Manufactured Home Arbitration Clause Held Unconscionable and Unenforceable

The Tennessee Court of Appeals in Richard A. Berent v. CMH Homes, Inc., et al., ruled that an arbitration clause which forces all of plaintiff home buyer's claims to arbitration but allows finance company access to courts is unconscionable and unenforceable.  Applying the Tennessee Supreme Court's holding in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 1996), the Court of Appeals held against CMH Homes, Inc. and Vanderbilt Mortgage ruling that the arbitration clause must fail.  The opinion seems to invite review by the TSC as to whether its holding in Taylor remains viable.  Read the full opinion here.

GM Recalls 200,000 More SUVs Due to Fire Risk

General Motors has issued a recall of an additional 200,000 SUVs due to a defect in the power window and door module that can lead to a fire. The company said that moisture can seep into the driver-side door and cause the electronics to overheat and short circuit, posing a fire risk. The recall covers 2006-07 models of the Chevrolet Trailblazer, GMC Envoy, Buick Rainier, Saab 9-7x, Isuzu Ascender, 2006 Chevrolet Trailblazer EXT and GMC Envoy XL.  
Full Story at:
http://www.usatoday.com/story/money/cars/2013/06/16/general-motors-chevrolet-buick-saab-gmc-isuzu-suv-recall/2428061/

TWCA reviews whether an employee suffered a compensable injury that left him partially disabled

STEPHEN D. GOOD v. SUNKOTE PLASTIC COATINGS CORPORATION ET AL. (TWCA December 19, 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 sought workers' compensation benefits, alleging that he injured his back at work on September 30, 2008, and is now totally and permanently disabled. The employer denied that the employee sustained a compensable work-related injury, but alternatively argued that the employee is not totally and permanently disabled.

The trial court concluded that the employee sustained a compensable work-related injury and awarded 80% permanent partial disability benefits. The employer has appealed, arguing that the evidence preponderates against the trial court's finding that the injury was compensable and that, even if the employee proved a compensable injury, the evidence preponderates against the award of 80% permanent partial disability benefits. We affirm the trial court's judgment.

Opinion available at:
https://www.tba.org/sites/default/files/goods_121912.pdf

Court reviews a case involving an automobile accident

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

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

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

Court reviews a case involving battery, intentional infliction of emotional distress, and business-related claims

SARAH HURST v. COLMAN S. HOCHMAN, ET AL. (Tenn. Ct. App. December 14, 2012)

Sarah Hurst ("Hurst") sued Colman S. Hochman ("Hochman") and Hochman Family Partners, L.P. ("the Partnership") alleging that Hochman had committed a battery upon her, and seeking damages for battery and intentional infliction of emotional distress among other things.

After a trial, the Trial Court entered its Final Decree that, inter alia, awarded Hurst damages of $2,500 against Hochman for battery; denied Hurst's claims for intentional infliction of emotional distress, discrimination under the Fair Housing Act, and punitive damages; and dismissed Hurst's claims against the Partnership. Hurst appeals raising issues regarding whether the Trial Court erred in denying her claim of discrimination under the Fair Housing Act and in dismissing her claims against the Partnership. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/hursts_121412.pdf

Court reviews whether the trial court had proper jurisdiction to review an administrative order from the Labor Department

C.H. GUENTHER & SON, INC. v. SUE ANN HEAD ET AL. (Tenn. Ct. App. December 10, 2012)

An employee appeals the trial court’s decision to void a final administrative order by the Department of Labor awarding the employee attorney fees with respect to the employee’s actions to enforce a workers’ compensation settlement. We have determined that the applicable request for assistance process does not constitute a contested case under the Uniform Administrative Procedures Act and that the trial court therefore lacked subject matter jurisdiction to hear this matter. We reverse the decision of the trial court.

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

TWCA reviews whether an employee's injury was compensable.

SCOTT D. STRAIN v. MR. BULT’S, INC. ET AL. (TWCA November 29, 2012)

An employee alleged that he sustained an injury to his back. His employer denied the claim. The trial court found the injury to be compensable and awarded the employee 30% permanent partial disability benefits. The employer has appealed contending that the evidence preponderates against the trial court’s finding that the injury is compensable. On appeal, the employee asserts that the award of benefits was inadequate. After review of the record, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/strains_112912.pdf

Court reviews a medical malpractice case re-filed by the original plaintiff's heir following her death

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H. Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC. (Tenn. Ct. App. November 27, 2012)

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit.

Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/bullockd_112712.pdf

Court reviews the appropriate classification of employees for worker's compensation insurance coverage

ADVANTAGE PERSONNEL CONSULTANTS, INC. v. TENNESSEE DEPARTMENT OF COMMERCE ET AL. (Tenn. Ct. App. November 27, 2012)

This matter involves a disagreement between an insurer and an insured over the proper classification of employees for the purpose of workers’ compensation insurance. The decision of the Department of Commerce and Insurance was in favor of the insurer. The insured appealed to the trial court, which affirmed the Department. We find that the decision of the Department of Commerce and Insurance is supported by substantial and material evidence and affirm the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/advantage_112712.pdf

TWCA reviews whether the right to reconsideration of a settlement is triggered by an across-the-board wage reduction

RON W. ROBINSON v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA November 21, 2012)

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 pursuant to Tenn. Sup. Ct. R. 51.

The employee injured his neck in the course of his employment in 2005. He returned to work for his pre-injury employer and settled his claim subject to the one and one-half times impairment cap.

In 2009, the employer entered into a new collective bargaining agreement in which the hourly wages of all production workers were reduced. Thereafter, the employee sought reconsideration on his earlier settlement pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B) (2008). The trial court held that the across-the-board wage reduction did not trigger the right to reconsideration and denied the employee’s claim. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/robinsonr_112112.pdf

Court reviews competing claims to the proceeds of a life insurance policy.

STONEBRIDGE LIFE INSURANCE COMPANY, GWENDOLYN R. WILLIAMS v. ONZIE O. HORNE, III (Tenn. Ct. App. November 21, 2012)

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds.

Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer.

We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/williamsg_11212012.pdf

Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf

Court reviews whether a child was a resident of a household for the purposes of insurance liability

COTTON STATES MUTUAL INSURANCE COMPANY v. JAMI McNAIR TUCK, ET AL. (Tenn. Ct. App. November 9, 2012)

An insurance company filed a declaratory judgment action seeking a declaration that mother and child were residents of the insured’s household, and therefore, that coverage for the death of the child was excluded by the relevant homeowner’s insurance policy. The chancery court found that mother and child were not residents of the insured’s household at the time of the child’s death, and we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cottonstates_110912.pdf

Court reviews whether a medical expert failed to identify the standard of care in a wrongful death case

BRENDA GRIFFITH, NEXT OF KIN OF DECEDENT, BOB GRIFFITH v. DR. STEPHEN GORYL AND UPPER CUMBERLAND UROLOGY ASSOCIATES, P.C. (Tenn. Ct. App. November 1, 2012)

In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.

The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.

We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.

Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf

Tennessee Supreme Court reviews an emotional distress case involving the mishandling of a corpse.

RONDAL AKERS ET AL. v. PRIME SUCCESSION OF TENNESSEE, INC. ET AL. (Tenn. October 26, 2012)

Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged mishandling of their deceased son’s body, which had been sent to Mr. Marsh’s crematorium for cremation. Following a jury verdict for the Akerses, the trial court entered judgment against Mr. Marsh based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on the Akerses’ Tennessee Consumer Protection Act (“TCPA”) and bailment claims. The Court of Appeals affirmed.

We hold the trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Mr. Marsh’s invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. The judgments of the trial court and the Court of Appeals are affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/akersr_COR_102612.pdf

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

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

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

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

Court reviews whether a municipality's 911 operator negligently failed to summon emergency personnel from a neighboring county

LORI GREGORY, IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES BALLENTINE v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn. Ct. App. October 29, 2012)

This is a negligence claim under Tennessee’s Governmental Tort Liability Act. The decedent was involved in a serious vehicular accident. A witness called the defendant municipality’s 911 emergency communications center for help. The 911 responders went to the accident scene and transported the decedent to a local hospital, where he died.

The decedent’s mother filed this lawsuit against the municipality, alleging that the 911 operator was negligent in failing to summon emergency personnel from a neighboring county, because those responders were closer to the scene of the accident and could have provided aid to the decedent sooner. The municipality filed a motion for judgment on the pleadings, arguing inter alia that it owed no duty to summon aid outside of its jurisdiction. The trial court granted the motion, and the plaintiff now appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/gregoryl_102912.pdf

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

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

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

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

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

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

Court reviews whether a nurse assistant abused an elderly person in his care at a nursing home.

DANIEL A. RILEY, C.N.A. v. JOHN DREYZEHNER, M.D., M.P.H., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TENNESSEE DEPARTMENT OF HEALTH (Tenn. Ct. App. October 22, 2012)

Appellant nurse assistant’s name was placed on the Abuse Registry after the Appellee Tennessee Department of Health concluded that he had committed an act of abuse on an elderly person in his care at a nursing home. Appellant appeals, arguing that substantial and material evidence does not exist to show that he committed an act of abuse on the nursing home resident. Having determined that substantial and material evidence in the record supports the decision of the Tennessee Department of Health, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/rileyd_102212.pdf

Court reviews whether an auto insurance policy covers damages resulting from a car owner's independent acts of negligence in a case involving a car accident

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL. v. SOUTHERN TRUST INSURANCE COMPANY (Tenn. Ct. App. October 24, 2012)

This is a dispute between insurance companies over coverage related to a car accident. We conclude that the trial court erred in finding that the driver’s auto policy covered damages resulting from the independent acts of negligence of the car owner.

Opinion available at:
https://www.tba.org/sites/default/files/statefarm_102412.pdf