TWCA reviews whether an employee's injury was compensable.

SCOTT D. STRAIN v. MR. BULT’S, INC. ET AL. (TWCA November 29, 2012)

An employee alleged that he sustained an injury to his back. His employer denied the claim. The trial court found the injury to be compensable and awarded the employee 30% permanent partial disability benefits. The employer has appealed contending that the evidence preponderates against the trial court’s finding that the injury is compensable. On appeal, the employee asserts that the award of benefits was inadequate. After review of the record, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/strains_112912.pdf

Court reviews a medical malpractice case re-filed by the original plaintiff's heir following her death

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H. Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC. (Tenn. Ct. App. November 27, 2012)

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit.

Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/bullockd_112712.pdf

Court reviews the appropriate classification of employees for worker's compensation insurance coverage

ADVANTAGE PERSONNEL CONSULTANTS, INC. v. TENNESSEE DEPARTMENT OF COMMERCE ET AL. (Tenn. Ct. App. November 27, 2012)

This matter involves a disagreement between an insurer and an insured over the proper classification of employees for the purpose of workers’ compensation insurance. The decision of the Department of Commerce and Insurance was in favor of the insurer. The insured appealed to the trial court, which affirmed the Department. We find that the decision of the Department of Commerce and Insurance is supported by substantial and material evidence and affirm the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/advantage_112712.pdf

TWCA reviews whether the right to reconsideration of a settlement is triggered by an across-the-board wage reduction

RON W. ROBINSON v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA November 21, 2012)

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 pursuant to Tenn. Sup. Ct. R. 51.

The employee injured his neck in the course of his employment in 2005. He returned to work for his pre-injury employer and settled his claim subject to the one and one-half times impairment cap.

In 2009, the employer entered into a new collective bargaining agreement in which the hourly wages of all production workers were reduced. Thereafter, the employee sought reconsideration on his earlier settlement pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B) (2008). The trial court held that the across-the-board wage reduction did not trigger the right to reconsideration and denied the employee’s claim. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/robinsonr_112112.pdf

Court reviews competing claims to the proceeds of a life insurance policy.

STONEBRIDGE LIFE INSURANCE COMPANY, GWENDOLYN R. WILLIAMS v. ONZIE O. HORNE, III (Tenn. Ct. App. November 21, 2012)

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds.

Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer.

We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/williamsg_11212012.pdf

Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf

Court reviews whether a child was a resident of a household for the purposes of insurance liability

COTTON STATES MUTUAL INSURANCE COMPANY v. JAMI McNAIR TUCK, ET AL. (Tenn. Ct. App. November 9, 2012)

An insurance company filed a declaratory judgment action seeking a declaration that mother and child were residents of the insured’s household, and therefore, that coverage for the death of the child was excluded by the relevant homeowner’s insurance policy. The chancery court found that mother and child were not residents of the insured’s household at the time of the child’s death, and we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cottonstates_110912.pdf

Court reviews whether a medical expert failed to identify the standard of care in a wrongful death case

BRENDA GRIFFITH, NEXT OF KIN OF DECEDENT, BOB GRIFFITH v. DR. STEPHEN GORYL AND UPPER CUMBERLAND UROLOGY ASSOCIATES, P.C. (Tenn. Ct. App. November 1, 2012)

In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.

The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.

We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.

Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf

Tennessee Supreme Court reviews an emotional distress case involving the mishandling of a corpse.

RONDAL AKERS ET AL. v. PRIME SUCCESSION OF TENNESSEE, INC. ET AL. (Tenn. October 26, 2012)

Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged mishandling of their deceased son’s body, which had been sent to Mr. Marsh’s crematorium for cremation. Following a jury verdict for the Akerses, the trial court entered judgment against Mr. Marsh based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on the Akerses’ Tennessee Consumer Protection Act (“TCPA”) and bailment claims. The Court of Appeals affirmed.

We hold the trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Mr. Marsh’s invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. The judgments of the trial court and the Court of Appeals are affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/akersr_COR_102612.pdf