Court reviews whether a claim against an assisted living facility was a negligence or a medical malpractice claim.

CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL. (Tenn. Ct. App. August 23, 2011)

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.

The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.

Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.

We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.

We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf

Court reviews the denial of a firefighter's on-the-job injury benefits for his hypertension and heart disease

PAUL PITTMAN v. CITY OF MEMPHIS (Tenn. Ct. App. August 18, 2011)

Petitioner firefighter appeals denial of on-the-job injury benefits by the City of Memphis. We affirm.

Background:
This dispute involves the application of the presumption contained in Tennessee Code Annotated § 7-51-201 that hypertension and injury to the heart and/or lungs sustained by a police officer or firefighter is job-related.

Before joining the Memphis Fire Department in February 1995, Mr. Pittman underwent a preemployment physical examination that did not reveal signs of hypertension or heart disease. In 1996, he was diagnosed with hypertension and in April 1996 the City admitted Mr. Pittman into the Heart, Hypertension, Lung Program, which entitled him to benefits under the City’s On-the-Job-Injury (“OJI”) policy. He has been receiving OJI benefits for hypertension since April 25, 1996.

In July 2005, Mr. Pittman was hospitalized for chest pain afterfeeling fatigued at work. On July 15, 2005, he underwent a coronary angiography which revealed a 90 percent blockage of Mr. Pittman’s left anterior artery. Mr. Pittman was diagnosed with coronary artery disease and underwent surgery.

On July 22, 2005, Mr. Pittman filed an OJI report seeking admission into the HHL Program for heart disease. Pursuant to City policy, Mr. Pittman’s medical records were reviewed by three physicians. One of the physicians, Jesse. T. Davis, Jr., M.D. (Dr. Davis), stated that he found no causal connection between Mr. Pittman’s occupation as a firefighter and his coronary artery disease. Based on Dr. Davis’ statement, the City denied Mr. Pittman’s claim. Mr. Pittman appealed denial of his claim.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/pittmanp_081811.pdf

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

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

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

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

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

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

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

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

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

TN Supreme Court clarifies the standards that apply to the locality rule for expert medical witnesses

DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS (Tenn. August 11, 2011)

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010).

Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community.

In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf

TWCA reviews the trial court's adoption of an evaluating physician's impairment rating as the basis for an award of permanent disability benefits

MICHAEL SCHWAMB v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA August 10, 2011)

In this workers' compensation case, the employee had a compensable back injury in 2008. His doctor assigned 19% permanent anatomical impairment for the injury, based upon the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

He had previously settled a claim for a compensable back injury in 1996. That injury resulted in a 15% permanent impairment according to the Fourth Edition of the Guides, then in effect.

Based upon those ratings, the treating physician for the 2008 injury apportioned 4% of the total 19% impairment to the more recent injury. An evaluating physician used the Sixth Edition to rate both injuries and opined that the impairment for the 2008 injury was 13% to the body as a whole.

The trial court adopted the evaluating physician's rating and based its award of permanent disability benefits on it. The employer has appealed, arguing that the trial court erred by adopting the evaluating physician's rating. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/schwambm_081011.pdf

Court reviews a claim against an employer for retaliatory discharge

FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (Tenn. Ct. App. August 9, 2011)

Defendant allegedly suffered an on-the-job injury to his knees over the course of several years, and Plaintiffs paid workers' compensation benefits on his behalf. However, after Defendant was videotaped building a barn, his employment was terminated and suit was filed against him for fraud. Defendant then filed a counter-complaint alleging, among other things, retaliatory discharge. The trial court granted Plaintiffs' motion for summary judgment with regard to the retaliatory discharge claim, and we affirm and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/federated_080911.pdf

TN Supreme Court Reviews a Workers' Compensation Award Based on a Rating Computed in a Settlement Agreement Rather than on a Physician's Assessment

ROBERT LAZAR v. J.W. ALUMINUM (Tenn. July 26, 2011)

An employee settled his claim for workers' compensation benefits. The settlement stated that the award of vocational disability benefits to which the parties agreed was not based on the medical impairment rating of either the treating physician or the employee's independent medical examiner.

After the employee was laid off, he sought reconsideration of his benefits pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) (2008). The chancery court declined to use the impairment rating of the treating physician or the independent medical examiner. The court further declined to base its increased award on a rating from an independent medical evaluation of the employee conducted after the settlement by a physician listed in the Medical Impairment Rating registry of the Tennessee Department of Labor. The chancery court instead awarded additional permanent partial disability benefits based on an impairment rating computed from the percentage of permanent partial disability reflected in the settlement. The employer appealed. We affirm the chancery court.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lazarr_072611.pdf

Court reviews a negligence case involving multiple continuances and a subsequent ruling against the Plaintiff based on comparative fault

FREDDIE DAVIS v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. July 29, 2011)

This is a negligence action. Plaintiff/Appellant asserts that Defendant/Appellee is liable for personal injuries he allegedly sustained when he fell while walking down the steps at the Shelby County courthouse. Due to Appellant's incarceration, the trial court granted three continuances; however, Appellant's request for a fourth continuance was denied.

Following a hearing, the trial court found that Appellant had failed to meet his burden to show negligence on the part of the Appellee, and further concluded that, if there was negligence in the case, Appellant was at least fifty percent at fault so as to bar recovery. Appellant appeals both the denial of his fourth motion for a continuance and the trial court's ruling in favor of Appellee. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/davisf_072911.pdf

Court reviews a wrongful death case involving a claim for negligent infliction of emotional distress

JERRY GARRISON, et al., v. ANDY E. BICKFORD, et al. (Tenn. Ct. App. July 29, 2011)

Plaintiffs brought this action for the wrongful death of their son, and also for their damages arising from "negligent infliction of emotional distress." State Farm Mutual Insurance Company filed a Motion for Partial Summary Judgment on the grounds that its policy afforded no coverage for a negligent infliction of emotional distress. The Trial Court overruled the Motion but proposed a Rule 9 appeal, which this Court granted. We reverse the Trial Court on this issue and grant the summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/garrisonj_072911.pdf

Court Reviews Whether a Drainage Grate Created a Dangerous Condition on a Highway

BETH L. WINELAND v. CITY OF CLEVELAND, TENNESSEE ET AL. (Tenn. Ct. App. July 28, 2011)

Beth L. Wineland, the sole plaintiff, sustained serious injuries when the front wheel of her bicycle fell into the open slots of a metal drainage grate ("the subject grate" or "the old style grate") situated near a curb of State Highway 60. The slots on the subject grate run parallel with the direction of traffic. The subject grate is inside the municipal boundaries of the City of Cleveland. The plaintiff made a claim against the State of Tennessee in the Claims Commission and filed this action against the City of Cleveland in the trial court. The claim against the State was consolidated with this action for trial. The plaintiff alleges that the old style grate constitutes a dangerous condition on the highway and that both the City of Cleveland and the State were negligent in maintaining the highway. The trial court determined that neither defendant had a duty to change the grate and dismissed the case. The plaintiff appeals only as to the State. We reverse the judgment and remand for a determination of damages.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/winelandb_072811.pdf

TWCA Reviews Whether Employee is Entitled to Partial or Total Temporary Benefits

JAMES E. STEM v. THOMPSON SERVICES, INC. ET AL. (TWCA July 26, 2011)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(3)(3) (2008) for a hearing and report of findings of fact and conclusions of law.

The appeal involves a dispute regarding the type and amount of temporary benefits an employee working two jobs is entitled to following an injury at one of the employee's jobs. After sustaining a work-related injury that required the employee to discontinue one but not both of his jobs, the employee filed suit in the Circuit Court for Rutherford County.

After the trial court awarded temporary total disability benefits, the employer appealed and asserted that the employee was not entitled to temporary total disability benefits because he continued to work at his second job. We conclude that the employee is entitled to temporary partial, rather than temporary total, disability benefits and remand the case to the trial court to determine the amount of these benefits.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/stemj_072611.pdf

Court Reviews an Employee's Impairment Rating Based on His County-Employer's Workers' Compensation Plan

WILLIE J. HIGH v. SUMNER COUNTY, TENNESSEE (Tenn. Ct. App. July 25, 2011)

An employee of Sumner County was injured on the job and sought disability benefits pursuant to the Sumner County compensation plan. The employee's physicians initially gave him an anatomical impairment rating of 20%, but later determined that the employee was totally disabled and could not work. The County treated the employee's disability as a permanent partial disability and offered the employee a lower settlement than if the employee's disability were treated as a total permanent disability. The employee appealed the initial offer to the administrative review board, which upheld the initial offer of settlement.

The employee petitioned the chancery court for a writ of certiorari and asked the court to review the administrative decision and rule that it was arbitrary and capricious. The chancery court found the review board should have considered whether the employee was totally disabled based on the evidence in the record and remanded the case back to the review board for this purpose. The County appealed, and we affirm the trial court's decision. The plain language of the county plan does not support the administrative decision not to consider the employee's total disability in determining the compensation he is entitled to receive.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/highw_072511.pdf

TWCA Reviews an Award of Permanent Total Disability Benefits to an Employee Whose Physician Used the Medical Impairment Registry Process

COURIER PRINTING COMPANY ET AL. v. WANDA SIMS, EX REL ROBERT STEVE BLY ET AL. (TWCA July 21, 2011)

In this Workers' Compensation case, the trial court held that the employee had sustained a gradual injury to his lower back, and that he was permanently and totally disabled as a result of that injury. The employer has appealed, contending that the trial court erred by permitting the employee to use a physician who provided an impairment rating through the Medical Impairment Registry process as a medical expert on the issue of causation and by finding that the employee sustained a compensable injury. In the alternative, the employer contends that the trial court erred by awarding permanent total disability, and also in its alternative finding that the employee had proven three of the four elements set out in Tennessee Code Annotated section 50-6-242, and was thereby able to recover a permanent partial disability award in excess of six times the medical impairment. We find no error and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/courierprinting_072111.pdf

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

DARRYL J. MAYTON v. WACKENHUT SERVICES, INC. (TWCA July 19, 2011)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The issue presented in this case is whether the employee's request for a benefit review conference was filed more than one year after the employee had knowledge that his occupational disease was caused by his employment.

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

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

TWCA Reviews whether a physician's rating failed to comply with the AMA Guidelines and whether, therefore, the employee's award was excessive

JACQUELINE MORRIS v. JACKSON CLINIC PROFESSIONAL ASSOCIATION (TWCA July 19, 2011)

In this workers' compensation action, the employee sustained a compensable injury to her shoulder. Her initial treating physician assigned a 9% impairment to the body as a whole. After additional surgery, her subsequent treating physician assigned a 6% impairment to the body as a whole. An evaluating physician assigned a 17% impairment. The trial court chose the evaluating physician's impairment, and awarded the employee 25.5% permanent partial disability ("PPD") to the body as a whole. The employer has appealed, arguing that the evaluating physician's rating did not comply with the AMA Guides and that the award therefore is excessive. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morrisj_071911.pdf

'Due care' law went into effect July 1

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

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

DuPont Sued Over Imprelis

A Michigan golf course has sued DuPont over the herbicide Imprelis. The suit alleges that the herbicide kills mature trees in and around landscaping. If you have had a similar issue you believe is related to Imprelis, call The Adams Law Firm. The firm is following consumer complaints about Imprelis and the EPA's investigation of the herbicide.

TWCA reviews whether an employer's motion for a medical examination is reasonable

PEFFERY IRONS v. K & K TRUCKING, INC. ET AL. (TWCA July 14, 2011)


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sustained an injury which resulted in a court-approved workers' compensation settlement. His authorized physician later recommended medical treatment. The employer's utilization review provider denied approval of the proposed treatment. The employer filed a motion for a medical examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) which is required if reasonable. The trial court found the employer's request to be unreasonable and denied the motion. The employer has appealed. We reverse the trial court's order and remand for entry of an order granting the motion. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/ironsj_071411.pdf

TWCA reviews whether an employer could receive reimbursement of payments made prior to the execution of a compromise & release agreement

LIBERTY MUTUAL INSURANCE CO. ET AL. v. RICHARD WARNOCK ET AL. (TWCA July 14, 2011)



This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee suffered an injury which the employer denied was in the course of employment. The employee filed a request for assistance with the Tennessee Department of Labor and Workforce Development. The Department ordered the employer to pay temporary disability benefits and medical expenses for the employee's injury pursuant to Tennessee Code Annotated section 50-6-238(a)(2)(3).

Subsequently the employer, its workers' compensation carrier and the employee entered into a compromise and release agreement in Pennsylvania pursuant to which the employee was paid $130,000. The employer filed this action against the employee and the Department of Labor requesting reimbursement of payments made pursuant to the Department's order, as permitted by section 50-6-238(b). The trial court granted the Department's motion for summary judgment and dismissed the action. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/libertymutual_071411.pdf

Bryan L. Capps Voted Top Attorney for Motorcycle Personal Injury Cases Cityview Magazine 2011

Bryan L. Capps of Knoxville has been named by Cityview Magazine one of Knoxville's top attorneys representing injured motorcycle riders.  Mr. Capps was recently named  President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He has spent his entire career representing seriously injured motorcycle riders from Tennessee and around the country.

Adams Law Firm Attorney Named President-Elect of Tennessee Association for Justice

Bryan L. Capps of the Knoxville-based Adams Law Firm has been named President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He will serve his one year term along with the new TAJ President Keith Williams of Lebanon, Tennessee.  TAJ
advocates for accountability and the constitutional rights of all citizens and works to protect civil justice in the state.

Court reviews whether employee's motion for medical treatment was reasonable under the circumstances

BARBARA ANN HARVILLE v. EMERSON ELECTRIC COMPANY (TWCA July 6, 2011)


The employee sustained a compensable injury to her arm in 2001. In 2003, she entered into a settlement with her employer that preserved her right to receive reasonable and necessary medical treatment for the injury. In April 2008, the employee's authorized treating physician recommended a diagnostic test. The employer submitted the recommendation to its utilization review provider, which declined to approve the recommended test. The employee and her physician were notified of the denial in May 2008.

In June 2009, the employee filed a petition for contempt seeking to have the trial court order the recommended test. The trial court treated the petition as a motion for medical treatment pursuant to Tennessee Code Annotated section 50-6-204(b)(2) (2008). The trial court found the recommended test to be reasonably necessary for the treatment of the injury, ordered the employer to authorize it, and awarded the employee attorney's fees. The employer appealed. We affirm the judgment of the trial court. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/harvilleb_070611.pdf

Court reviews whether a school resource officer exercised reasonable care when displaying graphic pictures in a case involving emotional distress

MARLA H., individually and as next best friend to her daughter MORIAH F. H. v. KNOX COUNTY, ET AL. (Tenn. Ct. App. July 1, 2011)



This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving.

The trial court found the City of Knoxville liable for the student's emotional injuries because the school resource officer who distributed the photographs intended to evoke an emotional response. We conclude it was generally foreseeable that providing graphic accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court's finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/marlah_070111.pdf

40 Wrong Site Surgeries Per Week in the US

According to doctors, hospitals and health agencies, wrong site surgeries should never occur.  Yet an estimated 40 times per week a surgery occurs on the wrong limb, organ or other site in patients across the U.S.  Read how surgeons, nurses and hospitals are working to eliminate these errors which are the most blatant and easily avoided form of medical malpractice.

TN Supreme Court Reviews the Jury Instructions in a Strict Products Liability Case Involving Asbestos

EVELYN NYE v. BAYER CROPSCIENCE, INC., ET AL. (Tenn. June 7, 2011)



In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband's employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products' health risks.

The jury found that the seller was at fault, but that her husband's employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury.

On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products' manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings.

This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.


Opinion available at:

http://www.tba2.org/tba_files/TSC/2011/nye_correx_061511.pdf



HOLDER concurring in part and dissenting in part:

http://www.tba2.org/tba_files/TSC/2011/nyee_DIS_060711.pdf

Court reviews the denial of TennCare coverage for orthodontic braces

RACHEL LEE EX REL. REBECCA LEE v. MARK EMKES, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION (Tenn. Ct. App. June 28, 2011)



Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces.

Upon review by the Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed.

We affirm the trial court's finding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner's condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court's decision to affirm the agency's denial of orthodontic braces.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/leer_062811.pdf

Court Reviews Whether the Statute of Limitations Barred the Transfer of a GTLA Claim to the Proper Venue

JOHN HAYNES v. RUTHERFORD COUNTY ET AL. (Tenn. Ct. App. June 28, 2011)

The issue in this matter is whether Tenn. Code Ann. section 16-1-116 ("the Transfer Statute") tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction.

Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred.

We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/haynesj_062811.pdf

Court Reviews a Summary Judgment Motion in a Medical Malpractice Case Related to Treatment and Fraudulent Billing of a Patient

DEBORAH LYNN DAVIS v. JACK E. SCARIANO, JR., M.D. ET AL. (Tenn. Ct. App. June 28, 2011)

The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano."

Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf

Supreme Court gives drug companies two thumbs up

Supreme Court Sides with Pharmaceutical Industry in Two Cases (L.A. Times)

The U.S. Supreme Court gave the pharmaceutical industry a pair of victories, shielding the makers of generic drugs from most lawsuits by injured patients and declaring that drug makers have a free-speech right to buy private prescription records to boost their sales pitches to doctors.

Read the full story at the Los Angeles Times' Website

TN Supreme Court Reviews Whether a Construction-Related Injury was Negligence Subject to the Governmental Tort Liability Act

DALTON REB HUGHES ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE ET AL. (Tenn. May 24, 2011)

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed.

The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee's conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/hughesd_052411.pdf

Tennessee Civil Justice Act 2011 - A High Price for Hollow Promises

Last week Tennessee Governor Bill Haslam signed into law the Tennessee Civil Justice Act of 2011.   The Act limits jury awards for non-economic damages in cases of injury or death to no more than $750,000 and limits punitive damages, intended to punish intentional or reckless behavior, to a maximum of $500,000. According to Governor Haslam, the Act will bring predictability and certainty to businesses calculating potential litigation costs thereby attracting new businesses and creating jobs.

The governors of Texas, Mississippi, Alabama and other states passed similar legislation by promising the same new businesses and new jobs.  They failed.  Time and truthful statistics will also prove Governor Haslam’s promises hollow.  In the interim, Tennessee citizens have paid a very high price to make businesses and insurers feel more comfortable in projecting income and profits.  That price includes having legislators they will never meet put a dollar value on their lives; losing the ability to punish and deter companies who act recklessly; and surrendering part of their 7^th Amendment right to a civil jury trial.  A recent tragedy to our north helps put the high cost of this Act in perspective. 

On the morning of August 27, 2006, Delta’s Comair flight 191 prepared to depart from Bluegrass Airport in Lexington, Kentucky.  The air traffic controller on duty cleared the Comair captain for take off on Runway 22.  Instead the flight’s first officer mistakenly taxied the plane onto Runway 26 and hit the throttle.  Seconds later the plane plowed into an embankment, rifled through a perimeter fence, and exploded killing 49 of the 50 passengers onboard. 

To get comfortably airborne, Comair 191 needed nearly all 7,000 feet of Runway 22.  Runway 26 was only 3,500 feet long.  The sole FAA air traffic controller in the tower did not see the Comair pilot’s error as he taxied onto the fatally short runway.  A second controller might have warned the pilot in time to avoid disaster.  But, in violation of FAA rules, no other controller was on duty.    

An NTSB investigation concluded that Comair and the FAA were negligent in causing the crash.  It primarily determined that the Comair pilots completely disregarded their training in identifying the approved runway as they taxied onto Runway 26.  As a result, the families of the passengers filed civil suits against Comair and the FAA for the wrongful death of their loved ones.  The suits asked for punitive damages against Comair for what the presiding judge called reprehensible behavior by its pilots. 

Faced with a jury trial and punitive damages, Comair settled nearly every case.  It preferred not to have a jury carefully learn of and value all the lives of the passengers including a newly wed couple who never arrived at their honeymoon destination.  In order to avoid future crashes and punitive damages, Comair then made significant changes in pilot and controller training and operational policies.  In short, the civil justice system, with only the prospect of a jury verdict, worked in compensating the survivors and better protecting future airline passengers.  

Now consider the Comair case if the victims families were subject to the new Tennessee Civil Justice Act.  The value of each passenger’s life, irrespective of age, would be his or her lost earnings plus up to $750,000.  If Comair was punished by the Act’s maximum $500,000 in punitive damages for every life lost, it would pay less than $25 million dollars.  That would likely be no deterrent at all for a company which reported pre-tax profits of $1.8 billion in 2007.  Comair would have no real financial motivation to make operational changes aimed at avoiding a similar crash and loss of life.  The survivors would not be made whole and future passengers would remain at risk of the same fate. 

The difference between the proper outcome in the Comair case and the outcome under the new Act is quite simply the jury’s unfettered judgment.  In his 1789 speech to the first U.S. Congress, James Madison, the architect of the U.S. Constitution and champion of civil suits, said “trial by jury . . . is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”  Madison and the other Founders, wanted to protect their lives, livelihoods and property.  They feared arbitrary and capricious judgment, like that once imposed by the English monarchy, with regard to their affairs. Madison firmly believed the only acceptable method of justice involved a jury of peers. 

Based on these convictions and Madison’s proposal, Congress adopted and the states ratified the 7^th Amendment which guarantees that “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

By limiting the value of human life and the deterrent value of punitive damages, Tennessee legislators substituted their uninformed, arbitrary judgment for that of a jury. 

In doing so, they subjected Tennesseans to Madison’s greatest fear – arbitrary judgments concerning life and property.  It was a high price indeed for a hollow promise. 

Consumer Protection Laws Help Tennesseans Recover

Americans pursuing dreams and goals through education, work, or the growth of small and large businesses want to compete on a level playing field.  They want to be treated honestly and fairly by competitors, insurers, state and local governments, vendors, and customers.  Of course history informs us that not all individuals or companies play by the rules.  Eventually every business faces the breach of an important contract, a bad debt, a denied insurance claim or some other legal matter.

Due to challenging economic times, many individuals and businesses are facing a more insidious threat than broken contracts.  They are increasingly being damaged by unfair, deceptive and outright fraudulent practices by those with whom they do business.  Fortunately, Tennessee law provides the legal weapons needed to combat reprehensible behavior by those who knowingly take advantage of consumers in the marketplace. 

These weapons include the Tennessee Consumer Protection Act (TCPA) and bad faith insurance laws.  The TCPA is often misunderstood because it is entitled a “consumer” act.  It is important to understand that the TCPA considers both individuals and businesses to be consumers.  In fact, a large portion of all TCPA claims involve businesses suing businesses for unfair or deceptive practices.  The Act is important because when a consumer has been damaged by the unfair, deceptive or fraudulent actions of another, a court may invoke it to award actual damages, punitive damages and attorneys fees.  In the hands of a skilled attorney, the TCPA can be used to fully compensate a consumer and deter a bad actor from engaging in further deceptive behavior. 

A recent case handled by my firm is an excellent example of how the TCPA might apply to you or your business.  Our client was a young, aspiring country music singer.  She paid a Nashville record producer for song production and further promotion of her career.  He represented himself as an accomplished producer with good connections at the major records labels.  The producer breached the contract by failing to produce the promised songs and results.  However, we argued that the producer’s repeated and threatening requests for funds and his early and utter refusal to perform the contract suggested an intention to defraud our client from the outset.  The court agreed and rendered a six figure verdict including punitive damages and attorney fees under the TCPA.  A simple claim for breach would not have made the young woman whole or deterred the producer from such future conduct.

While aspiring artists cannot buy insurance against unscrupulous producers, many consumers buy insurance to protect themselves from life-altering events such as natural disasters, theft and fraud.  The premiums are expensive, but consumers are willing to pay them for the promise of being covered for unexpected and potentially catastrophic losses. 

Unfortunately, insurers sometimes place their economic interests ahead of their policyholders’ interests and wrongfully refuse to pay valid claims.  When an insurer unjustifiably refuses to pay a valid claim it may be found to have breached the insurance policy or to have acted in bad faith

Another recent case handled by my firm is a good example of how you or your company could be affected by an insurer’s breach or bad faith.  Our clients, the Fagans, were wrongfully accused by Allstate of burning down their own home. 

In July 2005, Peter and Tracy Fagan awoke to smoke and flames in their Sevierville, Tennessee home.  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 parked in the basement.  The Fagans always contended that the fire was caused when Mrs. Fagan fell asleep while smoking on the first floor of the home.

After the fire, Mrs. Fagan, who was not just a policyholder but 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 immediately hired a fire origin expert and a private investigator.  Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due alleged financial and marital problems.

In reality, at the time of the fire, the Fagans owned approximately $1 million worth of real property 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.

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 amount due under their homeowner's policy.  The jury denied Allstate's counter suit against the Fagans. 

The facts of Fagan v. Allstate are informative as to just how far an insurer may go in trying to avoid a valid claim.  Hopefully you will never fall victim to such unscrupulous behavior.  But always remember that Tennessee’s civil justice system exists to help you prosecute those who would harm you and your business.  If the case is pursued competently and aggressively, you may be able to recover not only your actual losses, but you may recover your litigation costs and have penalties imposed which deter a defendant from harming others. 

Tennesseans Allege Scam by Big World Vacations

The Tennessean reports that many consumers in Tennessee and other states believe they may have been misled or outright scammed by Nashville-based vacation company Big World Vacations.  The Adams Law Firm is investigationg such claims for Tennessee consumers.  If you purchased a vacation package from Big World Vacations, now doing business as Big World/BTM, and need legal advice, call a consumer protection attorney with The Adams Law Firm at 865-531-6440 or 615-585-5415. Our attorneys are experienced in consumer protection law and can answer any questions you might have with regard to your Big World Vacations contract or purchase. 

Court Reviews a Finding of No Fault in a Case Involving a Motor Vehicle Accident

BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T (TN) v. SHUNDRA Y. YOUNG and MAUREEN F. KINSELLA (Tenn. Ct. App. June 21, 2011)

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants' answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court's allowance, we affirm the judgment of the trial court.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/bellsouth_062111.pdf

TWCA Reviews Whether a Hydrotherapy Tub Falls Within the "Future Medical Treatment" Provision of a Workers' Compensation Settlement

JERRY LINDSEY v. TIM REEVES D/B/A TIM'S TREE SERVICE (TWCA June 16, 2011)



The employee suffered a compensable spinal cord injury. He settled his workers' compensation claim with his employer in 2007. The settlement provided for future medical treatment in accordance with Tennessee Code Annotated section 50-6-204(a) (2008). In 2009, the employee sought authorization and payment for a hydrotherapy tub. His employer declined to authorize installation of the tub. The employee filed a motion for authorization of medical care in February 2010 and supported the motion by attaching a note from his authorized treating physician that he would "benefit" from use of the tub. The trial court granted the motion. On appeal, we reverse.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lindseyj_061611.pdf

Court Reviews a Motion to Dismiss for Failure to State a Claim in a Case Involving a Hospital

MCCALL BRISTER v. HCA HEALTH SERVICES OF TENNESSEE, ET AL. (Tenn. Ct. App. June 9, 2011)



This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf

TWCA reviews the percentage of permanent partial disability allocated by the trial court

DANIEL CLAY LEWIS v. DANA HOLDING CORPORATION (TWCA June 8, 2011)


An employee sustained an injury to his shoulder at work. After a surgical repair, he briefly returned to work but was laid off prior to reaching maximum medical improvement. He filed a complaint in chancery court seeking workers' compensation benefits from his employer. His treating physician assigned no impairment rating and placed no restrictions on his activities. An evaluating physician assigned 6% impairment to the body as a whole and recommended that Mr. Lewis avoid certain activities.

The trial court awarded 36% permanent partial disability to the body as a whole. The employer has appealed, contending that the award is excessive. We modify the judgment to award 24% permanent partial disability to the employee. We also conclude that local Rule 17A of the Chancery Court of the 28th Judicial District of Tennessee conflicts with Tennessee Rule of Civil Procedure 58. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lewisd_060811.pdf

TWCA reviews whether an employee was injured during the usual course of his employment

VICTOR POWELL ET AL. v. BRETT MARTER, INDIVIDUALLY and D/B/A QUALITY FLOOR COVERING (TWCA June 7, 2011)



This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee filed a workers' compensation action contending his injury while cutting trees at his employer's home was in the usual course of his employment at his employer's floor covering business. The trial court held that employee's work was casual employment not in the usual course of his employer's business as defined by TCA section 50-6-106(2) and not covered by the workers' compensation statute. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/powellv_060711.pdf

TWCA reviews a motion to dismiss for failure to prosecute in a workers' compensation case

MASON FISCHER v. SVERDRUP TECHNOLOGY, INC. (TWCA June 7, 2011)



This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee filed a Worker's Compensation action on August 22, 2003 alleging a compensable injury in the course of his employment with his employer in December 1998. The employer filed a motion to dismiss for failure to prosecute under Tenn. R. Civ. P. 41.02.

The trial court entered an order in September 2008, stating that the employer was withdrawing the motion to dismiss for failure to prosecute based upon the employee's commitment to take a medical deposition within sixty days. A second motion to dismiss for failure to prosecute was filed and heard on March 15, 2010 because the medical deposition had not been taken. The trial court granted the motion with prejudice. The employee has appealed. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/fischerm_060711.pdf

Court reviews whether Plainiff's expert was qualified to testify in a case involving medical malpractice

BRANDE KIRK, ET AL. v. MICHAEL A. CHAVIN, M.D. (Tenn. Ct. App. June 3, 2011)


Brande Kirk and Amanda Jordan, as children of Barbara Jordan, ("Plaintiffs") sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs' expert was not qualified to testify in accordance with Tenn. Code Ann. section 29-26-115, and granting Defendant's motion for summary judgment. Plaintiffs appeal to this Court. We affirm. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/kirkb_060311.pdf

Court reviews whether defendant negated causation in his motion for summary judgment in a wrongful death medical malpractice case

JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RANDALL EUGENE KEY ET AL.v. BLOUNT MEMORIAL HOSPITAL, INC. ET AL. (Tenn. Ct. App. May 31, 2011)



This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant's motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant's motion; however the hearing was continued for several months. Having struck the plaintiff's filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed.

The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court's grant of summary judgment and remand for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/keyj_053111.pdf

TWCA Reviews a Finding of an Employee's Meaningful Return to Work

JOHN ERNEST HAYES v. AMERICAN ZURICH INSURANCE COMPANY ET AL. (TWCA May 25, 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 trial court found that the employee had sustained a compensable injury. In addition, it found that the employee had a meaningful return to work, and his award of permanent partial disability ("PPD") benefits was limited to one and one-half times his anatomical impairment pursuant to Tennessee Code Annotated section 50-6-241(d)(1).

On appeal, the employee contends the trial court erred by finding that he had a meaningful return to work. The employer contends the trial court erred by admitting a discovery deposition of an expert into evidence over its objection based upon Tennessee Rule of Civil Procedure 32.01(3), and finding that the injury at issue was not concurrent with injuries which were the subject of a separate lawsuit. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/hayesj_052511.pdf

General Assembly passes major legislation, including the Civil Justice Act, and looks toward adjournment

The Tennessee General Assembly worked in marathon floor and committee sessions this week towards the conclusion of the 2011 legislative session. Among major legislation approved by the State Senate is a civil justice law sponsors say will establish a climate to help create jobs in Tennessee, several measures cracking down on child sex offenders and those who engage in human trafficking, and state's rights legislation.

According to its sponsors, the Tennessee Civil Justice Act of 2011 is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer. The bill's sponsors say the state's current civil justice system puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs. Opponents of the bill say it is harmful to injured plaintiffs by limiting the amount they can recover and that Tennessee has not seen runaway jury verdicts as in other states.

Key provisions of Senate Bill 1522 include:
- The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
- It defines two components of compensatory damages: economic and non-economic damages.
- The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply.
- As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
- There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
- Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater, unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
- Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.

The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature. It will take effect October 1, 2011, and apply to all liability actions for injuries accruing after that date.

Court Reviews A Jury Verdict in a Medical Malpractice and Wrongful Death Action

PATTI ZAKOUR, DECEASED, BY NEXT OF KIN, INDIVIDUALLY AND AS NATURAL CHILDREN, NEXT FRIEND AND ON BEHALF OF ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF PATTI ZAKOUR, DECEASED v. UT MEDICAL GROUP, INC. (Tenn. Ct. App. May 19, 2011)



The trial court granted Defendant's motion to set aside the judgment arising from a jury verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also conditionally granted Defendant's alternative motion for a new trial. In light of Abshure v. Methodist Healthcare, we vacate the judgment and remand for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/zakourp_051911.pdf

TWCA Reviews Whether Employee's Injury was Compensable

STEVE MCBROOM v. NISSAN NORTH AMERICA, INC. ET AL. (TWCA May 10, 2011)

The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease.

The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf

Court Reviews a Summary Judgment Ruling in a Slip and Fall Case

DAVID MACKLIN v. DOLLAR GENERAL CORPORATION, d/b/a DOLLAR GENERAL STORE #2311 (Tenn. Ct. App. May 4, 2011)



This is a premises liability case. The plaintiff slipped and fell on a clear liquid at the defendant's store. The defendant moved for summary judgment arguing it did not have a reasonable opportunity to clean the floor, warn the customer of the clear liquid, or take adequate precautionary measures upon receiving notice of the dangerous condition.

The trial court granted the motion and the plaintiff appealed. Having determined the defendant effectively moved for and received only partial summary judgment, we dismiss this appeal for lack of subject matter jurisdiction. 


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/macklind_050411.pdf

TWCA Reviews Whether Employee Sustained any Permanent Impairment or Disability

BRENDA COLE v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA May 2, 2011)



An employee was struck in the back of the leg by a wooden pallet while at work. She alleged that she sustained permanent injuries to her neck, back, and foot as a result of that incident and filed a complaint against her employer in chancery court for workers' compensation benefits. Her employer denied that she had sustained any permanent impairment or disability. The chancery court held that the employee sustained a compensable injury and awarded 20% permanent partial disability benefits. The employer has appealed. We affirm the judgment. 


Opinion may be found at:

http://www.tba2.org/tba_files/TSC_WCP/2011/coleb_050211.pdf

Court Reviews the issue of Negligence in a Wrongful Death Case

JAMES ANTONY WILSON, SR. v. EAST TENNESSEE HUMAN RESOURCE AGENCY, INC. (Tenn. Ct. App. April 29, 2011)



James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. ("ETHRA") individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson ("Callie Wilson") while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries.

After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court's finding that ETHRA's employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages. 


Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/wilsonj_042911.pdf

Court Reviews the Foreseeability of the Driver’s Unconsiousness in a Case Involving a Motor Vehicle Accident

TIMOTHY SCHWANDNER v. DANA S. HIGDON (Tenn. Ct. App. April 27, 2011)



The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for summary judgment, arguing that she was not liable for the plaintiff's injuries because her sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the accident the defendant had not eaten during a full day of busy activity, the plaintiff argued that it was foreseeable that the she would lose consciousness. The trial court did not agree, and it granted the defendant's motion. We affirm the trial court.


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/schwandnert_042711.pdf

Republican Sen. Mike Faulk Against TN Tort Reform Bills

Tennessee Republican Senator Mike Faulk appears to be the only voice of reason among Tennessee Republicans who are determined to fix a tort system that is not broken. He opposes Governor Haslam's tort reform bill which has been improperly touted as a jobs creations bill. Senator Faulk is absolutely correct that the current Tennessee tort system and criminal systems work and that the tort system is based on bedrock conservative priniples of personal responsibility and limited government. Please read his opinion piece and call your legislators and ask them to vote against the Governor's bill. The bill will be up for final passage by the Senate next week so time is of the essence. Ask your legislator to refuse this gift to businesses and insurance companies at the expense of all Tennesseans.

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

Say NO to TN Tort Reform - The Stories of Courtney Hill and Amanda Travis

Governor Haslam's tort reform bill is proceeding through the House with little opposition. The Republican controlled legislature, backed by countless corporate interests and physicians, is pushing the bill through as fast as possible while their momentum is high. The families of Courtney Hill - a young woman and mother who died as a result of medical negligence - and Amanda Travis - a young child who died as a result of medical negligence -want you to see how they lost their loved ones. Please view these stories and contact one or more members of the House Judiciary Committee below and ask them not to vote for the Governor's unneeded bill. Please do not be complacent because you believe these things cannot happen to you or your family. If you have more questions about the bill, see former Senator Fred Thompson's testimony to the House Judiciary Committee on why Tennessee's tort system is not broken and why the Governor's bill is a gift to corporations and insurers paid for by Tennessee citizens. House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov

Tell Your Legislators - Governor's Tort Reform Bill Goes Too Far

In 12 years of practice, every injured client I ever represented shared one common trait - they never thought it would happen to them. When I then proceeded to explain to many of them how little they could expect to recover based on employer-favorable worker's compensation laws or state-mandated minimum auto insurance coverage carried by a defendant driver they were stunned.

Given that Governor Haslam's Tort Reform is on the verge of passage without much opposition, it appears that, like my clients, most Tennesseans assume they will never be injured by another's negligence. I sincerely hope that you and your family are never harmed by a speeding trucker, a drunk driver, a careless professional, an unscrupulous insurer or a greedy financial institutiuon. However, statistically, many of us will experience one or more of these unfortunate events.

If you are affected by such events, you will be stunned by the limits the Governor's bill will have placed on the options for you and your family. Just consider one component of the bill which modifies what is known as the Collateral Source Rule. Although the bill does not mention "collateral source", the changes to the rule are real and are a hidden gem for defendants and insurers alike.

The current Collateral Source Rule recognizes personal responsibility and treats all defendants in injury suits equally. If you responsibly purchased health insurance, medical payments coverage or disability coverage for you and your family and it pays you while you are injured or out of work the person who injures you and his/her insurer does not benefit from your insurance.

For example, if you pay $400 per month for health insurance - by doing so you have paid for the right not to pay retail prices for healthcare. If you are injured and undergo a $1,000 MRI and your insurer has negotiated with the MRI provider to charge you only $500, you and/or your insurer pay only $500 and the balance is written off. At trial, you are allowed to claim the $1,000 bill in full. Why? Because you paid thousands of dollars in premiums for the right to receive the $500 reduction.

Under the Governor's bill, the Collateral Source Rule would be modified or eliminated such that you can only claim the $500 paid by your insurer. The effect is the person who injured you and his/her insurer get the benefit of the health insurance coverage you bought and paid for.

In another example, assume you are injured, out of work and receive money from a disability policy which you paid for. If you lost $10,000 in wages and your disability plan paid you $7,500 while you were off, the Governor's bill would only require the person who injured you to pay you the other $2,500. Again, the person who injured you and his/her insurer save $7,500 because you paid years of premiums for the disability coverage.

In these examples, the person who injured you caused $11,000 in actual damage, but he and his insurer paid only $3,000 in damages to you because YOU paid high premiums for additional insurance coverage. Under the same bill, a person who is injured and did not buy health or disability coverage would receive the full $11,000 in damages.

Why would a conservative Governor and Republican led Legislature reward a negligent party at the expense of a responsible individual who paid premiums and planned for unforseen injury? Why would they advocate for a rule that provides more damages for an individual who did not bother to buy health or disability coverage for his/her family? The only answer is that it will decrease the amount of claims paid by Tennessee auto and other insurers.

In short, it is a gift to insurers who have been seeking this change in the Collateral Source Rule for years. It's the perfect system - insurers collect your premium dollars; pay as little as possible if you have a health or disability claim; and then if an insured driver harms you his/her insurer pays you as little as possible from that person's premiums. What a system.

The Collateral Source Rule is a major component of the Governor's "job creating" tort reform bill. I challenge you to find one individual in the Governor's administration or in the Tennessee Legislature who can explain how this gift to insurers will create a single job. I walked the halls of the Hill last month and asked numerous legislators why they would vote for such a bill. In some cases I received blank stares asking me "what is Collateral Source?" Others simply could not believe that such an offensive rule was buried in the bill they clearly had not read. Needless to say - I was stunned.

If we cannot count on a conservative Legislature and Governor not to reward insurers at the expense of working men and women who responsibly buy insurance to protect themselves - where do we turn? If you are as bothered as me by this bill - call or e-mail members of the House Judiciary Committee (listed below) and tell them. They will pass on this bill this week. Ask them if they have paid insurance premiums for themselves and their families and, if so, why in the world would they support these changes to Collateral Source. Then ask them to remove it from the bill.

Finally, listen to former Senator Fred Thompson's testimony on tort reform before the House Judiciary Committee. If you agree that the reform bill is a solution in search of a problem disguised as a jobs machine - tell the Committee how you feel.


House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov

Court Reviews Whether Plaintiff Sufficiently Stated Her Claims Against Jackson County Defendants

TERESA LYNN JACKSON v. AARON THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CIRCUIT COURT CLERK OF JACKSON COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. March 24, 2011)

Plaintiff appeals the Tenn. R. Civ. P. 12.02 dismissal of her claims against two defendants, the Circuit Court Clerk of Jackson County, individually and in his official capacity, and Jackson County, Tennessee for a violation of 42 U.S.C. section 1983, the Tennessee Governmental Tort Liability Act, and numerous intentional torts. The trial court dismissed all claims against these defendants finding that Plaintiff failed to state a claim. We affirm the trial court in all respects.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksont_032411.pdf

Opinion: Bills to limit malpractice awards not needed

Former judge and current Memphis lawyer D'Army Bailey writes in an opinion piece today about pending legislation that would limit malpractice awards. The "proposals go well beyond severely limiting Tennessee residents' rights to fair and adequate compensation," he says. "They are designed to protect large corporations and negligent doctors who cause serious harm." Even Gov. Bill Haslam, who is pushing most of these legislative changes, acknowledges they are unnecessary, he continues.

Read his guest column in the Commercial Appeal: 
http://www.commercialappeal.com/news/2011/mar/04/guest-column-haslam-wants-to-curb-malpractice/

General Assembly News: TBA bill aimed at protecting clients, lawyers

Companies that advance money to plaintiffs involved in personal injury lawsuits are lobbying in legislatures across the country to ensure their industry is not subject to usury limits on interest rates or other state laws that protect borrowers.

In Tennessee, the effort to put some controls in place is being led by the Tennessee Bar Association. The TBA initiative, coming from the Tort and Insurance Practice Section, is focused not on the intra-industry fight, but on protecting clients, lawyers and the legal process from many of the excesses of an unregulated industry. The TBA bill (HB1084, SB0921) is sponsored by House Consumer Affairs Committee Chair Jimmy Eldridge (R-Jackson) and Sen. Mae Beavers (R-Lebanon), chair of the senate Judiciary Committee.

Court Reviews Trial Court's Suggestion of Remittitur in a Case Involving a Car Accident

JAN OGLESBY and JOHN OGLESBY v. EDWIN T. RIGGINS (Tenn. Ct. App. March 17, 2011)

This case arises from a car accident in which Appellant was injured when her vehicle was struck by Appellee's vehicle. Following a jury trial, the jury awarded Appellant damages, including $100,000 for Appellant's loss of earning capacity claims. Acting as the thirteenth juror, and based upon its finding that Appellant had failed to meet her burden to show loss of earning capacity, the trial court suggested remittitur of the entire $100,000 loss of earning capacity award. Appellant appeals. Discerning no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/oglesbyj_031711.pdf

TWCA Reviews Whether an Employer is one that qualifies under a Second Injury Fund

RICKY D. GARRETT v. WILLIAM DAVID BROWN, ET AL. (TWCA March 15, 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. Ricky D. Garrett ("Employee") was injured when he fell from the roof of a barn during the course and scope of his employment as a handyman for William David Brown ("Employer"), a farmer who carried worker's compensation insurance.

Subsequently, Employee filed a complaint for worker's compensation benefits against Employer and Employer's insurance carrier. Employee also named the Second Injury Fund ("the Fund") as a defendant and alleged that the injury he sustained in the fall in combination with his pre-existing disabilities rendered him totally disabled.

The trial court agreed that Employee was permanently and totally disabled as a result of the injury sustained in the fall combined with the pre-existing disabilities and awarded Employee full benefits with 40% liability for the award assigned to Employer and 60% assigned to the Fund. The Fund appealed, asserting, 1) that Employer does not meet the definition of "employer" for purposes of the Second Injury Fund statute; 2) that the proof is insufficient to show that Employer had knowledge of Employee's pre-existing disabilities; and 3) that the judgment awarded Employee was incorrectly apportioned between the Fund and the Employer. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/garrettr_031511.pdf

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

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

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

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

Court Reviews a Wrongful Death Case Involving an Infant in the Custody of a DCS Placement Caretaker

IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL. (Tenn. Ct. App. March 14, 2011)

This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room.

The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf

Court Reviews Whether a Patient was Competent When He Executed a Power-of-Attorney Document

MARTHA DUKE, As Next of Kin of William Jerry Duke, Deceased, and on behalf of the wrongful death beneficiaries of William Jerry Duke v. KINDRED HEALTHCARE OPERATING, INC., ET AL. (Tenn. Ct. App. March 14, 2011)

This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient's sister, who had presented a power of attorney document to the admissions staff that designated her as the patient's attorney-in-fact. The patient's representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants' motion to compel arbitration. We affirm and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dukem_031411.pdf

TWCA Reviews Whether an Employee’s Work-Related Injury Advanced His Pre-Existing Back Condition

WILLIAM DAVID MORGAN v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA March 11, 2011)

In this workers' compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a pre-existing condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morganw_031111.pdf

TWCA Reviews Which Insurance Company is Liable for Covering Employee’s Treatment

JIMMY RANKIN v. EVERYBODY'S OIL CORPORATION d/b/a QUICK TIRE/TIRE BARN, ET AL. (TWCA March 10, 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 sustained a work-related injury in September 2007, but medical treatment was not offered by the employer at that time. He continued to work for several months despite his injury. In March 2008, his employer sent him to a physician. He was diagnosed with a significant spinal injury, which required surgical treatment and resulted in severe disability. His employer had changed its workers' compensation insurer in November 2007.

Employee's claim was settled, but the two insurers disagreed as to which was liable. The trial court found that the insurer at the time of the original injury was liable. That insurer has appealed, contending that the later insurer should be liable due to the gradual worsening of the employee's condition after November 2007. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rankinj_031011.pdf

TWCA Reconsiders an Employee's Earlier, Capped Settlement

MICHAEL DEVEREUX v. UNITED PARCEL SERVICE, INC. (TWCA March 8, 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 sought reconsideration of his earlier workers' compensation settlement, which had been "capped" pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/devereuxm_030811.pdf

Supreme Court Reviews Whether Employee's Accident Occurred within the Scope of His Employment

OMER LEE DIXON, JR. v. TRAVELERS INDEMNITY COMPANY (Tenn. March 3, 2011)

The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/dixono_030311.pdf