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Recent Tennessee Court of Appeals Decision Finds that One Year Statute of Limitations May Not Apply to Uninsured Motorist Claims

Posted on Aug 27 2017 10:58AM by Attorney, Jason A. Lee

The Tennessee Court of Appeals in Larry Stine Bates v. Michael J. Greene, W2016-01868-COA-R3-CV, 2017 WL 3206599 (Tenn. Ct. App. 2017) dealt with an interesting issue involving the statute of limitations that applies to the filing of a claim against an uninsured motorist carrier.  The uninsured motorist carrier in this case was Shelter Insurance. The plaintiff filed suit against the defendant, the alleged tortfeasor, within one year of the accident. However, the civil warrant was returned unserved. An alias was then issued for the defendant but it was also returned unserved. Over two years after the actual accident, an amended alias civil warrant was issued against the defendant, which added Shelter Insurance Company, plaintiff’s uninsured motorist carrier, as a defendant. The uninsured motorist carrier was served over two years after the accident occurred.

 

As a result, the insurance company filed a Motion for Summary Judgment and claimed that the action against it was barred by the one-year statute of limitations applicable to personal injury actions. The circuit court agreed and granted the Motion for Summary Judgment, dismissing the case against the uninsured motorist carrier. The court found the one-year personal injury statute of limitations applied to the uninsured motorist claim.

 

On appeal, the Tennessee Court of Appeals reviewed the situation in detail. They reviewed a significant amount of prior cases as well as statutory changes to the uninsured motorist statute.  Ultimately, the Court concluded that in this case, the one-year statute of limitations for a personal injury claim did not apply. Instead, the six-year statute of limitations for a contract cause of action applied for the claim against the uninsured motorist carrier.  Multiple prior Tennessee cases have held consistent with this opinion in the past. The Court also analyzed T.C.A. § 56 -7-1206(d) which provides the following:

 

(d) In the event that service of process against the uninsured motorist, which was issued to the motorist's last known address, is returned by the sheriff or other process server marked, “Not to be found in my county,” or words to that effect, or if service of process is being made upon the secretary of state for a nonresident uninsured motorist and the registered notice to the last known address is returned without service on the uninsured motorist, the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in the case.

 

Based on this statute the Court noted that the legislator intended that a plaintiff could sue the uninsured m...


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TAGS: Uninsured Motorist, Automobile/Motorcycle Liability, Statute of Limitations Comments [0]
  
 

2017 Tennessee Legislature Adds Requirement that Terms in Tennessee Statutes are Given Their “Natural and Ordinary” Meaning

Posted on Jul 22 2017 10:10AM by Attorney, Jason A. Lee

The Tennessee Legislature passed a new law in 2017 that governs appropriate statutory construction.  This is an interesting change that has application to all of the words in the Tennessee Code that do not have a definition provided in the code.  This new law was passed as Public Chapter No. 302 and signed into law by Governor Bill Haslam on May 5, 2017, and it took effect immediately.  It is codified now in T.C.A. § 1-3-105.  This statute is not often cited to but is important to know about because it provides definitions for certain words provided for in the Tennessee Code (such as “property”, “highway”, “real property”, “age of majority”, “record” and other terms).

 

This new law provides as follows:

 

(b) As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.

 

It appears to me that this new statute is designed to prevent judicial overreach in redefining terms outside of their normal meaning.   Sometimes in cases, key terms in statutes do not have a definition within the Tennessee Code and the lawyers and the Court must interpret the term.  This new law provides guiding principles for statutory construction that are intended to prevent odd or unique interpretation of key terms in statutes.  The only way to interpret a word beyond the “natural and ordinary meaning” is if the “contrary intention is clearly manifest”.  That is a very high standard and should not be taken lightly.  I interpret that standard to be when the statute actually misuses a word and a contrary interpretation is compelled by the clear intent of the legislation.  This should rarely be applied.

 

Some specific terms that are defined in this statute (T.C.A. § 1-3-105) that may be helpful to review and remember include the following:

 

(1) “Age of majority” means eighteen (18) years of age or older; except that when purchasing, consuming or possessing alcoholic beverages, wine or beer as those terms are defined in titl...

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TAGS: 2017 Tennessee Legislation, Civil Procedure, Miscellaneous Comments [0]
  
 

Tennessee Supreme Court Finds General Contractor Not Responsible for Fire Under Res Ipsa Loquitur Theory Without Exclusive Control of Area

Posted on Jun 25 2017 2:42PM by Attorney, Jason A. Lee

The Tennessee Supreme Court recently issued an interesting opinion in a case involving a fire which caused a loss to a partially completed house. In this case, Ewin B. Jenkins v. Big City Remodeling, et al, No. E2014-01612-SC-R11-CV, 515 S.W.3d 843 (Tenn. 2017), the Court dealt with a situation where the Plaintiff’s hired a general contractor to construct a house. The general contractor subcontracted the hardwood flooring work to another contractor, which in turn subcontracted the job to another subcontractor. On October 31, 2012, the partially completed house and everything in the house were destroyed by a fire. The legal theory used by the plaintiffs against the general contractor was the theory of res ipsa loquituur to try to establish an inference of negligence on the general contractor.

 

The Tennessee Supreme Court noted that due to the fact the Plaintiffs lacked direct proof of the general contractor’s negligence, they relied upon the evidentiary principle of res ipsa loquitor to establish an inference of negligence. The phrase “res ipsa loquitur” is a Latin phrase meaning “the thing speaks for itself”. The classic case where the res ipsa loquitur doctrine was first referenced is a 19th Century English case, Byrne v. Boadle, 159 Eng. Rep. 299 (1863). In that case, a barrel of flour rolled out of a window of a warehouse and fell on a passing pedestrian. The pedestrian could not point to any specific negligent actions on behalf of the warehouse owner that actually caused the barrel of flour to hit the pedestrian.  However, the plaintiff successfully argued that this was the kind of event that would not happen without the negligence of the warehouse owner. As a result, the plaintiff in that case was successful under this theory.

 

In the Jenkins case at issue, the Tennessee Supreme Court analyzed the res ipsa loquitur doctrine in detail. In order to establish res ipsa loquitur in Tennessee, a plaintiff must show that “(a) the event that caused the injury is of a kind that ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the negligence is within the scope of the defendant's duty to the plaintiff.” Jenkins at 849. The Tennessee Supreme Court noted that res ipsa loquitur has been applied in fire loss cases in Tennessee and in other jurisdictions when the exact cause of the fire is not known. However, in those cases, the defendant had “exclusive control over the premises or the instrumentality that cause the fire.” Jenkins at 849. That is the key issue in the Jenkins case.

 

In the Jenkins case, the Court found the Plaintiff simply did not...

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TAGS: Negligence, Torts, Tennessee Premises Liability Comments [0]
  
 

Tennessee Legislator Expands Right-of-Way Law for Passing Stationary Vehicles on Side of Road

Posted on May 28 2017 4:02PM by Attorney, Jason A. Lee

As many in Tennessee are aware, a few years ago the Tennessee Legislator passed T.C.A. § 55-8-132 which provides that when an individual passes a stationary emergency vehicle on the side of the road, there are certain requirements to try to pull over or slow down, depending on the road conditions. Previously, this applied only to emergency vehicles that were using flashing light.  The prior statutory language was as follows:

 

(a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of the applicable laws of this state, or of a police vehicle properly and lawfully making use of an audible signal only:

(1) The driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection, and shall stop and remain in that position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer; and

(2) Upon the approach of an authorized emergency vehicle, as stated above , the operator of every streetcar shall immediately stop the streetcar clear of any intersection and keep it in that position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

(b) Upon approaching a stationary authorized emergency vehicle, when the vehicle is giving a signal by use of flashing lights, a person who drives an approaching vehicle shall:

(1) Proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least four (4) lanes with not less than two (2) lanes proceeding in the same direction as the approaching vehicle; or

(2) Proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions, if changing lanes would be impossible or unsafe.

 

However, the 2017 Tennessee Legislator expanded this law to now apply to any “stationary motor vehicle”.  This was done in Public Chapter No. 95, signed into law by Governor Bill Haslam on April 4, 2017 and effective on July 1, 2017.

 

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TAGS: Automobile/Motorcycle Liability, 2017 Tennessee Legislation Comments [0]
  
 

There is No Claim for Negligent Infliction of Emotional Distress on Solely Property Damage Loss Cases in Tennessee

Posted on Apr 30 2017 1:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals in Richard Lane, et al v. Estate of Gary K. Leggett, No. M2016-00448-COA-R3-CV, 2017 WL 1176982 (Tenn. Ct. App. 2017) discussed whether a Plaintiff can recover for Negligent Infliction of Emotional Distress for a claim that involves only property damage. In this case, the Plaintiff owned a business in White House, Tennessee. The Defendant rear-ended a vehicle and left the roadway at a high rate of speed, causing his car to run into the building that contained the Plaintiff’s business. The vehicle struck a gas meter which resulted in a significant fire and caused a complete loss of the Plaintiff’s business. The Plaintiff was not actually at the property at the time of the loss, but he returned shortly thereafter and witnessed the fire at his business.

 

As a result of this accident, the Plaintiff filed suit asserting that the loss of Plaintiff’s business and the great fire that was caused by the accident, as well as Plaintiff’s observations, caused him to have severe mental and emotional injuries.  He was even diagnosed with Post Traumatic Stress Disorder and Anxiety from the incident. Plaintiff therefore claimed he was entitled to recover against the Defendant under the theory of negligent infliction of emotional distress for these personal injuries.

 

The Tennessee Court of Appeals noted that to recover damages under the theory of negligent infliction of emotional distress, a plaintiff must “prove each of the elements of general negligence; duty, breach of duty, injury or loss, causation and fact, and proximate, or legal, cause. A plaintiff must also prove that he or she has suffered a serious or severe emotional injury” (Lane at p. 3) (citing Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). Interestingly, however, no case in Tennessee has explicitly held that negligent infliction of emotional distress is an appropriate claim for a plaintiff resulting from emotional injuries that solely arise out of property damage.

 

The Court reviewed Tennessee Supreme Court cases and found one case that commented on this issue, but did not have a holding on this issue directly. In that case, Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006), the Tennessee Supreme Court stated the followin...

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TAGS: Damages, Negligence, Torts Comments [0]
  
 

In Tennessee, Contractors Are Not Usually Liable for Their Subcontractor's Negligence

Posted on Apr 2 2017 4:43PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision, Joe Patton Rogers v. Bradley Dean Hadju, No. W2016-00850-COA-R3-CV, 2017 WL 1077059 (Tenn.Ct.App. 2017) discussed whether a contractor can be held responsible for the actions of their subcontractor.  In this case, there were multiple contracts between several entities for a construction project where multiple contractors subcontracted out work.  Ultimately, the Plaintiff was involved in an automobile accident that caused serious injuries to the Plaintiff.  The question, therefore, was whether a contractor can be held responsible for the actions of its subcontractor (both were sued for the accident in question).

 

The general law in Tennessee is that “where one person has sustained an injury from the negligence of another, he must, in general, proceed against him by whose negligence the injury was occasioned.” Rogers at 3.  Further, “while an employer may be held liable for the negligence of its employee, however, they are generally not liable for the negligence of independent contractors.”  Rogers at 3 (citing Givens v. Mullikin, 75 S.W.3d 383, 384 (Tenn. 2012)).  The Court then discussed how people or entities are classified as either employees or independent contractors.  Generally, the relationship can be determined by examining the agreement between parties.  The Court went on to discuss this issue as follows:

 

In determining whether an individual is an employee or an independent contractor, Tennessee courts are guided by the following factors: (1) the right to control the conduct of the work, (2) the right of termination, (3) method of payment, (4) whether or not the worker furnishes his own helpers, (5) whether or not the worker furnishes his own tools, (6) self-scheduling of working hours, and (7) freedom to render services to other entities. Goodale v. Langenberg, 243 S.W.3d 575, 582-83 (Tenn. Ct. App. 2007). Those factors, however, are not absolute, and no single factor is conclusive.  While the “right to control” is the primary test, it is not exclusive, and the entire relationship must be examined.

 

Rogers at 3.  As a result, the essence of determining whether an entity is an “employee” or an “independent contractor” is the element of control.  The Court noted that the “mere fact that the contractor reserves the right to supervise the work to ensure that the end result conforms to the plans does not make this subcontractor an employee when the contractor doe...

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TAGS: Negligence, Defenses, Torts, Construction Law, Tennessee Premises Liability Comments [0]
  
 

Foreseeability Requirement is Essential for a Tennessee Negligence Cause of Action

Posted on Mar 5 2017 7:36PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision considered the essential requirement of foreseeability for a negligence cause of action.  This case, Keane v. Campbell, III, No. M2016-00367-COA-R3-CV, 2017 WL 417220 (Tenn. Ct. App. 2017) was about a premises liability cause of action.  The facts of this case are interesting.  It involves a party hosted for high school students at the home of the Defendant.  At that party approximately 40 – 70 minors attended the party and were dancing and jumping on an elevated wooden deck attached to the Defendant’s house.  During this party, the deck suddenly collapsed and resulted in Plaintiffs’ injuries.  The Plaintiffs’ theory was basically there was a failure of the Defendant to adequately monitor and supervise the minors, failure to warn the minors of the danger on the deck, failure to take action to prevent the collapse of the deck and failure to observe what could have been observed exercising reasonable care regarding the flexing of the deck.  Essentially, the assertions in this case were that the Defendants knew or should have known of the potential issues with the deck that ultimately caused the injury to the plaintiff. 

 

At the end of the day, the decision of the trial court was based on the foreseeability requirement for a Tennessee negligence cause of action.  The trial court found the Plaintiff could not establish that the incident of the collapsing of the deck was foreseeable simply because there were individuals dancing and jumping on the deck.  In a Tennessee negligence cause of action, foreseeability is one of the required five elements to establish the cause of action.  “A plaintiff is required to prove that the injury was a reasonably foreseeable probability and that some action within the defendant's power more probably than not would have prevented the injury.  Foreseeability is thus linked with probability—the possibility of injury cannot be remote.  The fact that an injury might be conceivable is not sufficient to create a duty. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability.”  Keane at 3. 

 

The Court therefore reviewed the only testimony that was submitted by the Plaintiff on this issue. It was an affidavit of an individual who attended the party.  That individual asserted that he “had a premonition that something was going to happen because there was a ridiculous amount of people on the deck and it was going up and down as people were jumping/dancing.” Keane at 4. He further claimed in his affidavit, that he “imagined the deck falling because the deck continued going up and down as people were jumping/dancing and the deck looked overloaded and old, and [a]s a result of [his] premonition, [he] got off of the deck and went inside of the house, which is where [he] was at the time of the collapse.” Keane at 4.

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TAGS: Torts, Tennessee Premises Liability Comments [0]
  
 

Piercing the Corporate Veil in Tennessee – When Can a Judgment Against a Corporation be the Personal Responsibility of the Shareholders?

Posted on Feb 15 2017 4:41PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently decided a case (F&M Marketing Services, Inc. v. Christenberry Trucking and Farm, Inc., E2016-00205-COA-R3-CV, 2017 WL 417223_(Tenn. Ct. App. 2017)) involving a request to pierce the corporate veil of a Defendant after the Plaintiff got a substantial judgment against that Defendant for breach of contract.  The total judgment in this case was $375,524.29.  After the initial judgment was entered, the Plaintiff learned that the Defendant had no assets to satisfy the judgment.  As a result, the Plaintiff petitioned the trial to hold the primary shareholder of the Defendant personally liable for the judgment against the Defendant corporation.  The Tennessee Court of Appeals did a good job discussing the circumstances when an individual shareholder can be found personally responsible for a judgment against a corporation in Tennessee. 

 

The Court noted that the most important case outlining when it is appropriate to pierce the corporate veil in Tennessee is the FDIC v. Allen, 584 F. Supp. 386 (E.D. Tenn. 1984) decision.  The Court noted that numerous Tennessee Court of Appeals and the Tennessee Supreme Court have nearly uniformly considered the “Allen factors” that were outlined in this case many years ago.  The factors to be considered when determining whether to allow a judgment to be against individual shareholders and simply disregarding the corporate veil include the following:

 

Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.

 

F&M Marketing at 3 (quoting Rogers v. Louisville Land Company, 367 S....

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TAGS: Post Judgment Motions, Torts, Breach of Contract, Corporation/LLC Law, Miscellaneous Comments [0]
  
 

New Tennessee Court of Appeals Decision Holds that Registered Agent is Not Required to be Served at Address Listed with Secretary of State

Posted on Dec 28 2016 4:44PM by Attorney, Jason A. Lee

An interesting case dealing with a civil procedure situation was recently decided by Tennessee Court of Appeals.  This case is Ace Design Group Inc. v. Greater Christ Temple Church Inc., No. M2016-00089-COA-R3-CV 2016 WL 7166408, (Tenn. Ct. App. 2016).  In this case, the Defendant had a Registered Agent listed with the Tennessee Secretary of State with a specific address.  Initially the Plaintiff attempted to serve the Defendant’s Registered Agent at the address listed with the Secretary of State, however, it was an incorrect address for the Registered Agent, therefore, the service of process was returned “unserved”.  However, subsequent to that, the Registered Agent was served at his business address after the attorney for the Plaintiff did some research to determine where the Registered Agent was actually located.  As a result, the Registered Agent actually received service of process of the lawsuit.  Despite this fact, the Defendant Church, did not respond to the Complaint or the Motion for Default Judgment.  As a result, Default Judgment was entered against the church with damages totaling approximately $132,000.00. 

 

This case was appealed to the Tennessee Court of Appeals and the Defendant argued that actual service on the Registered Agent was not effective because it was not served on the Registered Agent at the address listed with the Secretary of State.  However, it was undisputed that the Registered Agent was actually served personally.  This argument was quite confusing because it makes no sense.  The Tennessee Court of Appeals found this argument had no merit.  Specifically, the Court found that “in serving process, it is not the address or location where service is achieved that is paramount; rather, it is whether the proper party is served that establishes compliance with the process requirements.”  Ace Design at p. 5.  The Court further stated that “personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding.” citing Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 313 (1950). 

 

The Defendant also argued that once the service was returned “unserved” at the address listed with the Secretary of State, then service needed to be completed at the church’s physical address.  The Tennessee Court of Appeals also rejected this argument.  Specifically, it found the church’s status as a Tennessee corporation required it to have a Registered Agent in the state pursuant T.C.A. 48-15-101.  This statute provides as follows: 

 

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TAGS: Civil Procedure Comments [0]
  
 

Statistics Show Damages Awarded in Tennessee Personal Injury Cases

Posted on Nov 13 2016 7:07PM by Attorney, Jason A. Lee

The most recent Tennessee judiciary annual report provided many interesting statistics on personal injury cases in Tennessee.  The most recent report covered the 2014 – 2015 fiscal year (July 1, 2014 to June 30, 2015).  Incredibly, there were only 367 total personal injury or death cases that proceeded to trial in the 2014 – 2015 fiscal year.  Of those cases, only 116 of them resulted in damages.  The total monetary award for these 116 cases that resulted in damages was $46,901,449.00.  This constitutes an average award of $404,323.00 per case where damages were awarded.  However, like in most years, these statistics are very deceiving.  Specifically, this statistic was significantly warped by one single award in Shelby County totaling $30,000,000.00.  When this one award is removed, the total damages awarded in personal injury or death trials in Tennessee for the 2014 – 2015 fiscal year totals $16,901,449.00.  This results in average award of $146,969.12. 

 

Interestingly, out of the 116 cases where damages were awarded, only 14 cases resulted in awards of $100,000.00 to $1,000,000.00.  There were only 7 cases that were awarded over $1,000,000.00 in the State of Tennessee for 2014 – 2015.  This is actually a large number of million dollar verdicts when compared to recent prior years.  The remaining 95 cases were all awarded damages somewhere between $1 and $99,999.99.  Obviously, I am sure there are very significant cases that never go to trial and are instead are settled due to apparent risks to both parties.  However these statistics show how few large jury verdicts there are in Tennessee each year.  Further, like I have discussed before, cases simply do not go to trial like they used to do.  This is unfortunate because it inhibits the ability of young litigation attorneys to gain valuable trial experience.  Fewer and fewer attorneys are obtaining real jury trial experience.  This makes is even more important to make sure you hire attorneys with real jury trail experience whether you are on the defense or plaintiff side of the case.  Also, these numbers show, once again, how favorable things are for the defense in Tennessee as Tennessee has become a more and more conservative state from a legal and political perspective. 

 

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TAGS: Tennessee Legal Statistics Comments [0]
  
 
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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