.tba.org/sites/default/files/allstate_DIS_032612.pdf

Court reviews a legal malpractice claim arising from a breach of contract dispute

CARDIAC ANESTHESIA SERVICES, PLLC v. JON JONES (Tenn. Ct. App. April 2, 2012)

This case involves the application of the statute of limitations to a legal malpractice action.

Appellee attorney drafted a contract for Appellant medical provider; the contract contained a fee-split clause in contravention of Tennessee Code Annotated Section 63-6-225. When the other party to the contract, a hospital, allegedly breached the contract and sued the medical provider, the medical provider counterclaimed for breach of contract. The hospital answered the complaint and filed a motion for summary judgment, asserting that the contract was illegal and unenforceable.

The trial court ruled that Tennessee Code Annotated Section 63-6- 225 did not apply to the contract at issue. A jury returned a verdict in favor of the medical provider for more than one million dollars.

The Court of Appeals reversed, holding that Tennessee Code Annotated Section 63-6-225 invalidated the contract, and remanded the case for dismissal. Within one year of the Court of Appeals opinion, the medical provider filed this legal malpractice case against the drafting attorney. The trial court dismissed the case as beyond the one-year legal malpractice statute of limitations. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cardiacanesthesia_040212.pdf