Court reviews a case involving an automobile accident

EDNA H. IRWIN, v. CHRISTOPHER MARTIN ANDERSON (Tenn. Ct. App. December 18, 2012)

Plaintiff received serious injuries in an automobile accident, when she turned left in front of the oncoming vehicle operated by defendant. The suit resulted in a jury trial wherein the jury returned a verdict for defendant, which was approved by the Trial Judge. On appeal, we affirm the Trial Judge's Judgment.

Opinion available at:
https://www.tba.org/sites/default/files/irwine_121812.pdf

Court reviews whether a collision occurred between the Plaintiff and a tractor-trailer

SHERRY HUTSON v. SAFE STAR TRUCKING ET AL. (Tenn. Ct. App. October 31, 2012)

In this case, Sherry Hutson filed a complaint in which she alleged her vehicle was struck by a tractor-trailer (“the tractor”) that left the scene of the accident. She seeks to recover under the uninsured motorist (“UM”) provisions of a policy providing coverage to the vehicle she was driving. The jury found that no “actual physical contact ha[d] occurred between” the plaintiff’s vehicle and the vehicle that left the scene. She appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/hutsons_103112.pdf

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 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

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 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

Court reviews a motor vehicle accident case involving a professional driver hired to perform at an exhibition

GINNY BETH KING, ET AL. v. FLOWMASTER, INC. (Tenn. Ct. App. September 27, 2011)

Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment.

We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/KingG_092711.pdf

TN Supreme Court reviews whether the Family Purpose Doctrine applies to a father who did not reside in the same household as his son

ARLENE R. STARR v. PAUL B. HILL, SR., ET AL. (Tenn. August 31, 2011)

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member.

Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father's permission such that he had control over its use.

The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household's express or implied permission.

The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/starra_083111.pdf

TN Supreme Court reviews an uninsured motorist policy with limits lower than the statutory amount

RANDALL D. KISER v. IAN J. WOLFE ET AL. (Tenn. August 24, 2011)

The plaintiff, an employee of the insured, was injured while driving the insured's tow truck. He filed suit against the defendant and later sought to invoke the insured's uninsured motorist policy in an amount equal to the liability coverage for bodily injury. The insurer filed a motion for partial summary judgment, seeking to limit uninsured motorist coverage to the amount listed on the first page of the policy rather than the amount otherwise fixed by statute. The trial court denied the motion, but the Court of Appeals reversed.

We affirm the judgment of the Court of Appeals, holding that the insured was entitled to a partial summary judgment. When the insured signs an application indicating the selection of uninsured motorist coverage lower than the liability limits, but neglects to initial a provision designed to confirm the selection of coverage less than the standard provided by statute, the "in writing" requirement under Tennessee Code Annotated section 56-7-1201(a)(2) (2008) has been satisfied. The cause is remanded to the trial court for the entry of partial summary judgment and such other proceedings, as may be necessary.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/kiserr_082411.pdf

LEE concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TSC/2011/kiserr_CON_082411.pdf

Court reviews whether an attorney's failure to substitute a party for the deceased plaintiff in an automobile accident case was excusable neglect

THOMAS PAUL SCOTT v. JAMES KEVIN ROBERSON (Tenn. Ct. App. August 25, 2011)

Plaintiff injured in automobile accident died while his negligence action was pending. Plaintiff's counsel filed a suggestion of death but neglected to move to substitute a party for the deceased plaintiff within 90 days, as required by Tenn. R. Civ. P. 25.01(1). Defendants filed motions for summary judgment, which led plaintiff's estate to file a motion to enlarge time within which to move to substitute pursuant to Tenn. R. Civ. P. 6.02.

The trial court determined that plaintiff's counsel's neglect in moving to substitute within 90 days was not excusable and granted defendants' motions, dismissing the action. On appeal we affirm the trial court's judgment because we cannot conclude that the trial court abused its discretion in ruling the neglect was not excusable.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/scottt_082511.pdf

Court reviews a driver's post-judgment motions in an automobile accident case

BILLIE SEAY FUBO NATIONWIDE INSURANCE v. BETTY WALSH ET AL. (Tenn. Ct. App. August 11, 2011)

On or about May 28, 2005, Billie Seay was involved in an automobile accident with a vehicle driven by the defendant Thomas E. Walsh ("the Driver"), which vehicle was owned by the defendant Betty Walsh ("the Owner"). Seay's insurance company, Nationwide Insurance Company, settled her claim and filed this subrogation action in Seay's name for the use and benefit of Nationwide against the Driver and the Owner. The Driver and the Owner filed separate pro se answers. The Owner appeared at trial, but the Driver did not appear. The trial court entered a judgment against both defendants. Two and a half years later, the Driver filed a motion to set aside the judgment. It was denied. He then filed a series of similar unsuccessful post-judgment motions. The Driver appeals from the last order denying post-judgment relief. We affirm.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/seayb_081111.pdf

'Due care' law went into effect July 1

A new state law that will levy penalties for failure to "exercise due care" while driving a motor vehicle went into effect July 1. According to the bill's sponsor, the law also makes it easier for those injured, or the survivors of those killed, to prevail in civil lawsuits by "making it clear that the law requires people in a car to exercise proper driving restraint around people on a bicycle and pedestrians."

The Murfreesboro Post has the full story, which you can read here: 'Sorry I Didn’t See You' is no longer a legal excuse

Court Reviews a Wrongful Death Suit Against a City Involving an Unsafe Condition Claim

GUY ALEXANDER, JR., AS SURVIVING SPOUSE OF JULIE ANNE ALEXANDER, DECEASED v. CITY OF MURFREESBORO (Tenn. Ct. App. March 15, 2011)

Julie Alexander died in an automobile accident on South Rutherford Boulevard in Murfreesboro. Her husband sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. After a trial, the trial court found that the city did not have notice and that the road was not unsafe or dangerous. Ms. Alexander's husband appealed. We affirm the trial court's decision that the city had no notice of the condition.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/alexanderg_031511.pdf

Court Reviews the Denial of a Motion to Amend a Complaint in an Automobile Accident Case

LAMAR REYNOLDS v. LOUIS R. TOGNETTI and WENDEE L. TOGNETTI (Tenn. Ct. App. March 4, 2011)

Before filing this personal injury action arising from an automobile accident, the plaintiff filed for Chapter 7 bankruptcy. Although the plaintiff's personal injury action accrued prior to his filing for bankruptcy, he omitted the potential claim from a schedule of assets in the bankruptcy petition. The plaintiff received a discharge in bankruptcy, and, shortly thereafter, filed the instant action.

After the defendants moved for summary judgment, the plaintiff moved to amend his complaint in order to add the bankruptcy Trustee as a party. The trial court did not rule on the plaintiff's motion to amend, and instead granted the defendants summary judgment, finding that the plaintiff lacked standing and was judicially estopped from pursuing his personal injury claim. On appeal, we conclude that the trial court erred when it failed to rule on the plaintiff's motion to amend his complaint prior to adjudicating the defendants' summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/reynoldsl_030411.pdf

Court Reviews Whether the Trial Court Properly Denied a Rule 60.02 Motion in a Case involving an Automobile Accident

RICHARD A. WILLETTE, JR. v. CARROLL G. HULSE ET AL. (Tenn. Ct. App. October 7, 2010)

This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01.

The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run.

The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/willetter_100710.pdf

Court Reviews the Beginning of the Statute of Limitations in an Automobile Accident Case

PATRICIA MILLS, ET AL. v. JOHN H. BOOTH, II, ET AL. (Tenn. Ct. App. December 28, 2010)

On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II ("Booth"). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding.

A complaint was filed on November 10, 2009, by Altha Turlington's daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millsp_122810.pdf

Court Reviews a Case Involving an Automobile Accident between Plaintiff and a Police Officer

TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE (Tenn. Ct. App. December 14, 2010)

Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.

In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf

Court Reviews a Jury’s Determination of Allocation of Fault in an Automobile Accident Case

LIMMIE R. WALLS v. BOBBY G. HOPKINS (Tenn. Ct. App. November 23, 2010)

This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion.

On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/wallsl_112310.pdf