TWCA reviews whether the reconsideration of a settlement was barred by the statute of limitations

JOHN FREEMAN v. GENERAL MOTORS COMPANY ET AL. (TWCA October 22, 2012)

The employee sought reconsideration of workers’ compensation settlements concerning a back injury in 2003 and a right knee injury in 2006. The trial court granted the petition and increased the previous permanent partial disability awards to 30% to the body as a whole for the back injury and 100% to the leg for the knee injury.

The employer has appealed, contending that reconsideration of the back injury was barred by the statute of limitations, that the awards for both injuries were excessive, that the trial court incorrectly awarded benefits in excess of six times the anatomical impairment for the knee injury, and that the trial court erred by awarding benefits in a lump sum.

The employee contends that the trial court erred by failing to award permanent total disability benefits. We conclude that the employee’s petition for reconsideration of the settlement of his back injury was not timely filed and reverse that part of the judgment. We affirm the judgment in all other respects.

Opinion available at:
https://www.tba.org/sites/default/files/freemanj_102212.pdf

Court reviews a worker's compensation case involving a fraud upon the court

CHEYENNE DUFFER v. KEYSTOPS, LLC. (Tenn. Ct. App. August 1, 2012)

This appeal arises out of a personal injury suit, wherein the plaintiff and Dewayne Duffer filed suit against a trucking company for injuries suffered in an accident and for loss of consortium as a result of the accident. Plaintiff’s employer intervened to recover worker’s compensation benefits paid to plaintiff.

Soon thereafter, the trucking company discovered that plaintiff was male, had filed the action using an assumed female identity, and had lied throughout the discovery process. The trucking company filed a motion for summary judgment.

The court granted the motion and dismissed plaintiff’s and employer’s complaints, finding that plaintiff had committed a fraud upon the court and that employer had failed to file suit within the applicable statute of limitations because plaintiff’s complaint was rendered void ab initio. Plaintiff and employer appeal. We affirm the dismissal of plaintiff’s complaint but reverse the dismissal of employer’s complaint.

Opinion available at:
https://www.tba.org/sites/default/files/dufferc_080112.pdf

TN Supreme Court reviews whether an employee's claim for workers' compensation benefits was barred by the statute of limitations

GERDAU AMERISTEEL, INC. v. STEVEN RATLIFF (Tenn. June 7, 2012)

An employee viewed the bodies of co-workers who had died as a result of work accidents on two separate occasions in February and April 2008. On June 23, 2008, the employee was diagnosed with post-traumatic stress disorder caused by the two incidents. On June 23, 2009, the employee requested a benefit review conference. The employer filed a complaint to determine the amount of workers’ compensation benefits due.

The employer subsequently filed a motion for summary judgment contending that the statute of limitations commenced on the date of the second accident and that the claim was therefore barred. The employee contended that the statute did not begin to run until the date of his diagnosis and that his claim was timely.

The trial court granted the employer’s motion. The employee appealed. We reverse the judgment of the trial court and remand the case for entry of a judgment consistent with the trial court’s alternative findings.

Opinion available at:
https://www.tba.org/sites/default/files/gerdau_060712.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

TN Supreme Court reviews whether the statute of limitations bars negligence and strict liability claims in a products liability case

MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE CHRYSLER JEEP ET AL. (Tenn. December 15, 2011)

The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer.

Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal.

This Court granted the seller's application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. Because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.

Majority opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_121511.pdf

Justice Clark's concurring opinion is available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_CON_121511.pdf

TWCA reviews whether both of employee's surgeries were caused by a work-related injury

MAXINE WATLEY v. WHIRLPOOL CORPORATION ET AL. (TWCA September 8, 2011)

In this workers' compensation case, the employee injured her lower back at work in May 2006. She received medical treatment for a short period of time and was then released by her doctor. In July 2007, she consulted a neurosurgeon for continuing lower back pain. Around the same time, she accepted a voluntary layoff from her employer, then retired. She later had two surgeries on her lower back: a discectomy in October 2007, and a fusion in April 2008.

She filed this action, alleging that the surgeries and resulting disability were caused by her employment. Her employer denied the claim. The trial court found that the October 2007 surgery was caused by her May 2006 injury, but the April 2008 surgery was not. It further found that her award of permanent disability benefits was "capped" at one and one-half times her anatomical impairment due to her voluntary retirement. Her employer has appealed, contending that the trial court erred by finding her claim was not barred by the statute of limitations, and by using an incorrect impairment rating as the basis of its award. Employee contends that the trial court erred by failing to find that she was permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/watleym_090811.pdf

Court reviews whether the statute of limitations bars a plaintiff's claim for assault against security guards

HARRISON A. AZARI v. GREYHOUND BUS STATION, NASHVILLE, TENNESSEE (Tenn. Ct. App. August 25, 2011)

Plaintiff filed a complaint in 2010 against the owner of a bus line alleging security guards assaulted him while he was waiting for a bus in 2003. The defendant filed a motion to dismiss on the grounds that the statute of limitations barred the plaintiff's action. The trial court granted the motion to dismiss and the plaintiff appealed. We affirm the trial court's judgment because Tenn. Code Ann. section 28-3-104(a)(1) requires a plaintiff suing for personal injuries to file his complaint within one year of the date of the alleged assault resulting in injuries.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/azarih_082511.pdf

Court reviews whether employee's claim was barred by the statute of limitations of the GTLA

MONICA WHITMORE v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. August 15, 2011)

The trial court granted the defendant, Shelby County Government, judgment on the pleadings as to multiple causes of action brought by a former county employee. The trial court found, inter alia, the one-year statute of limitations of the Tennessee Governmental Tort Liability Act ("GTLA") barred the plaintiff's claim. Applying well-settled law, the court concluded the general saving statute does not apply to a claim non-suited and re-filed against a governmental entity under the GTLA.

Although the trial court failed to address whether a different conclusion might apply to causes of action arising under the Tennessee Human Rights Act ("THRA"), we hold the saving statute does not "save" a claim non-suited and refiled against a State entity under the THRA. The trial court therefore properly concluded the plaintiff's suit was time-barred. Because the trial court reviewed matters outside of the pleadings when deciding the defendant's motion, we grant summary judgment in favor of the defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/whitmorem_081511.pdf

TWCA Reviews whether an employee failed to timely file a request for a benefit review conference

DARRYL J. MAYTON v. WACKENHUT SERVICES, INC. (TWCA July 19, 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 issue presented in this case is whether the employee's request for a benefit review conference was filed more than one year after the employee had knowledge that his occupational disease was caused by his employment.

The trial court ruled that the employee's request was not timely and dismissed the case. After careful review, we hold that the evidence does not preponderate against the trial court's finding that Employee had knowledge that his illness was related to his employment more than one year before the filing of his request for a benefit review conference. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/maytond_071911.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

TWCA Reviews Whether the Statute of Limitations Bars an Employee’s Complaint

JOANN DAVIS v. HARWELL ENTERPRISES (TWCA December 2, 2010)

This appeal involves the application of the statute of limitations in Tenn. Code Ann. section 50-6-203(g)(2)(B) (2008) to a suit for workers' compensation benefits.

An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred.

The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating that her injury was work-related.

The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the employee's complaint and, therefore, reverse the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/davisj_120210.pdf

TN Supreme Court reviews whether the trial court properly dismissed a medical malpractice suit involving negligent prescription of drugs.

LOU ELLA SHERRILL ET AL. v. BOB T. SOUDER, M.D. ET AL. (Tenn. October 28, 2010)

This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.

The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf

TWCA Reviews Whether Employee Timely Filed His Request for Assistance

JOE LYNN HUGHES v. ROBERT BRENT d/b/a APARTMENT MAINTENANCE SPECIALISTS, ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf

TWCA Reviews Whether Employee Gave Sufficient Notice of his Injuries in His Initial Claim

RICK BOVEE v. HOME DEPOT, USA, INC. (TWCA August 18, 2010)

In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims.

Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits.

We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf

Court Reviews Whether the Statute of Limitations Barred Plaintiffs From Bringing a Claim Related to the Contamination of their House after a Flood

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. July 12, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold. Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_081210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_081210.pdf

Court reviews dismissal of medical malpractice case

SHAWN HOWELL, Individually and as Administrator for the Estate of JESSE FRANKLIN BROWNING, JR. v. CLAIBORNE AND HUGHES HEALTH CENTER (Tenn. Ct. App. June 25, 2010)

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff.

However, upon the Appellee's motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. section 29-26- 121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/howells_062510.pdf

Court reviews whether the statute of limitations barred claims in a case involving illnesses resulting from exposure to toxic mold

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. June 22, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold.

Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_062210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_062210.pdf

TWCA reviews whether the trial court properly dismissed claims against an Injury Fund

TIMOTHY TODD v. MTD CONSUMER GROUP ET AL. (TWCA May 13, 2010)

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 fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers' compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant.

After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/toddt_051310.pdf

Intentional delay in advancing claim based on defendant health and misunderstanding of state intention to delay not sufficient to overcome statute of limitations.

HARRY SKIPPER, et ux v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2009.)

Mr. Skipper filed a claim with the Tennessee Claims Commission, alleging that Tennessee Department of Transportation snow plow operator Dennis Burns crossed the center line, striking him. Mr. Burns became ill with cancer, and his deposition was scheduled three times before it was successfully taken. Following Mr. Burns' deposition, Mr. Skipper failed to advance his claim for a period of one year, and the Claims Commission dismissed his claim pursuant to Tennessee Code Annotated section 9-8-402(b). Mr. Skipper sought relief from the dismissal pursuant to Tennessee Rules of Civil Procedure 6.02, 59, and 60.02. Mr. Skipper's counsel claimed that he failed to act in order to allow Mr. Burns time to recover, so that he could testify live at trial. He further stated that it was his understanding that the State would contact him once such recovery was made. The Claims Commission denied Mr. Skipper relief from the order of dismissal, and Mr. Skipper appealed to this Court. We affirm.

Full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/skipperh_080309.pdf

Court reviews use of Family Purpose Doctrine in automobile accident case.

ROBERT STRINE, ET AL. v. JOSHUA WALTON, ET AL. (Tenn. Ct. App. April 15, 2010)

On July 7, 2005, Ashley Strine (Plaintiff) was injured while riding in a vehicle being driven by Joshua Walton (Walton). The vehicle was owned by James Rice (Father), who had given the vehicle to his son, Kevin Rice (Son), for Son's personal use. On the day of the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton and Plaintiff were planning on attending a birthday party later that day.

Plaintiff originally sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family purpose doctrine and negligent entrustment. Over two years later, Son was added as a defendant. An order of compromise and dismissal was entered as to Walton. Thereafter, Father and Son filed a joint motion for summary judgment. The Trial Court granted Father summary judgment on Plaintiff's claims pursuant to the family purpose doctrine and negligent entrustment. With regard to Son, the Trial Court concluded that all claims against him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/striner_041510.pdf