ROBIN BAKER v. A & L INDUSTRIAL CONSTRUCTION AND MAINTENANCE, INC. (TWCA March 7, 2011)
The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee's evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded benefits accordingly. The employer has appealed that finding. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/bakerr.pdf
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Monday, March 7, 2011
Friday, March 4, 2011
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
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
Thursday, March 3, 2011
TWCA Reviews Insurer Liability in a Case in Which Employer had Two Workers' Comp Policies at the Time of Employee's Injury
BUILDERS MUTUAL INSURANCE COMPANY v. S & W BUILDERS, INC. ET AL. (TWCA March 3, 2011)
In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury.
The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf
In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury.
The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf
TWCA Reviews a Motion to Compel an Employer to Provide Medical Treatment where the Settlement included a Waiver of the Right to Future Treatment
ANNE MARIE SMITH v. INTEX ENTERPRISES, LLC (TWCA March 3, 2011)
The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf
The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf
Wednesday, March 2, 2011
TBA Today: No mandatory mediation for workers' comp appeals
The Tennessee Supreme Court today issued an order revoking TN. Sup. Ct. R. 37, a provisional rule that required mediation of workers compensation appeals. The TBA submitted a comment in February supporting the repeal because the process was seen as having little value.
http://www.tba2.org/tbatoday/news/2011/workercompmediation_030211.pdf
http://www.tba2.org/tbatoday/news/2011/workercompmediation_030211.pdf
TWCA Reviews a Finding of Permanent Total Disability
JACQUELINE MORAN v. CUMBERLAND COUNTY MEDICAL CENTER, ET AL. (TWCA March 2, 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 injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.
The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf
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 injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.
The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf
Court Reviews Whether City of Lebanon had Constructive Notice of a Dangerous Park Swing
CHARLES JUSTIN WRIGHT, BY NEXT FRIEND AND MOTHER, KAREN PRYOR v. CITY OF LEBANON, TENNESSEE (Tenn. Ct. App. March 2, 2011)
In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf
In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf
Court Reviews a Finding Against Plaintiff in a Medical Malpractice Case
JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL. (Tenn. Ct. App. March 2, 2011)
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
Tuesday, March 1, 2011
Court Reviews Whether Defendants had Notice of a Defective or Dangerous Condition in a Case Involving a Tanning Bed Accident
AVIE ALEANE HARDING ET AL. v. DONOVAN ENTERPRISES, INC. D/B/A CAPTAIN VIDEO & TANNING (Tenn. Ct. App. March 1, 2011)
A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.pdf
A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.pdf
Monday, February 28, 2011
TWCA Reviews Issues Regarding the Calculation of Employee's Weekly Wage, Expert Witness Fees, and a Set-Off to Employer for Settlement
DAVID WEACHTER v. HARTFORD UNDERWRITERS INSURANCE COMPANY (TWCA February 28, 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.
Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court's calculation of the average weekly wage, the trial court's denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert's fees. The judgment is modified accordingly.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/weachterd_022811.pdf
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.
Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court's calculation of the average weekly wage, the trial court's denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert's fees. The judgment is modified accordingly.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/weachterd_022811.pdf
TWCA Reviews whether Employee Met the Burden of Proof to Prove Permanent Impairment
LINDA LEE KENNEY v. SHIROKI NORTH AMERICA, INC. ET AL. (TWCA February 28, 2011)
The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf
The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf
TWCA Reviews the Impairment Rating Assigned by an MIR Physician
SARAH LOUISE BEAN v. TEPRO, INC. (TWCA February 28, 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.
Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return.
At trial, the trial judge heard proof regarding the extent of Employee's permanent physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf
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.
Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return.
At trial, the trial judge heard proof regarding the extent of Employee's permanent physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf
Friday, February 25, 2011
TWCA Reviews Whether Employee’s Injuries Resulted from his Intoxication
TIMOTHY RUSKIN v. LEDIC REALTY SERVICES, LTD. (TWCA February 25, 2011)
In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf
In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf
TWCA Reviews a Determination of Permanent Partial Disability in a Case Involving Conflicting Assessments between Several Physicians
PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES (TWCA February 25, 2011)
Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment.
The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf
Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment.
The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf
Thursday, February 24, 2011
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Tuesday, February 22, 2011
Court Reviews a Summary Judgment Ruling in a Case in Which Defendant Negated the Damages Element
PAMELA CHAMPION, ET AL. v. CLC OF DYERSBURG, LLC, ET AL. (Tenn. Ct. App. February 22, 2011)
The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf
The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf
Court Reviews a Medical Malpractice Case in which Trial Court Held Membership on Defendant Hospital’s Board of Directors
GILBERT OLERUD, ET AL. v. DR. WALTER M. MORGAN, III, ET AL. (Tenn. Ct. App. February 22, 2011)
This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court's membership on the board of directors of the defendant hospital and the court's denial of their motion for default judgment based on spoliation of evidence. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/olerudg_022211.pdf
This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court's membership on the board of directors of the defendant hospital and the court's denial of their motion for default judgment based on spoliation of evidence. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/olerudg_022211.pdf
Monday, February 21, 2011
Friday, February 18, 2011
TWCA Reviews Whether Employee’s Aggravated Pre-Existing Injuries were Related to her Employment
CAROLYN BERRY v. ARMSTRONG WOOD PRODUCTS (TWCA February 18, 2011)
Employee filed a complaint for workers' compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment.
The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability ("PPD") to the body as a whole. The employer appealed, contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A).
We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/berryc_021811.pdf
Employee filed a complaint for workers' compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment.
The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability ("PPD") to the body as a whole. The employer appealed, contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A).
We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/berryc_021811.pdf
Thursday, February 17, 2011
Court Reviews the Jury’s Allocation of Fault in a Medical Malpractice Case
JAMES AND PATRICIA CULLUM, ET AL. v. BAPTIST HOSPITAL SYSTEMS, INC., ET AL. (Tenn. Ct. App. February 17, 2011)
This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals.
The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule.
The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the non-party physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cullumj_021711.pdf
This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals.
The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule.
The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the non-party physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cullumj_021711.pdf
Wednesday, February 16, 2011
TWCA Reviews Whether Employee Provided Timely Notice of His Injury
WAUSAU INSURANCE COMPANY v. ARCHIE W. RICHARDSON (TWCA February 16, 2011)
The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf
The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf
TWCA Reviews Whether an Employee was Permanently Disabled
WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA February 16, 2011)
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The 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 findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The 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 findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf
Tuesday, February 15, 2011
Court Reviews Whether Plaintiffs Complied with the TCA’s Notice Requirements in a Medical Malpractice Case
KARAH and RYAN DePUE, et al., v. CHARLES D. SCHROEDER, et al. (Tenn. Ct. App. February 15, 2011)
Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf
MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf
Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf
MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf
Friday, February 11, 2011
Court Reviews Apportionment of Fault in a Wrongful Death Case Against the City of Clinton
CURTIS ROBIN RUSSELL, ET AL. v. ANDERSON COUNTY, ET AL. (Tenn. Ct. App. February 11, 2011)
This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.
The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.
On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf
This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.
The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.
On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf
Monday, January 31, 2011
Court Reviews Whether Bank Created or Maintained a Dangerous Condition that Led to Plaintiff's Fall into Curbside Shrubbery
KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE (Tenn. Ct. App. January 31, 2011)
Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf
Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf
Friday, January 28, 2011
TWCA Reviews Whether Employee was Permanently and Totally Disabled in a Trucking Accident
WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA January 28, 2011)
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled.
The 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 findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_012811.pdf
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled.
The 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 findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_012811.pdf
Thursday, January 27, 2011
TWCA Reviews Trial Court’s Choice of IME Rating over the Treating Physician’s Impairment Rating
DOROTHY MICHAUD v. REHAB CARE GROUP (TWCA January 27, 2011)
The employee sustained a compensable injury to her shoulder. As a result of her medical restrictions, she was unable to return to work at her previous job. The trial court adopted the impairment rating assigned by the physician conducting the employee's Independent Medical Examination over that of the treating doctor and awarded 48% permanent partial disability to the body as a whole. The employer appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/michaudd_012711.pdf
The employee sustained a compensable injury to her shoulder. As a result of her medical restrictions, she was unable to return to work at her previous job. The trial court adopted the impairment rating assigned by the physician conducting the employee's Independent Medical Examination over that of the treating doctor and awarded 48% permanent partial disability to the body as a whole. The employer appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/michaudd_012711.pdf
Wednesday, January 26, 2011
TN Supreme Court Reviews Whether Claims Brought in a Wrongful Death Suit Were Based Upon Medical Malpractice or Ordinary Negligence
ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL. (Tenn. January 26, 2011)
The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.
The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.
We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf
The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.
The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.
We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf
Court Reviews Standing in a Case Involving the Amount of Fees Owed to an Attorney
LESA C. WILLIAMS, ET AL. v. RENARD A. HIRSCH, SR. (Tenn. Ct. App. January 26, 2011)
This application for an interlocutory appeal concerns a client's standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client's complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court's order dismissing the client's complaint.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/williamsl_012611.pdf
This application for an interlocutory appeal concerns a client's standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client's complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court's order dismissing the client's complaint.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/williamsl_012611.pdf
Court Reviews the Validity and the Payment of a Hospital Lien
SHELBY COUNTY HEALTH CARE CORPORATION, D/B/A REGIONAL MEDICAL CENTER v. JOHN BAUMGARTNER, ELIZABETH BAUMGARTNER, A/K/A DARAY BAUMGARTNER, NATIONWIDE MUTUAL INSURANCE COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY (Tenn. Ct. App. January 26, 2011)
This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a third-party tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient's medical expenses.
Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor's insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment.
The trial court granted in part the hospital's motion for summary judgment. Against the patient's own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor's insurance company, the hospital was awarded an amount equal to the policy coverage limit.
The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital's recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital's lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/baumgartnerj_012611.pdf
This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a third-party tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient's medical expenses.
Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor's insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment.
The trial court granted in part the hospital's motion for summary judgment. Against the patient's own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor's insurance company, the hospital was awarded an amount equal to the policy coverage limit.
The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital's recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital's lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/baumgartnerj_012611.pdf
Thursday, January 20, 2011
Court Reviews a Summary Judgment Ruling in a Medical Battery Case
MARK W. URLAUB, as next of kin and Executor of the Estate of BERTHA WORLEY URLAUB v. SELECT SPECIALTY HOSPITAL-MEMPHIS, INC., ET AL. (Tenn. Ct. App. January 20, 2011)
Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court's decision.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/urlaubm_012011.pdf
Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court's decision.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/urlaubm_012011.pdf
Court Reviews A Case Involving an Employee’s Accident on a Railroad
CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App. January 20, 2011)
Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers' Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad's motion for permission to seek an interlocutory appeal. We granted the railroad's application for an interlocutory appeal and now affirm the trial court's decision to deny the motion for summary judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wardc_012011.pdf
Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers' Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad's motion for permission to seek an interlocutory appeal. We granted the railroad's application for an interlocutory appeal and now affirm the trial court's decision to deny the motion for summary judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wardc_012011.pdf
Tuesday, January 18, 2011
Court Reviews the Appropriation of Fault in a Case Involving a Bicycle Accident
ROBERT D. GRAY v. ANDY B. ROTEN, II and GARY B. ROTEN (Tenn. Ct. App. January 18, 2011)
This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee's truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee.
On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court's finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grayr_011811.pdf
This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee's truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee.
On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court's finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grayr_011811.pdf
Thursday, January 6, 2011
Court Reviews Whether Plaintiff Received Sufficient Time to Procure Representation and Expert Testimony in a Medical Malpractice Case
KATHY D. PARTEE V. JAIME VASQUEZ, M.D. (Tenn. Ct. App. January 6, 2011)
A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery.
The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit.
The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant's motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/parteek_010611.pdf
A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery.
The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit.
The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant's motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/parteek_010611.pdf
Tuesday, January 4, 2011
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
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
Wednesday, December 29, 2010
Tennessee's Proposed Med Mal Reform Not Likely To Benefit Patients
Ask any politician funded by insurance companies or physicians and they will tell you that medical malpractice suits are bad. Without any empirical evidence, they will confidently tell you that malpractice suits increase healthcare costs, that they increase malpractice premiums for doctors, and discourage physicians from practicing. Though prior studies by Harvard University and others have refuted these myths - the myths remain.
A new study of dramatic medical malpractice reform in Texas once again shows that reforms do not solve the problems alleged by politicians and instead may harm patients in the long run. In fact, the new report concludes that the real "data do(es) not support claims made about benefits of reform. And the problem of negligence by physicians,other providers, and institutions is still largely ignored" in the presence of reform.
Please read this article and call your legislator. Do not assume malpractice will not happen to you. Tennessee recently passed sensible, bi-partisan reforms which ensured that frivolous malpractice cases would not be filed. The playing field is now level for negligent doctors and injured patients. Tennessee's 2011 proposed reforms seek to limit what a physician or hospital must pay you for their negligence now matter how severe the injury may be. These proposals would benefit insurers. However, anyone who is injured or disabled by malpractice beyond the arbitrary cap or limit on claims would be financially devastated and/or become a burden on taxpayers by winding up with state and government benefits such as TennCare or Medicare. The only way to protect you and your family is to ask your legislators to leave Tennessee's malpractice laws alone.
A new study of dramatic medical malpractice reform in Texas once again shows that reforms do not solve the problems alleged by politicians and instead may harm patients in the long run. In fact, the new report concludes that the real "data do(es) not support claims made about benefits of reform. And the problem of negligence by physicians,other providers, and institutions is still largely ignored" in the presence of reform.
Please read this article and call your legislator. Do not assume malpractice will not happen to you. Tennessee recently passed sensible, bi-partisan reforms which ensured that frivolous malpractice cases would not be filed. The playing field is now level for negligent doctors and injured patients. Tennessee's 2011 proposed reforms seek to limit what a physician or hospital must pay you for their negligence now matter how severe the injury may be. These proposals would benefit insurers. However, anyone who is injured or disabled by malpractice beyond the arbitrary cap or limit on claims would be financially devastated and/or become a burden on taxpayers by winding up with state and government benefits such as TennCare or Medicare. The only way to protect you and your family is to ask your legislators to leave Tennessee's malpractice laws alone.
Tuesday, December 28, 2010
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
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
Friday, December 24, 2010
Court Reviews Whether Plaintiff, a Customer and Employee of Defendant, Can Recover Damages Outside Workers’ Compensation Law
JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL. (Tenn. Ct. App. November 24, 2010)
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
Wednesday, December 22, 2010
Court Reviews A Motion for a New Trial in a Medical Malpractice Case Involving the Death of a Pregnant Woman
MARK COOPER, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW OF LESLIE PHILLIPSEN v. THOMAS N. TABB, M.D., INDIVIDUALLY, THOMAS N. TABB, P.C., AND PERINATAL ASSOCIATES, P.C. (Tenn. Ct. App. December 22, 2010)
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
Tuesday, December 21, 2010
TWCA Reviews Whether Employee's Re-Injury was a Natural Consequence of His Prior Compensable Knee Injuries
FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (TWCA December 21, 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.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
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.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
Monday, December 20, 2010
Court Reviews Whether an Amendment to the TCA’s Medical Malpractice Law Applies to a Case Initiated Prior to the Effective Date
PAMELA ANN BARNETT v. ELITE SPORTS MEDICINE, ET AL. (Tenn. Ct. App. December 20, 2010)
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
Friday, December 17, 2010
Court Reviews Jury’s Apportionment of Fault
ZULA GRAY v. JOE BEDNARZ, JR. (Tenn. Ct. App. December 17, 2010)
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Wednesday, December 15, 2010
Court Reviews Whether Plaintiff Satisfied his Burden of Proof in a Medical Negligence Case
ROBERT BROWN, An Incompetent, by and through next friend ANGELA ANDERSON v. STATE OF TENNESSEE (Tenn. Ct. App. December 15, 2010)
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Tuesday, December 14, 2010
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
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 Wrongful Death Case, and Issues Regarding Immunity, Against the Memphis Housing Authority
CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING AUTHORITY, ET AL. (Tenn. Ct. App. December 14, 2010)
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
Wednesday, December 8, 2010
Court Reviews Whether Plaintiffs Can Recover Damages from a Police Department and the Prior Operator of a Car in an Accident in which Neither Party was Directly Involved
SANDRA NEWMAN ET AL. v. RUBYE J. JARRELL ET AL. (Tenn. Ct. App. December 8, 2010)
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
Thursday, December 2, 2010
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
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
Court Reviews an Intentional Assault Case
DONALD M. MERRIWEATHER v. LUTHER SMITH, JR. (Tenn. Ct. App. December 2, 2010)
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
Tuesday, November 30, 2010
Court Reviews Whether Defendant’s Failure to Respond to a Motion to Dismiss was Proper
SHEMAIN SHERILLE RILEY, ET AL. v. EDITH SWIFT (Tenn. Ct. App. November 30, 2010)
The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the Circuit Court, but failed to have the case docketed within 45 days after filing the notice of appeal, as is required by Davidson County Local Rule 20(b).
The plaintiffs filed a motion to dismiss the appeal on the ground of untimeliness and to enforce the order of the General Sessions Court. The defendant did not respond to the motion, nor did she appear for the motion hearing. The Circuit Court granted the plaintiffs' motion and made the judgment of the General Sessions Court the judgment of the Circuit Court. The defendant then retained counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it was rendered. The Circuit Court denied the motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/rileys_113010.pdf
The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the Circuit Court, but failed to have the case docketed within 45 days after filing the notice of appeal, as is required by Davidson County Local Rule 20(b).
The plaintiffs filed a motion to dismiss the appeal on the ground of untimeliness and to enforce the order of the General Sessions Court. The defendant did not respond to the motion, nor did she appear for the motion hearing. The Circuit Court granted the plaintiffs' motion and made the judgment of the General Sessions Court the judgment of the Circuit Court. The defendant then retained counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it was rendered. The Circuit Court denied the motion. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/rileys_113010.pdf
Monday, November 29, 2010
Court Reviews a TN Labor Department Board of Review Denial of Unemployment Compensation Benefits
TOM AGNEW v. MERITAN, ET AL. (Tenn. Ct. App. November 29, 2010)
In this matter, the plaintiff appeals the decision of the Board of Review of the Tennessee Department of Labor and Workforce Development that he is disqualified from receiving unemployment compensation benefits pursuant to Tenn. Code Ann. section 50-7-301, as a result of his failure to establish that he had covered wages not provided by an unemployment workrelief program financed by a federal agency under Tenn. Code Ann. section 50-7-207(c)(5)(G). The trial court upheld the decision of the Board of Review. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/agnewt_112910.pdf
In this matter, the plaintiff appeals the decision of the Board of Review of the Tennessee Department of Labor and Workforce Development that he is disqualified from receiving unemployment compensation benefits pursuant to Tenn. Code Ann. section 50-7-301, as a result of his failure to establish that he had covered wages not provided by an unemployment workrelief program financed by a federal agency under Tenn. Code Ann. section 50-7-207(c)(5)(G). The trial court upheld the decision of the Board of Review. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/agnewt_112910.pdf
Saturday, November 27, 2010
The Adams Law Firm Obtains Verdict for Family Accused of Arson by Allstate
In July 2005, Peter and Tracy Fagan awoke to smoke and flames in their Sevierville, Tennessee home. They called 911 and tried to contain the fire with a fire extinguisher, but the home burned to the ground. They lost everything they owned including their children's pets, clothing and toys; family photos; personal and business records; and an uninsured Corvette Stingray which was located in the basement. The Fagans determined, and always contended, that the fire smoldered and ignited after Mrs. Fagan fell asleep while smoking on the first floor of the home before she retired to bed upstairs.
After the fire, Tracy Fagan, who was an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home. Instead of paying the claim, Allstate, within 48 hours of the fire, hired a fire origin expert and a private investigator and began an investigation of the Fagan family. In 2006, Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due their finances and marital problems.
In fact, at the time of the fire, the Fagans owned approximately $1 million worth of real properties and had near perfect credit. All their mortgages were current and they had recently been approved for purchase of another rental property.
When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.
In late October 2010, after a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans. The jury found that the Fagans did not set fire to their home and awarded them the full $193,778 due under their homeowner's policy. The jury denied Allstate's counter suit against the Fagans.
The Fagans were represented by Adams Law Firm attorneys Meridith Bond and Bryan Capps. The firm is proud to add the Fagans to the long list of clients we have helped in their exhausting fight against major insurance companies.
After the fire, Tracy Fagan, who was an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home. Instead of paying the claim, Allstate, within 48 hours of the fire, hired a fire origin expert and a private investigator and began an investigation of the Fagan family. In 2006, Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due their finances and marital problems.
In fact, at the time of the fire, the Fagans owned approximately $1 million worth of real properties and had near perfect credit. All their mortgages were current and they had recently been approved for purchase of another rental property.
When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.
In late October 2010, after a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans. The jury found that the Fagans did not set fire to their home and awarded them the full $193,778 due under their homeowner's policy. The jury denied Allstate's counter suit against the Fagans.
The Fagans were represented by Adams Law Firm attorneys Meridith Bond and Bryan Capps. The firm is proud to add the Fagans to the long list of clients we have helped in their exhausting fight against major insurance companies.
Wednesday, November 24, 2010
Court Reviews Whether Plaintiff, a Customer and Employee of Defendant, Can Recover Damages Outside Workers’ Compensation Law
JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL. (Tenn. Ct. App. November 24, 2010)
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
Tuesday, November 23, 2010
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
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
Friday, November 12, 2010
Court Reviews Whether a Case was Medical Malpractice or Common Law Negligence
KATRINA MARTINS, ET AL. v. WILLIAMSON MEDICAL CENTER (Tenn. Ct. App. November 12, 2010)
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Thursday, November 4, 2010
Court reviews trial court's denial to enforce a settlement agreement in a wrongful death case.
CATHERINE M. LOVE, as next friend and natural mother of Savannah Love, a minor child and daughter of Rex Bryan Peterson, deceased, ET. AL. v. DORIS LAKINS WOODS (Tenn. Ct. App. November 4, 2010)
This case arises from the trial court's denial of Plaintiff/Appellants' motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent. During negotiations, Appellee/Defendant's attorney proposed a settlement in the amount of Appellee's insurance policy limit, which Appellee's attorney misstated to be $100,000, when, in fact, the policy limit was $50,000.
The trial court denied Appellants' motion to enforce the $100,000 settlement finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement. We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee's attorney and the insurance company and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lovec_110410.pdf
This case arises from the trial court's denial of Plaintiff/Appellants' motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent. During negotiations, Appellee/Defendant's attorney proposed a settlement in the amount of Appellee's insurance policy limit, which Appellee's attorney misstated to be $100,000, when, in fact, the policy limit was $50,000.
The trial court denied Appellants' motion to enforce the $100,000 settlement finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement. We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee's attorney and the insurance company and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lovec_110410.pdf
Monday, November 1, 2010
TWCA determines the causation of two upper body injuries in a worker's compensation case
SANDRA JANE GARDNER v. RANDSTAD NORTH AMERICA, L.P. (TWCA November 1, 2010)
Employee alleged that she injured her left arm in the course of her employment. Employer denied liability, contending employee's injuries were not causally related to or arising from her employment.
The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed.
We affirm as to the arm injury but conclude that the evidence preponderates against the trial court's finding that employee's shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/gardners_110110.pdf
Employee alleged that she injured her left arm in the course of her employment. Employer denied liability, contending employee's injuries were not causally related to or arising from her employment.
The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed.
We affirm as to the arm injury but conclude that the evidence preponderates against the trial court's finding that employee's shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/gardners_110110.pdf
Court reviews summary judgment ruling in favor of a physician on the grounds of a patient's credibility.
TERESA L. WEAVER, ET AL. v. TRAVIS K. PARDUE, M.D., ET AL. (Tenn. Ct. App. November 1, 2010)
This appeal arises out of a primary care physician's alleged negligent and tortious treatment of a longtime patient. The trial court granted summary judgment in favor of the physician, questioning the credibility of the patient's allegations and holding in part that the physician's alleged conduct could not support a cause of action for intentional infliction of emotional distress. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/weavert_110110.pdf
This appeal arises out of a primary care physician's alleged negligent and tortious treatment of a longtime patient. The trial court granted summary judgment in favor of the physician, questioning the credibility of the patient's allegations and holding in part that the physician's alleged conduct could not support a cause of action for intentional infliction of emotional distress. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/weavert_110110.pdf
Thursday, October 28, 2010
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
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
Court reviews the dismissal of a motor vehicle-related personal injury suit based on the failure to provide prompt service of process to the Defendant.
ROBERT G. CRABTREE, JR., ET AL. v. JENNIFER L. LUND (Tenn. Ct. App. October 28, 2010)
Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County.
With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/crabtreer_102810.pdf
SWINEY concurring
http://www.tba2.org/tba_files/TCA/2010/crabtreer_CON_102810.pdf
Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County.
With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/crabtreer_102810.pdf
SWINEY concurring
http://www.tba2.org/tba_files/TCA/2010/crabtreer_CON_102810.pdf
Tennessee Supreme Court rules whether liens under the Hospital Lien Act attach to medical payment benefits paid pursuant to an insurance policy.
SHELBY COUNTY HEALTH CARE CORPORATION d/b/a REGIONAL MEDICAL CENTER v. NATIONWIDE MUTUAL INSURANCE COMPANY (Tenn. October 28, 2010)
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses.
Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt.
The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/shelbycountyhccCORR_102810.pdf
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses.
Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt.
The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/shelbycountyhccCORR_102810.pdf
Monday, October 25, 2010
Court reviews the denial of a motion for relief in a case involving a car accident.
STEPHEN BALL v. THEODORE SHOCKLEY (Tenn. Ct. App. October 25, 2010)
This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/balls_102510.pdf
This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/balls_102510.pdf
Friday, October 22, 2010
TWCA reviews compensability of injuries employees incurred while traveling from one job site to another
CALVIN D. ERVIN v. JONES BROS., INC., ET AL. (TWCA October 22, 2010)
This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/ervinc_102210.pdf
This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/ervinc_102210.pdf
Thursday, October 21, 2010
TWCA reviews findings of concurrent injuries and the burden of proof under TCA §50-6-242 in a Worker's Compensation Case
MELVIN HILL v. WHIRLPOOL CORPORATION (TWCA October 21, 2010)
After a plant closure, employee sought reconsideration of a prior workers'compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1).
The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole.
On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillm_102110.pdf
After a plant closure, employee sought reconsideration of a prior workers'compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1).
The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole.
On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillm_102110.pdf
TN Supreme Court reviews whether the lower courts properly dismissed vicarious liability claims against a hospital in a medical malpractice case.
JOANN ABSHURE ET AL. v. METHODIST HEALTHCARE-MEMPHIS HOSPITALS (Tenn. October 21, 2010)
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents.
After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law.
The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/abshurej_COR_102110.pdf
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents.
After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law.
The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/abshurej_COR_102110.pdf
Court reviews a ruling about insurance coverage of a van involved in an accident.
ALLSTATE INSURANCE COMPANY, v. DIANA LYNN TARRANT, et al. (Tenn. Ct. App. October 21, 2010)
Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries.
The Trial Court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds' personal policy. The Court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the insureds that reflected the van was then insured under the personal policy and not the commercial policy. The Court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/allstateins_102110.pdf
Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries.
The Trial Court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds' personal policy. The Court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the insureds that reflected the van was then insured under the personal policy and not the commercial policy. The Court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/allstateins_102110.pdf
Wednesday, October 6, 2010
Court Reviews a Slip and Fall Case
KATHY GORDON v. BY-LO MARKETS, INC., D/B/A/ BY-LO #10 (Tenn. Ct. App. October 6, 2010)
Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gordonk_100610.pdf
SUSANO, concurring:
http://www.tba2.org/tba_files/TCA/2010/gordonk_CON_100610.pdf
Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gordonk_100610.pdf
SUSANO, concurring:
http://www.tba2.org/tba_files/TCA/2010/gordonk_CON_100610.pdf
Court Reviews Whether Neutral Assaults Qualify an Employee for Benefits under TN Workers’ Compensation Laws.
ANA R. PADILLA v. TWIN CITY FIRE INSURANCE COMPANY (Tenn. October 6, 2010)
This appeal involves the workers' compensation liability of an employer for the unsolved fatal shooting of an employee on the employer's premises. The employee's surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee's Workers' Compensation Law.
Following a bench trial, the trial court denied the widow's claim for workers' compensation benefits. The court concluded that the employee's death was the result of a neutral assault and that the "street risk" doctrine was inapplicable because the employer's premises were not open to the public.
On appeal, the Special Workers' Compensation Appeals Panel declined to presume that neutral assaults on an employer's premises were compensable and affirmed the trial court's judgment. We granted the surviving spouse's petition for full court review. Like the Special Workers' Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer's premises. Accordingly, we affirm the judgment of the Special Workers' Compensation Appeals Panel and the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/padillaa_100610.pdf
WADE dissenting opinion:
http://www.tba2.org/tba_files/TSC/2010/padillaa_DIS_100610.pdf
This appeal involves the workers' compensation liability of an employer for the unsolved fatal shooting of an employee on the employer's premises. The employee's surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee's Workers' Compensation Law.
Following a bench trial, the trial court denied the widow's claim for workers' compensation benefits. The court concluded that the employee's death was the result of a neutral assault and that the "street risk" doctrine was inapplicable because the employer's premises were not open to the public.
On appeal, the Special Workers' Compensation Appeals Panel declined to presume that neutral assaults on an employer's premises were compensable and affirmed the trial court's judgment. We granted the surviving spouse's petition for full court review. Like the Special Workers' Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer's premises. Accordingly, we affirm the judgment of the Special Workers' Compensation Appeals Panel and the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/padillaa_100610.pdf
WADE dissenting opinion:
http://www.tba2.org/tba_files/TSC/2010/padillaa_DIS_100610.pdf
Monday, October 4, 2010
Court reviews whether state or federal law protects hospital records from disclosure.
JOHN P. KONVALINKA v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY (Tenn. Ct. App. October 4, 2010)
This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law.
On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/konvalinkaj.pdf
This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law.
On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/konvalinkaj.pdf
Friday, October 1, 2010
Court Reviews Whether Plaintiff Established the Elements of her Medical Malpractice Claim
EDNA N. ZULUETA v. WINIFRED LASSITER, M.D., OF THE LASSITER CLINIC (Tenn. Ct. App. October 1, 2010)
Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that Plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/zuluetae_100110.pdf
Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that Plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/zuluetae_100110.pdf
Court Reviews Immunity from Liability under the Tennessee Equine Activities Act
KERRY JORDAN v. YMCA OF MIDDLE TENNESSEE, ET AL. (Tenn. Ct. App. October 1, 2010)
A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The trial court granted the motion. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/jordank_100110.pdf
A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The trial court granted the motion. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/jordank_100110.pdf
Thursday, September 30, 2010
Court reviews dismissal of a wrongful death action in an insurance liability case.
MARY F. LAWSON v. BRAD LAWSON (Tenn. Ct. App. September 30, 2010)
Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/lawsonm_093010.pdf
Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/lawsonm_093010.pdf
Court Reviews Whether Plaintiff Should be Allowed to Reopen Proof in a Motor Vehicle Accident Case
WILLIAM J. REINHART v. GEICO INSURANCE (Tenn. Ct. App. September 30, 2010)
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion.
The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/reinhartw_093010.pdf
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion.
The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/reinhartw_093010.pdf
Tuesday, September 28, 2010
TWCA Reviews Whether the Trial Court Properly Excluded an MIR Report in a Worker’s Compensation Case
STEVEN WILLIAMS v. UNITED PARCEL SERVICE ET AL. (TWCA September 28, 2010)
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn. Code Ann. section 50-6-204(d)(5) (Supp. 2009).
The trial court sustained the employee's objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg.
On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/williamss_092810.pdf
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn. Code Ann. section 50-6-204(d)(5) (Supp. 2009).
The trial court sustained the employee's objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg.
On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/williamss_092810.pdf
Friday, September 24, 2010
Court Reviews Whether Insurance Company’s Motion to Dismiss was Properly Granted in an Automobile Accident Case
SHEILA BROWN v. RICO ROLAND (Tenn. Ct. App. September 24, 2010)
The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that Plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. section 56-7-1206.
Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits.
Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming Plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and Plaintiff appealed.
We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because Plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and Plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/browns_092410.pdf
The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that Plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. section 56-7-1206.
Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits.
Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming Plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and Plaintiff appealed.
We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because Plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and Plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/browns_092410.pdf
Thursday, September 23, 2010
Court reviews various issues regarding disclosing the amount of damages in a medical malpractice case.
AMANDA ELLIOTT v. R. MICHAEL COBB (Tenn. September 23, 2010)
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for non-economic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/elliota_092310.pdf
KOCH concurring
http://www.tba2.org/tba_files/TSC/2010/elliota_CON_092310.pdf
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for non-economic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/elliota_092310.pdf
KOCH concurring
http://www.tba2.org/tba_files/TSC/2010/elliota_CON_092310.pdf
TWCA Reviews the Apportionment of an Award for Permanent Partial Disability
SCHERING PLOUGH HEALTHCARE PRODUCTS, INC. v. JEROME D. PLUMLEY (TWCA September 23, 2010)
Employee was injured when a forklift ran over his foot. This injury also implicated Employee's ankle and lower leg. The issues presented to the trial court were the extent of permanent partial disability benefits and whether the award should be apportioned to the foot or to the leg. The trial court found that the award should be apportioned to the leg and awarded 9% permanent partial disability to the leg.
Employee has appealed, contending that the award should have been apportioned to the foot and thus not be subject to the "cap" contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008). We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/scheringplough_092310.pdf
Employee was injured when a forklift ran over his foot. This injury also implicated Employee's ankle and lower leg. The issues presented to the trial court were the extent of permanent partial disability benefits and whether the award should be apportioned to the foot or to the leg. The trial court found that the award should be apportioned to the leg and awarded 9% permanent partial disability to the leg.
Employee has appealed, contending that the award should have been apportioned to the foot and thus not be subject to the "cap" contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008). We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/scheringplough_092310.pdf
TWCA Reviews whether Trial Court Properly Found Permament Total Injury of an Employee’s Previous Injury
LINDA PRINCINSKY v. PREMIER MANUFACTURING SUPPORT PREMIER MANUFACTURING SUPPORT SERVICES ET AL. (TWCA September 23, 2010)
In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).
In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.
The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf
In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).
In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.
The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf
Wednesday, September 22, 2010
Court Reviews Insurance Coverage in a Case Involving an Uninsured Motorist
FLOYD L. FLETCHER, ET AL. v. ASHLEY R. WHITE, ET AL. (Tenn. Ct. App. September 22, 2010)
Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf
Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf
Tuesday, September 21, 2010
Court Reviews Liability and a Directed Verdict Ruling in a Property Insurance Case
ENGLISH MOUNTAIN RETREAT, LLC, ET AL. v. SUSANNE CRUSENBERRY-GREGG, ET AL. (Tenn. Ct. App. September 21, 2010)
Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/englishmountain_092110.pdf
Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/englishmountain_092110.pdf
Monday, September 20, 2010
Court Reviews Evidence Used in an Automobile Accident Case
ROBIN R. RIPPY AND DARRELL RIPPY v. CINTAS CORPORATION SERVICES, INC., ET AL. (Tenn. Ct. App. September 20, 2010)
Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle. Defendants appeal a jury award asserting there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rippyr_092010.pdf
Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle. Defendants appeal a jury award asserting there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rippyr_092010.pdf
Friday, September 17, 2010
Supreme Court Reviews a Wrongful Death Claim in a Case Involving the Death of a Child
CANDACE MULLINS v. STATE OF TENNESSEE (Tenn. September 17, 2010)
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
Wednesday, September 15, 2010
Court Reviews Summary Judgment Ruling in an Insurance Case Involving Misrepresentation
CECILIA OWENSBY, ET AL. v. STATE FARM FIRE AND CASUALTY COMPANY, ET AL. (Tenn. Ct. App. September 15, 2010)
Cecilia and Charles Owensby had a homeowners insurance policy issued by State Farm Fire and Casualty Company ("State Farm"). After their house burned down, the Owensbys filed a claim pursuant to the policy. State Farm eventually denied the claim, asserting that Cecilia Owensby had made four material misrepresentations when applying for the insurance and that each of these misrepresentations increased State Farm's risk of loss. The plaintiffs asserted that any inaccurate information contained on the application was the fault of the insurance agent who filled out the application on Cecilia Owensby's behalf. The plaintiffs sued both State Farm and Darius Miller ("Miller"), the insurance agent. State Farm and Miller filed a motion for summary judgment, which the Trial Court granted. The plaintiffs appeal the grant of summary judgment. We modify the judgment of the Trial Court and, as modified, affirm the grant of summary judgment to the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/owensbyc_091510.pdf
Cecilia and Charles Owensby had a homeowners insurance policy issued by State Farm Fire and Casualty Company ("State Farm"). After their house burned down, the Owensbys filed a claim pursuant to the policy. State Farm eventually denied the claim, asserting that Cecilia Owensby had made four material misrepresentations when applying for the insurance and that each of these misrepresentations increased State Farm's risk of loss. The plaintiffs asserted that any inaccurate information contained on the application was the fault of the insurance agent who filled out the application on Cecilia Owensby's behalf. The plaintiffs sued both State Farm and Darius Miller ("Miller"), the insurance agent. State Farm and Miller filed a motion for summary judgment, which the Trial Court granted. The plaintiffs appeal the grant of summary judgment. We modify the judgment of the Trial Court and, as modified, affirm the grant of summary judgment to the defendants.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/owensbyc_091510.pdf
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