TWCA reviews when an employee's heart attack began and whether it was causally related to his employment

TIMOTHY D. CUNNINGHAM v. CITY OF SAVANNAH, TENNESSEE ET AL. (TWCA February 28, 2012)

The employee, an undercover drug investigator for the City of Savannah, alleged that he sustained a heart attack as a result of a physical confrontation with a suspect on March 2, 2005, during which he experienced tightness in his chest and shortness of breath. He experienced pressure in his chest and low energy but continued to work the following two days. On March 5, while engaged in activities unrelated to his job, he experienced nausea, profuse sweating, and severe pain in his chest, jaw, and left arm. His wife took him to a hospital emergency room where he was treated for an acute myocardial infarction.

At trial, one of his treating physicians testified that the heart attack began on March 2 and continued until March 5. A second treating physician and an evaluating physician testified that the March 2 incident did not cause the March 5 heart attack. The trial court found that the heart attack began on March 2, and the employer appealed.

On appeal, the employer 1 contends that the trial court erred in finding that the statutory presumption had not been overcome, erred in concluding that employee’s heart attack began on March 2, 2005, and erred by finding that employee’s heart attack was causally related to his employment. Although we agree that the trial court erred in its application of the statutory presumption, we affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/cunninghamt_022812.pdf

TWCA reviews whether a nurse was totally and permanently disabled by neck and lower back injuries

VONETTA MOUSSEAU v. DAVITA, INC. (TWCA February 22, 2012)

The employee, a registered nurse, injured her neck and lower back when she slipped and fell in a pool of water. She had surgical fusions of the cervical and lumbar spine. She continued to have serious symptoms for which she received numerous medications. Her treating physician testified that she was incapable of performing any nursing functions, including those that required only sedentary work. The trial court found her to be permanently and totally disabled. Her employer has appealed, contending that the evidence preponderates against the trial court’s finding on disability and that the employee should be held to have been offered a meaningful return to work. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/mousseauv_022212.pdf

Court reviews a workers' compensation claim brought against the TN Department of Labor and Workforce Development

ALSTOM POWER, INC., v. SUE ANN HEAD, ADMINISTRATOR, TENNESSEE DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT, WORKERS' COMPENSATION DIVISION, et al. (Tenn. Ct. App. February 21, 2012)


Plaintiff employer confronted with a worker's compensation claim by its employee filed an action for declaratory judgment, injunction relief, and a petition for certiorari against the Tennessee Department of Labor and Workforce Development and the employee. Plaintiff's principal contention was that the Department of Labor prepared an order for medical benefits directing the employer to provide the employee with additional panels of physicians from which he could choose for treatment, and concluded by averring that it was threatened with a $10,000 penalty if it did not comply.

The Trial Court initially issued a restraining order, but the Trial Court ultimately concluded that it did not have jurisdiction over the issues because suit had been filed before the administrative review process was exhausted. Plaintiff appealed and we affirm the Judgment of the Trial Court, and remand.

Opinion available at:
https://www.tba.org/sites/default/files/alstompower_022112.pdf

Court reviews whether the trial court properly allowed a medical expert from a non-contiguous state in a medical malpractice case

MARSHA McDONALD v. PAUL F. SHEA M.D. AND SHEA EAR CLINIC (Tenn. Ct. App. February 16, 2012)



This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state.

At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician's motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages.

The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_021612.pdf



HIGHERS, concurring in part and dissenting in part:

http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_CON_021612.pdf

TWCA reviews whether an employee willfully violated his employer's safety rules

DANNEIL EDWARD KEITH v. WESTERN EXPRESS, INC. ET A (TWCA February 17, 2012)



The employee, a truck driver, was injured in the course and scope of his employment when his vehicle left the road and turned over. His employer denied his claim for workers' compensation benefits, contending that the accident and resulting injuries were the direct result of the employee's willful violation of the employer's safety rules. The trial court found that the employee had willfully and intentionally disregarded the safety rules and entered judgment for the employer. On appeal, the employee contends that the trial court erred because the evidence did not establish the perverseness of his conduct, a necessary element of the misconduct affirmative defense. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/keithd_021712.pdf

TWCA reviews whether the trial court adopted the proper impairment rating and found that

LARRY KENNETH HALE v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA ET AL. (TWCA February 17, 2012)



Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee fell and struck both knees on a concrete landing in the course of his employment with the employer. His left knee required surgery and his right knee received limited medical treatment. The treating physician assigned 8% permanent impairment to the left leg. Employee's evaluating physician assigned 13% impairment to the left leg and 20% impairment to the right leg. The trial court adopted the evaluating physician's opinions and awarded 50% permanent partial disability to both legs.

Employer argues on appeal that the trial court erred by finding that Employee sustained a permanent injury to his right knee, by adopting the impairment rating of Dr. Landsberg over that of Dr. Gavigan for the left knee injury, by failing to find that Employee had a meaningful return to work, and by granting an excessive award of benefits. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/halel_021712.pdf

TWCA reviews whether employee's lung disease was aggravated by his exposure to smoke at work

GEORGE McGOWAN v. STATE OF TENNESSEE (TWCA February 16, 2012)



An employee was exposed to smoke as a result of a fire at his workplace. Testing revealed the presence of bullous emphysema, a dangerous condition caused by cigarette smoking. Surgery was required to treat that condition. The Claims Commission ruled that the smoke exposure at work had aggravated and advanced his preexisting lung disease and awarded permanent total disability benefits. The employer has appealed, contending that the evidence preponderates against the Commissioner's finding of causation. We agree and reverse the judgment.



Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/mcgowang_021612.pdf

TWCA Reviews whether a Sheriff's Deputy's injury occurred during an incident that was unusual or extraordinary for his profession

DOYLE ALLEN CASTLE v. SULLIVAN COUNTY SHERIFF'S DEPARTMENT (TWCA February 16, 2012)



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, a sheriff's deputy, alleged that he sustained a mental injury as a result of a confrontation that occurred while he was serving an eviction warrant. His employer denied the claim and filed a motion for summary judgment, contending that the injury was not compensable because the alleged precipitating event was not unusual or abnormal for a deputy.

The trial court granted summary judgment for the employer. On appeal, the employee contends that the trial court erred by concluding that there was not a genuine issue of material fact as to whether the incident in question was sufficiently extraordinary or unusual to support a mental injury claim. Because there is a genuine issue of material fact as to whether the injury qualified as extraordinary and unusual or was merely the result of stress ordinarily experienced in the line of duty, the judgment is reversed, and the cause is remanded for trial.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/castled_021612.pdf

TWCA reviews whether employee adequately proved that his injury was work-related

KENNETH STEWART v. WESTFIELD INSURANCE COMPANY (TWCA February16, 2012)



The appellant insurance company asserts on appeal that the employee failed to prove that his spinal infection was causally related to any work-place injury and that he also failed to provide the employer with timely notice of his injury. Based upon our review of the record, we conclude that the expert medical proof establishes causation and that the evidence supports the trial court's finding that the employee gave timely notice of his injury. We affirm the judgment of the trial court.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/stewartk_021612.pdf

TWCA reviews whether a taxi driver was an employee or an independent contractor

MOHAMUD HIRSI MOHAMED v. TAXI USA OF TENNESSEE, LLC d/b/a ALLIED CAR COMPANY ET AL. (TWCA February 10, 2012)



In this case, the plaintiff, a taxi driver injured in a motor vehicle accident, sought workers' compensation benefits from the taxi company that he alleged employed him. The trial court held that he was an independent contractor and dismissed the complaint. The plaintiff appealed. We affirm the judgment.

Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/mohamedm_021012.pdf

TWCA reviews whether an employee was eligible for the reconsideration of her workers’ compensation settlement.

ROCHELLE M. EVANS v. FORD MOTOR COMPANY (TWCA February 10, 2012)



The employee sought reconsideration of her workers' compensation settlement. The trial court found that she had voluntarily resigned and was therefore not eligible to receive reconsideration. The employee has appealed. We affirm the trial court's judgment.



Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/evansr_021012.pdf

Court reviews a medical negligence case involving injuries sustained during laser eye surgery

LEON DICKSON, SR. v. SIDNEY H. KRIGER, M.D. (Tenn. Ct. App. February 10, 2012)



This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault.

Plaintiff filed a motion to strike portions of Defendant's amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault.

Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant's experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure.

The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2012/dicksonl_021012.pdf

TWCA reviews whether an employee was eligible for benefits in spite of his being a poor witness

TETON TRANSPORTATION, INC. v. TODD WHITE (TWCA February 7, 2012)

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 alleged that he injured his back at work. His employer denied the claim.

While the trial court found that the employee was not a credible witness, it found that he had sustained a compensable injury based upon the testimony of an independent lay witness and the treating physician. The trial court awarded 78% permanent partial disability benefits. The employer has appealed, asserting that the evidence preponderates against the trial court's finding of compensability. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/teton_020712.pdf

Court reviews whether employee's injury was a work-related aggravation of a pre-existing injury and, thus, whether employer is liable

TAMMY L. LEE v. DURA OPERATING CORP., ET AL. (TWCA February 2, 2012)

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.

Tammy L. Lee ("Employee") alleges that she suffered an injury to her cervical spine while she was employed as a factory worker by Dura Operating Corporation ("Employer") . Employer denies that Employee's cervical spine injury was caused by her employment with Employer.

The trial court determined that Employee's cervical spine condition was a work-related aggravation of her pre-existing degenerative disc disease. The trial court awarded Employee temporary total benefits from November 8, 2007, to February 8, 2008. Finding that Employee had not been able to return to work, the trial court refused to apply the statutory cap and awarded Employee permanent partial disability benefits of 69% to the body as a whole, three times her anatomical impairment rating of 23% to the body as a whole. Finding that the evidence preponderates against the trial court's determination of causation, we reverse the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/leet_020112.pdf

TWCA reviews whether an employee's injury was caused by her employment at a factory

MARIE AKINS v. WHIRLPOOL CORPORATION (TWCA February 1, 2012)

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. Marie Akins ("Employee") alleges that she developed carpal tunnel syndrome in her left wrist while employed as a factory worker by Whirlpool Corporation ("Employer"), prior to the closure of Employer's plant in August 2008. Employer denies that Employee's carpal tunnel syndrome in her left wrist was caused by her employment with it.

The trial court found that Employee's left-wrist carpal tunnel syndrome was not caused by her employment with Employer and that Employer therefore is not liable for this injury. Employee has appealed, contending both that the evidence preponderates against the trial court's finding and that Employer is estopped from denying liability based on delay in the diagnosis of Employee's carpal tunnel syndrome in her left wrist. We affirm the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/akinsm_020112.pdf

Court reviews whether the trial court properly dismissed an uninsured motorist claim

SHAVON HURT v. JOHN DOE, ET AL. (Tenn. Ct. App. January 17, 2012)

Plaintiff filed a personal injury action arising out of a pedestrian-vehicle collision, naming as defendant the owner of the car that allegedly struck the plaintiff. After discovery, plaintiff amended the complaint to add "John Doe/Jane Doe" as a defendant and served process on her uninsured motorist carrier. Plaintiff subsequently settled with the named defendant and dismissed the action against that defendant; the uninsured motorist insurance carrier then filed a motion to dismiss the uninsured motorist claim. The trial court granted the motion, holding that, in light of the settlement, the uninsured motorist claim no longer existed and dismissed the case. We find that the court erred in dismissing the case.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/hurts_011712.pdf

Court reviews the allocation of fault in a case involving a mechanical bull accident

CHADWICK DAVID DORMAN MOYER v. NASHVILLE MIDNIGHT OIL, LLC, D/B/A CADILLAC RANCH (Tenn. Ct. App. January 12, 2012)

Plaintiff sued to recover for injuries sustained while riding a mechanical bull in a bar owned by Defendant. Defendant appeals the trial court's determination that it was 100% at fault and resulting judgment for plaintiff. Because the evidence does not preponderate against the trial court's findings, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/moyerc_011212.pdf

Court reviews whether a contractor can be held liable for injuries incurred in a car accident

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC. (Tenn. Ct. App. January 10, 2012)

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck. Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/leej_011012.pdf

Court reviews the liability of an assisted living facility's management company

RHEAETTA F. WILSON ET AL. v. AMERICARE SYSTEMS, INC., ET AL. (Tenn. Ct. January 6, 2012)

Decedent's next of kin filed this wrongful death action against an assisted living facility, two nurses, and the facility's management company for failure to provide proper care and treatment. This appeal concerns only the jury verdict and judgment finding the management company directly liable for failure to provide adequate staff at the assisted living facility. We find no material evidence to support a conclusion that any staffing deficiency proximately caused the decedent's death. We therefore reverse the judgment finding direct liability on the part of the management company.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/wilsonr_010612.pdf

Court reviews a penalty issued by the Department of Labor and Workforce Development

LIBERTY MUTUAL INSURANCE COMPANY ET AL. v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT AND WORKERS' COMPENSATION DIVISION (Tenn. Ct. App. January 4, 2011)

This action was filed pursuant to the Uniform Administrative Procedures Act, Tennessee Code Annotated section 4-5-322, for contested cases. The petitioner challenges a penalty assessed by the Tennessee Department of Labor and Workforce Development, Division of Workers' Compensation. The stated reason for the penalty was the failure to file Form C-20, Tennessee Employer's First Report of Work Injury, regarding eighteen injuries that occurred in January and February 2003 which were medical only injuries, meaning no disability benefits were owing. The trial court affirmed the penalty.

We find the petitioner was not afforded proper notice of the Department's basis for issuing the penalty in violation of the petitioner's due process rights under the UAPA, Tennessee Code Annotated section 4-5-307. We also find that the Department exceeded its authority by changing its "interpretation" of Tenn. Comp. R. & Regs. 0800-2-1-.06, a rule that was unambiguous and, thus, not subject to interpretation. The trial court's holding is reversed, and this matter is remanded with instructions to vacate the penalty assessed against the petitioner.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/libertymutual_010411.pdf

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

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

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

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

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

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

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

Tennessee Supreme Court reviews whether the trial court properly excluded an expert's hearsay evidence in a premises liability case

JAMES Q. HOLDER ET AL. v. WESTGATE RESORTS LTD. (Tenn. December 12, 2011)

During a trial of the plaintiffs' premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant's expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed.

The Court of Appeals held that the trial court erred because the expert's testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court's error was harmless, however, and affirmed the judgment.

We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/holderj_121211.pdf

Court reviews whether plaintiff properly alleged his breach of contract, misrepresentation, and TN Consumer Act violation claims

JAMES WATRY v. ALLSTATE PROPERTY AND CAUSALITY INSURANCE COMPANY, AN ILLINOIS CORPORATION (Tenn. Ct. App. December 29, 2011)

Insured was injured by an automobile driven by an uninsured motorist. Insured filed a claim with Insurer seeking uninsured motorist coverage benefits and settled for an amount that was less than his actual damages. Insured then sued Insurer seeking damages for fraudulent misrepresentation, breach of contract, and violation of the Tennessee Consumer Act. Insurer filed a motion for judgment on the pleadings which the trial court granted. We affirm the trial court's judgment because Insured failed to allege sufficient facts to support any of his causes of action.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/watry_122911.pdf

Court reviews whether the city of Murfreesboro had notice of unsafe road conditions based on records of previous accidents

JENNIFER BIVINS, as next of kin and natural parent of BRANDON BIVINS, deceased v. CITY OF MURFREESBORO (Tenn. Ct. App. December 29, 2011)

Plaintiff filed an action against the City of Murfreesboro pursuant to the Governmental Tort Liability Act, claiming a dangerous and unsafe roadway caused an automobile accident in which her son was killed. The trial court determined the City had no notice of an unsafe or dangerous condition, and entered judgment in favor of the City.

Upon appeal, we reversed on the issue of notice, holding that previous accidents on adjacent areas of the roadway provided sufficient notice to the City of a potentially dangerous condition. Upon remand, the trial court entered judgment in favor of Plaintiff, and assessed 60% fault to the City. We vacate and remand for further findings consistent with Rule 52 of the Tennessee Rules of Civil Procedure.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bivinsj_122911.pdf

Court reviews whether trial court properly excluded expert testimony based on the locality rule in a medical malpractice case

TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN (Tenn. Ct. App. December 28, 2011)

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf

Court reviews a defamation case that occurred following a dispute about parenting

GEOFFREY TODD KRASNER v. JOHN ARNOLD (Tenn. Ct. App. December 28, 2011)

This appeal involves claims of defamation. After words were exchanged in the course of a parenting dispute, the plaintiff filed this lawsuit against the defendant father of the plaintiff's girlfriend's daughter. A bench trial was held in which both parties were self-represented. The trial court held in favor of the defendant father. The plaintiff now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/krasnerg_122811.pdf

Court reviews whether a construction company can be held liable to a driver who had an accident on a road on which the company performed work

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC. (Tenn. Ct. App. December 20, 2011)

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck.

Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/leej_122011.pdf

Court reviews whether an employee's hernias were compensable injuries

ANITA BERKLEY RHODES v. CAREALL, INC. ET AL. (TWCA December 20, 2011)

An employee alleged that she sustained a right- and left-side hernia while working. Her employer denied the claim for the left-side hernia. The trial court held that both the right- and left-side hernias were compensable and awarded permanent partial disability benefits. The employer appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rhodesa_122011.pdf

TWCA reviews whether an impairment rating should be applied to the hand or limited to the index finger in a case involving a partial amputation

JAMES TERRY JOHNSON v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC. D/B/A AT&T, INC. (TWCA December 20, 2011)

An employee suffered a partial amputation of his left index finger. Compensability of the injury was not contested. At trial, the employee argued that his disability award should be apportioned to the hand. His employer contended that the award should be limited to the index finger. The trial court agreed with the employee and awarded 52% permanent partial disability to the hand. The employer appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonj_122011.pdf

TWCA reviews whether an employee who was fired had a meaningful return to work after receiving surgical treatment for an injury

MELISSA HAMLIN v. WINDSOR FORESTRY TOOLS, INC. ET AL. (TWCA December 20, 2011)

The employee injured her back at work and the injury required surgical treatment. The employee returned to work but was later terminated for violation of her employer's attendance and absenteeism policy. The trial court found the employee did not have a meaningful return to work. The trial court, however, adopted the impairment rating that the employee's evaluating physician expressed and awarded 90% permanent partial disability benefits, the maximum award permitted by Tennessee Code Annotated section 50-6-241(d).

The employer has appealed, contending that the trial court erred by adopting the evaluating physician's impairment rating, by its use of the six-times multiplier on the basis of facts not in evidence, and by finding that the employee did not have a meaningful return to work. We agree that the evidence preponderates against the trial court's findings concerning employee's impairment and the six-times multiplier. Accordingly, we modify the award.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/hamlinm_122011.pdf

Court reviews a claim for uninsured motorist benefits

REYNALDO COLLAZO ET AL. v. JOE HAAS D/B/A HAAS CONSTRUCTION ET AL. (Tenn. Ct. App. December 16, 2011)

This is an action to recover uninsured motorist benefits following a motor vehicle collision involving the plaintiff and another vehicle. The driver of the defendant vehicle left the scene and has not been identified. The owner of the vehicle was subsequently identified, but denied knowing the identity of the driver and claimed no one had permission to operate the vehicle at the time of the accident.

The named defendants in this action are the owner of the vehicle and John Doe, the unknown driver. Plaintiffs' uninsured motorist insurance carrier, Nationwide Insurance Co., is an unnamed defendant. The defendant owner has liability insurance coverage through State Farm Insurance Co.

The plaintiffs settled all claims against the defendant-owner and State Farm for $90,000, $10,000 less than the uninsured motorist limits with Nationwide. Thereafter, the plaintiffs continued to pursue their claims against Nationwide for uninsured motorist benefits, insisting the settlement with the owner of the vehicle did not bar their claims against the uninsured John Doe driver. Upon motion for summary judgment by Nationwide, the trial court found that because the owner of the vehicle had $100,000 of liability insurance, there was not an "uninsured motor vehicle." Based on this finding, the trial court summarily dismissed the plaintiffs' uninsured motorist claim against Nationwide. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/collazor_121611.pdf

Court reviews whether plaintiff was an employee or independent contractor, and an award for punitive damages

JEFFREY L. DILLON v. NICA, INC., ET AL. (Tenn. Ct. App. December 15, 2011)

After his claim for insurance benefits for an injury sustained while making a delivery was denied, plaintiff filed suit against the delivery company, the company providing the insurance coverage and its president, and the third party administrator of the insurance plan, asserting causes of action for breach of contract, violation of the Tennessee Consumer Protection Act, and conspiracy to evade the Tennessee Workers' Compensation Act. The jury found the company providing the insurance and its president liable for violation of the Consumer Protection Act and awarded compensatory and punitive damages.

On appeal, the insurance company and president contend that the trial court erred in finding that the plaintiff was an employee of delivery company rather than an independent contractor, in excluding various exhibits and testimony, in denying the president's motion for a directed verdict, and in awarding punitive damages. Because the punitive damage awarded was predicated on the violation of the Tennessee Consumer Protection Act, which does not authorize an award of punitive damages, the award of punitive damages is vacated and the case remanded for a determination of whether an award of treble damages under the Consumer Protection Act should be awarded. In all other respects, the judgment and rulings are affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dillonj_121511.pdf

TWCA reviews whether an employee had a meaningful return to work that would permit limiting his benefits following being fired for misconduct

DEWEY GIBSON, JR. v. HIDDEN MOUNTAIN RESORT, INC. (TWCA December 14, 2011)

The employee sought workers' compensation for a back injury which arose out of and in the scope of his employment with the employer. The trial court found that because the employee had a meaningful return to work and was subsequently dismissed for job misconduct, he was limited to benefits of 1.5 times the 20% anatomical impairment rating. The evidence does not preponderate against the trial court's factual findings; the judgment is, therefore, affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/gibsond_121411.pdf

TWCA reviews whether an employee's intoxication was the proximate cause of injuries he incurred at his job site

DANIEL BOYD DAVIDSON v. BUSINESS PERSONNEL SOLUTIONS (TWCA December 14, 2011)

The employee, who sustained injuries while removing tree limbs at a job site, filed a claim for workers' compensation. The employer denied benefits, contending that the injury was the result of the employee's intoxication and misconduct. While concluding that the employee was not guilty of willful misconduct, the trial court ruled that his intoxication was a proximate cause of the injuries and, therefore, denied the claim.

The employee appealed, alleging that the trial court erred by finding that he was intoxicated at the time of his injuries and that the intoxication was the proximate cause. This 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 trial court's finding that the employee was intoxicated and his intoxication proximately caused his injuries, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/davidsond_121411.pdf

TWCA reviews whether an employee's injury occurred during the course of his employment

ROBERT BRIGHT v. SHOUN TRUCKING COMPANY, INC. (TWCA December 7, 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, a truck driver, filed suit for benefits, alleging that he developed bilateral rotator cuff tears and carpal tunnel syndrome as a result of his job responsibilities. His employer contended that his injuries were not related to his employment. At the conclusion of the evidence, the trial court found in favor of the employee and awarded 50% permanent partial disability to the body as a whole.

The employer has appealed, contending that the evidence preponderates against the trial court's findings (1) that the injuries arose out of and in the course of employment, and (2) that five times the medical impairment was appropriate under the circumstances. Because the evidence does not preponderate against the findings of the trial judge, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brightr_120711.pdf

Court reviews whether a medical malpractice claim is time barred by the GTLA or was timely filed under the Tennessee Medical Malpractice Act

WALTON CUNNINGHAM & PHYLLIS CUNNINGHAM EX REL. PHILLIP WALTON CUNNINGHAM v. WILLIAMSON COUNTY HOSPITAL DISTRICT ET AL. (Tenn. Ct. App. December 1, 2011)

Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated section 29-20-305(b).

The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated section 29-26-121(c) (2009).

We have determined that the amendment codified at Tennessee Code Annotated section 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs' compliance with the pre-suit notification provision in Tennessee Code Annotate section 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore, were affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cunninghamw_120111.pdf

Court reviews whether the trial court properly ruled that defendant negated the element of proximate cause in an automobile accident case

TIMOTHY A. MOORE v. HUGH A. BUTLER, INDIVIDUALLY AND AS AGENT AND SERVANT OF ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND McCOY'S HEATING & AIR, INC. (Tenn. Ct. App. December 1, 2011)

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff's tractor-trailer, and then by the co-defendant's tractor-trailer. The defendant's service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff's tractor-trailer to brake quickly. This resulted in the co-defendant's tractor-trailer rear-ending the plaintiff's tractor-trailer.

The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008).

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

TWCA reviews whether a reinjury occurred and, if so, whether it's compensable

DAVID KIRBY v. MEMPHIS JEWISH NURSING HOME (TWCA December 1, 2011)

An employee sustained a compensable injury to his shoulder. While he was recovering from surgery, he reinjured his shoulder when his dog pulled his arm while he was holding the dog by its collar. The trial court found that the reinjury was a direct and natural result of the earlier compensable injury and that the reinjury caused an increase in impairment. The employer has appealed, contending that the trial court incorrectly applied the intervening injury rule and incorrectly adopted the evaluating physician's impairment. We affirm as to the reinjury but conclude that the trial court erroneously based its award upon an incorrect impairment rating, and we modify the judgment accordingly.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kirbyd_120111.pdf

TWCA reviews whether an accidental overdose can be compensable in a workers' compensation case.

JUDY KILBURN EX REL ESTATE OF CHARLES KILBURN v. GRANITE STATE INSURANCE COMPANY ET AL. (TWCA November 30, 2011)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee was seriously injured in the course of his employment in an automobile accident in November 2008. He suffered fractures of his neck and back and underwent a surgical fusion of his neck.

Over the course of the next year, he suffered severe pain and was eventually referred to a pain management physician, who prescribed oxycodone. He filed suit against his employer for workers' compensation benefits. He died in January of 2010 of an accidental overdose of oxycodone over 14 months after his injuries. His widow was substituted as plaintiff in his workers' compensation suit and filed a motion to amend the complaint to allege that his death was related to his work injury and that she was entitled to death benefits.

The employer opposed the motion to amend, contending the death was not compensable because it was not the "direct and natural result of a compensable injury" but rather, the result of an intervening cause, i.e., the employee's negligence in consuming an overdose of medicine. The trial court denied the motion to amend. The parties entered into a series of stipulations concerning the remaining issues in the case, and judgment was entered. The widow has appealed, contending that the trial court erred in denying her motion to amend the complaint. We agree, reverse the judgment, and remand the case to the trial court for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kilburnj_113011.pdf

Court reviews the application of an offset provision in an uninsured motorist policy

BECKY COOPER v. JASON POWERS ET AL. (Tenn. Ct. App. November 29, 2011)

At its core, this case is about the application of an offset provision in an uninsured motorist ("UM") policy to an individual's claim for damages arising out of an automobile accident in the course and scope of her employment.

The plaintiff Becky Cooper's workers' compensation claim arising out of the accident, along with another workers' compensation claim, this one for injuries sustained by the plaintiff "while getting a briefcase from her car," were settled and approved by the Chancery Court for Hamilton County. The "final order" of that court recites that the court acted upon the "joint petition of the employer, ... the insurer, ... and the employee, ...for the approval of a proposed settlement under the ...Workers' Compensation [Law]." The order does not expressly state that the plaintiff was paid any benefits for the injuries sustained in the automobile accident; but it does recite that she received all of the benefits to which she was due with respect to the two claims.

The plaintiff filed the present action against the driver and owner of the other vehicle involved in the accident and served a copy of the complaint on Pacific Employers Insurance Company, the UM carrier of the company whose automobile the plaintiff was driving at the time of the accident. The UM carrier filed a motion for partial summary judgment asserting that it is entitled to an offset corresponding to the workers' compensation benefits to which the plaintiff was entitled under the Workers' Compensation Law with respect to the automobile accident.

The trial court granted the UM carrier partial summary judgment in an order that states simply, without further elaboration, "[t]his is a final order." For several reasons, we hold that the court's order is not a final order under Tenn. R. Civ. P. 54.02. However, in the interest of the efficient administration of justice, see Tenn. R. App. P. 1, we exercise our discretion to treat this appeal as if it were before us pursuant to the provisions of Tenn. R. App. P. 9. With respect to the merits of this case, we affirm the trial court's order granting partial summary judgment and remand for further proceedings.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cooperb_112911.pdf

FRANKS dissenting:
http://www.tba2.org/tba_files/TCA/2011/cooper_DIS_112911.pdf

Court reviews whether plaintiff's misrepresentations in his application for disability benefits increased an insurance company's risk of loss

ROY L. LAWHON, v. MOUNTAIN LIFE INSURANCE COMPANY (Tenn. Ct. App. November 21, 2011)

Plaintiff made claim for credit disability insurance coverage after he became disabled, and defendant insurance company denied benefits on the grounds of misrepresentations in the application for insurance, which he had executed. The Trial Court ruled in favor of plaintiff on the grounds that misrepresentations in the application did not increase the risk of loss. On appeal, we reverse the Trial Court's Judgment because the misrepresentations contained in the application for insurance increase defendant's risk of loss under the statute.

Full opinion is available at:
http://www.tba2.org/tba_files/TCA/2011/lawhonr_112111.pdf

Court reviews whether trial court properly dismissed a medical malpractice case that was filed without a Certificate of Good Faith

PAULETTA C. CRAWFORD, ET AL. v. EUGENE KAVANAUGH, M.D. (Tenn. Ct. App. November 21, 2011)

This is a medical malpractice case in which Pauletta C. Crawford ("Wife") and James Crawford ("Husband") filed suit against Eugene Kavanaugh, M.D. ("Doctor"). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the "Crawfords") dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/crawfordp_112111.pdf

Court reviews a jury's allocation of fault and jury instructions in a case involving an injury that occurred at a construction site

BENJAMIN INDOCCIO v. M&A BUILDERS, LLC, ET AL. (Tenn. Ct. App. November 15, 2011)

This appeal arises from injuries Plaintiff sustained after falling down a staircase while working on the construction of a home. Plaintiff filed a negligence action against the general contractor and the subcontractor responsible for the construction of the custom staircase. The matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen percent at fault.

After his motion for new trial was denied, Plaintiff filed this appeal. Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor's employees used marijuana while working on the construction of the staircase, and erred by excluding evidence of misdemeanor convictions and probation violations of one of the subcontractor's employees. Plaintiff also asserts that the trial court erroneously instructed the jury regarding notice, negligence, and foreseeability.

After thoroughly reviewing the record, we find that the trial court did not abuse its discretion by excluding the evidence of alleged marijuana use or the evidence of misdemeanor convictions and probation violations. Similarly, we find that the jury instructions on notice, negligence, and foreseeability were proper. Accordingly, we affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/indocciob_111511.pdf

TWCA reviews the trial court's grant of an employee's motion to dismiss based on a prior pending suit

CEILDECK CORPORATION v. HERBERT IVEY (TWCA November 15, 2011)

This case involves a race to the courthouse after a Benefit Review Conference ("BRC"). The employee, a Dickson County resident, was allegedly injured in Davidson County during the course and scope of his employment. The employee and his employer unsuccessfully attempted to settle the employee's claim at a BRC held on October 11, 2010; an impasse was declared at 10:27:19 a.m. Employee's complaint was filed in the Chancery Court of Dickson County at 10:27 a.m. Employer's complaint was filed in the Chancery Court of Davidson County at 10:28 a.m. The employee filed a motion to dismiss the employer's Davidson County complaint based on the doctrine of prior suit pending. The trial court granted the motion, and the employer appealed. We affirm the judgment of the trial court.

Opinion is available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ceildeckcorp_111511.pdf

Court reviews a jury's determination that plaintiffs did not suffer personal injuries as a result of an explosion

CHARLES ROACH AND JOYCE ROACH V. DIXIE GAS COMPANY; BEN THOMAS WILLIAMS, JR., INDIVIDUALLY AND AS OWNER AND MANAGER OF DIXIE GAS COMPANY; SEMSTREAM, L.P.; SANTIE WHOLESALE OIL COMPANY, A DIVISION OF BLUE RHINO RELIABLE PROPANE; AND JOHN DOES 1 THROUGH 10 (Tenn. Ct. App. November 14, 2011)

This lawsuit for damages arises out of an explosion. The plaintiff customers went to the defendant propane gas facility to fill their recreational vehicle with propane. Soon after they arrived, one of the propane hoses began to leak, and propane gas vapor began to envelope the premises. After a short period of time, the propane gas tank exploded, causing devastating property damage and destroying the plaintiffs' recreational vehicle.

The plaintiffs filed this lawsuit against the defendants, alleging that they were near the explosion site when the explosion occurred, and that the explosion caused them numerous physical and psychological injuries. The defendants admitted liability and compensated the plaintiffs for their property damage. The defendants claimed, however, that the plaintiffs were not present at the explosion site when the explosion occurred and did not sustain any personal injuries caused by the explosion. After a jury trial, the jury returned a verdict in favor of the defendants, determining that the explosion did not cause any personal injuries to the plaintiffs and awarding zero damages. The plaintiffs now appeal. We affirm.

The Full Opinion may be found here:
http://www.tba2.org/tba_files/TCA/2011/roachc_111411.pdf

Court reviews whether defendant owed a legal duty to a plaintiff in a premises liability case

MARGARET A. NORFLEET v. PULTE HOMES TENNESSEE LIMITED PARTNERSHIP (Tenn. Ct. App. November 10, 2011)

While touring a model home in a new residential home development, the plaintiff fell when she failed to see a four-inch step as she walked from the foyer into the sunken living room. This premises liability action followed. The defendant constructed, owned, and managed the model home in which the plaintiff fell. Upon motion of the defendant, the trial court summarily dismissed the complaint upon two findings: that the defendant did not owe a legal duty to the plaintiff and that the plaintiff was more than fifty percent at fault. We affirm upon the finding that the plaintiff cannot establish that a duty was owed to her by the defendant.

Full opinion is available here:
http://www.tba2.org/tba_files/TCA/2011/norfleetm_111011.pdf

Courts a threat to new med mal law, TMA leader says

A Tennessee Medical Association leader this week singled out the Tennessee judiciary as a threat to the state's new medical liability law. Appearing with U.S. Rep. Marsha Blackburn, R-Tenn., at a healthcare town hall meeting this week, Dr. Keith G. Anderson -- a cardiologist and vice chairman of the Tennessee Medical Association -- said he fears Tennessee's "very liberal" and "very claims-oriented" judiciary. He singled out Tennessee Supreme Court Chief Justice Cornelia Clark, who he said "is a claims malpractice attorney." Anderson went on to say that the medical association's concern is "that there will be a case that arises that goes before the Tennessee Supreme Court that may overturn the tort reforms based on their constitutionality methodology." Instead of risking that outcome, Anderson said that an amendment to the state's Constitution or a federal law that would trump state law is needed.

The Memphis Commercial Appeal reports on the event

Court reviews the constitutionality of Tennessee's temporary disability benefits statute.

RANDSTAD NORTH AMERICA, L.P. v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. November 2, 2011)

This appeal involves the constitutionality of a statute on temporary disability benefits, T.C.A. section 50-6-238. The plaintiff employment agency refused to pay temporary disability benefits to an employee who claimed that she was disabled from an on-the-job injury.

The employee filed a request for assistance with the defendant Tennessee Department of Labor and Workforce Development pursuant to T.C.A. section 50-6-238. A workers' compensation specialist entered an order requiring the employer to pay temporary disability benefits to the employee.

The employer filed an unsuccessful administrative appeal. The employer then filed the instant petition for common law writ of certiorari alleging, inter alia, that the procedures in T.C.A. section 50-6-238 violate the employer's right to procedural due process. The trial court agreed and held the statute to be unconstitutional on its face. The State appeals. In light of this Court's recent decision in Tyson Foods v. TDOL, No. M2010-0227-COA-R3-CV, 2011 WL 4790980 (Tenn. Ct. App. Oct. 10, 2011), we reverse the decision of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randstad_110211.pdf

Court reviews a claim against an uninsured motorist carrier.

ALAN HOWARD PETERS ET AL. v. CASEY BURGESS ET AL. (Tenn. Ct. App. October 24, 2011)

Alan Howard Peters was seriously injured when his vehicle collided with logs that had rolled off a truck. He and his wife filed this personal injury action and thereafter settled their claims against the defendant tortfeasors for policy limits of $1 million. In doing so, they reserved their claim against the uninsured motorist ("UM") carrier, Cincinnati Insurance Company ("CIC").

The UM provisions in effect with CIC were set forth in an endorsement to a 2005 renewal of an umbrella policy. The UM endorsement to the original policy issued in 1999 and to the first renewal issued in 2002 expressly limited UM coverage to $1 million. A space in the 2005 renewal endorsement form that was intended for insertion of the UM policy limits was left blank, which, by default, rendered the limits of the UM endorsement equal to the $2 million liability limits of the umbrella policy. After the dismissal of the claims against the tortfeasors, CIC amended its answer to include a counterclaim asking the court to reform the policy to make the UM limits equal to the $1 million limits of the previous policies. The trial court entered an order reforming the policy. Subsequently the court entered an order dismissing the remaining claim against CIC. Mr. and Mrs. Peters appeal. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/petersa_102411.pdf

Court reviews a previous case decision in light of a United States Supreme Court decision

CLIFTON A. LAKE and CHARLEEN J. LAKE ET AL. v. THE MEMPHIS LANDSMEN, L.L.C., ET AL. (Tenn. Ct. App. October 21, 2011)

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No.W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of the United States Supreme Court's decision in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131, 179 L. Ed.2d 75 (2011).

Our conclusion, in Lake, that Appellants' claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is not disturbed by the Williamson decision because the basis of our holding involved more than preservation of the manufacturers' ability to choose under the safety regulations. Under the law of the case doctrine, and because further review would exceed the scope of the Tennessee Supreme Court's mandate, we decline to revisit our decision concerning the perimeter seating issue. Reversed and Remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lakec_102111.pdf

TWCA reviews whether an employee's injury fell within the scope of employment or whether it was a private activity

MICHAEL A. PARISH v. HIGHLAND PARK BAPTIST CHURCH ET AL. (TWCA October 18, 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 was injured when he was thrown from a horse. He alleged that the injury arose in the course and scope of his employment. His Employer contended that the Employee was engaged in a purely private activity; therefore, the injury was not compensable. The trial court denied the claim. On appeal, the Employee contends that the trial court erred by finding his injury was not related to his employment. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/parishm_101811.pdf

Court reviews whether the public duty doctrine applied in a wrongful death case

BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, and CELINE HAYES as an individual, v. LOUDON COUNTY, TENNESSEE, et al. (Tenn. Ct. App. October 14, 2011)

Joseph R. Ford and Ashley Harrison Shudan, Loudon, Tennessee, for the appellants, Barbara A. Lynch, deceased, by her sister and next of kin, Celine Hayes.

Arthur F. Knight, III., Knoxville, Tennessee, for the appellees, Loudon County, Tennessee and Bryan Blakney.

In this wrongful death action, plaintiff alleged that deceased was involved in a one car accident and the investigating officer, after her car was removed from the guardrail by the wrecker, allowed her to continue driving when he knew or should have known that she was impaired and was a danger to herself, and he violated his duties to her and shortly thereafter she had yet another one-vehicle accident which resulted in her death.

The Trial Court, responding to defendants' motion for summary judgment, found that the public duty doctrine applied and if the officer did undertake to protect deceased, she did not rely upon his undertaking. He granted defendants summary judgment. On appeal, we hold that under the public duty doctrine, plaintiff owed no specific duty to deceased, unless he undertook to assume such duty. We hold that there is disputed material evidence as to whether he assumed such duty to deceased but discontinued his aid and protection to deceased which left her in a worse position than she was before he intervened. We reverse the summary judgment and remand for further proceedings consistent with this Opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lynchb_101411.pdf

Court reviews a Wrongful Death case based upon the Public Duty Doctrine

BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, and CELINE HAYES as an individual, v. LOUDON COUNTY, TENNESSEE, et al. (Tenn. Ct. App. October 14, 2011)

In this wrongful death action, plaintiff alleged that deceased was involved in a one car accident and the investigating officer, after her car was removed from the guardrail by the wrecker, allowed her to continue driving when he knew or should have known that she was impaired and was a danger to herself, and he violated his duties to her and shortly thereafter she had yet another one-vehicle accident which resulted in her death.

The Trial Court, responding to defendants' motion for summary judgment, found that the public duty doctrine applied and if the officer did undertake to protect deceased, she did not rely upon his undertaking. He granted defendants summary judgment. On appeal, we hold that under the public duty doctrine, plaintiff owed no specific duty to deceased, unless he undertook to assume such duty. We hold that there is disputed material evidence as to whether he assumed such duty to deceased but discontinued his aid and protection to deceased which left her in a worse position than she was before he intervened. We reverse the summary judgment and remand for further proceedings consistent with this Opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lynchb_101411.pdf

Court reviews claims of lost equity in a case involving a tractor trailer collision

LEROY JACKSON, JR. v. PURDY BROTHERS TRUCKING CO., INC., ET AL. (Tenn. Ct. App. October 12, 2011)

This appeal arises from a tractor-trailer ("truck") collision involving two professional drivers, Leroy Jackson, Jr., who was driving as an owner operator for USA Trucking, and Blair B. Greene, who was employed by Purdy Brothers Trucking Company, Incorporated ("PBTCI") and Loudon County Trucking ("LCT"), both formerly doing business as Purdy Brothers Trucking ("PBT"). Mr. Jackson's truck was repossessed shortly after it was repaired, and he filed suit against Mr. Greene, PBTCI, and LCT (collectively "Trucking Company") for property damage, loss of income, lost equity in his truck, incidental expenses, and punitive damages. Trucking Company filed a motion for partial summary judgment.

The trial court granted the motion, in part, holding that Trucking Company was not liable for the lost equity in the truck but that the case could proceed on the remaining issues. Trucking Company made an offer of judgment, which was accepted by Mr. Jackson and set forth in the court's final order. Mr. Jackson appeals, contending that the court erred in granting partial summary judgment. We dismiss the appeal because Mr. Jackson accepted the offer of judgment without reserving the right to appeal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksonl_101211.pdf

Court reviews a jury verdict in a medical malpractice case.

KIMBERLY L. SMITH v. GARY E. MILLS, M.D., ET AL. (Tenn. Ct. App. October 4, 2011)

This is an appeal from a jury verdict in a medical malpractice case. The jury entered a judgment in favor of the defendants. The plaintiff has appealed. We affirm the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smithk_100411.pdf

Civil Justice Act effective today

The Tennessee Civil Justice Act of 2011 takes effect today. Legal actions for injuries, deaths and other losses that occur from today forward are subject to big changes in personal-injury and consumer-protection laws, including new caps on damage awards.

Read the full story at the Memphis Commercial Appeal.

TN Nursing Homes Get Early Christmas with New Tort "Reform"

On October 1, 2011, Tennessee's nursing homes get their first Christmas present of the year from the Republican-controlled Legislature and Governor Haslam.  That's when the state's much-less-than-stellar nursing home industry will become protected by new limits on lawsuits by those injured or killed as result of nursing home neglect.

The Tennessean accurately reports that Tennessee nursing homes rank near the bottom nationally in many key areas ranked by both the Centers for Medicare & Medicaid Services and the GAO.  Despite these rankings, and despite recent suits highlighting substandard care for nursing home patients, Republicans pushed through limits on the amount of damages patients can recover in cases of nuring home neglect.  The limits were part of Governor Haslam's "jobs-based" tort reform agenda.  It remains unclear - in fact unimagineable - how making nursing homes less accountable for patient neglect will create jobs or improve care.  But then jobs and better care for nursing home patients were not what the industry had in mind when it lobbied for the limits.  

For more information on Tennessee's nursing homes and the new reforms see The Tennessean and GAO studies.

Court reviews a dismissal based on failure to comply with the requirements of the Medical Malpractice Act

ELIZABETH CUDE v. GILBERT E. HERREN, M.D., ET AL. (Tenn. Ct. App. September 26, 2011)

The trial court dismissed Plaintiff's re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff's suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court's dismissal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cudee_092611.pdf

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

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

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

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

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

TWCA reviews whether a claim for death benefits is barred by the prior settlement of a benefits claim

NAOMI JEWELL KELLEY v. UNION CARBIDE CORPORATION (TWCA September 8, 2011)

This case involves a claim for workers' compensation benefits by the dependent spouse of a deceased employee. The decedent was exposed to asbestos in the course of his employment and contracted asbestosis as a result. His claim for benefits was settled in 1991. He died in December 2007, and his widow filed this action seeking death benefits under the workers' compensation law. The trial court awarded benefits, and the employer has appealed, contending that the widow's claim was barred by the terms of the 1991 settlement. The widow contends that the trial court incorrectly set the rate at which benefits are to be paid. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kelleyn_090811.pdf

TWCA reviews whether employee suffered a compensable injury

SEAN L. JOHNSON v. RANDSTAD NORTH AMERICA, L.P. ET AL. (TWCA September 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 suffered an episode of serious breathing difficulty after work while at home. He was transported by ambulance to a hospital where an emergency tracheotomy was performed to allow him to breathe. He alleged that this episode was caused by exposure to airborne contaminants in his workplace. His employer denied the claim.

The trial court found that the employee had sustained a compensable injury and awarded permanent total disability benefits. The employer has appealed, contending that the trial court erred by finding that employee had a compensable injury, and by finding him to be permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsons_090811.pdf

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

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

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

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

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

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

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

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

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

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

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

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

TWCA reviews employee's motion to compel medical treatment

PAUL E. KENNEDY v. LAKEWAY AUTO SALES, INC. (TWCA August 31, 2011)

When the employer refused to provide another panel of physicians following the employee's negative drug screen result, the employee filed a motion to compel medical treatment. The trial court ordered the employer to provide a panel of three doctors for pain treatment and granted the employee's request for attorney's fees. The Supreme Court referred the employer's appeal to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) (2008) and Tennessee Supreme Court Rule 51. The judgment of the trial court is affirmed and the cause is remanded for modification of the trial court's order.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kennedyp_083111.pdf

TWCA reviews an award of permanent partial disability

CHEROKEE INSURANCE COMPANY, INC. v. RALPH MCNABB (TWCA August 29, 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. Ralph McNabb ("Employee") sustained a right rotator cuff tear as the result of a motor vehicle collision while employed as a truck driver by Everhart Transportation ("Employer").

Employer was insured for workers' compensation by Cherokee Insurance Company, Inc. ("Insurer"). Employee underwent surgical repair of his right rotator cuff and was returned by Employer to a different, part-time position. Employee suffered a recurrent rotator cuff tear and thereafter retired. It is undisputed that Employee was not returned to employment at the same or greater wage than prior to his injury. Employee's treating physician and his evaluating physician both assigned him an anatomical impairment rating of 10% to the body as a whole, but with different restrictions. The trial court awarded 60% permanent partial disability ("PPD") to the body as a whole. Insurer has appealed, asserting that the award was excessive. We affirm the judgment.

Opinion available at: http://www.tba2.org/tba_files/TSC_WCP/2011/cherokeeinsur_082911.pdf

TN Supreme Court reviews conflicting impairment ratings in a workers' compensation case.

WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC (Tenn. August 25, 2011)

In June of 2008, William Mansell (the "Employee") suffered a compensable injury to his right shoulder while working for Bridgestone/Firestone North American Tire, LLC (the "Employer"). Dr. Sean Kaminsky, an orthopaedic surgeon, served as the authorized treating physician and assigned an impairment rating of 3% to the body as a whole. The Employee obtained an Independent Medical Evaluation from another orthopaedic surgeon, Dr. Robert Landsberg, who assigned a 10% impairment rating. When the Benefit Review Conference at the Department of Labor and Workforce Development ("DOL") ended in an impasse, the Employee filed suit.

The judgment of the trial court is vacated. This cause is remanded to the trial court for a hearing and determination within ninety (90) days of the date of this order of the Employee’s motion to quash the Employer’s request for a designation of a physician from the MIR registry.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/mansellw_082511.pdf

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

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

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

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

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

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

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

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

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

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

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

Tennessee Supreme Court Reviews Whether the Trial Court Properly Increased an Employee's Disability Benefits

ALICIA D. HOWELL v. NISSAN NORTH AMERICA, INC., ET AL. (Tenn. August 11, 2011)

The issue presented in this workers' compensation case is whether the employee made a meaningful return to work. Upon being released by her physician to return to work, she resigned her employment after her employer told her that she would have to return to a production line job that, based on her work experience and personal knowledge of the work conditions and her physical abilities and limitations, she did not believe she could perform.

The trial court awarded her additional benefits, ruling that she did not have a meaningful return to work and was eligible for reconsideration of her earlier settlement for workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-241 (Supp. 2010). The Special Workers' Compensation Appeals Panel reversed.

We hold that the employee did not have a meaningful return to work following her injuries and that the evidence does not preponderate against the trial court's award of increased permanent partial disability benefits. The judgment of the Appeals Panel is reversed, and the judgment of the trial court is reinstated.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/howella_081111.pdf

Court reviews whether an agency relationship existed between a mother and her son for the purpose of enforcing an arbitration agreement

DENNIS W. BLACKMON, ET AL. v. LP PIGEON FORGE, LLC, ET AL. (Tenn. Ct. App. August 25, 2011)

This is a nursing home negligence case involving an arbitration agreement. The son of the decedent signed documents admitting his mother to the defendant nursing home. The admission documents included an arbitration agreement. After his mother's death, the son filed a lawsuit on behalf of her estate against the defendant nursing home and others connected to its administration. The defendants filed a motion to compel arbitration pursuant to the agreement signed by the son. The trial court denied the motion, finding that the son was not the decedent's agent and did not have authority to sign on her behalf. The defendants appeal. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/blackmond_082511.pdf

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

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

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

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

Court reviews whether 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