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Posted on Jun 17 2013 8:40AM by Attorney, Jason A. Lee
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Analysis: The Tennessee legislature passed Public Chapter No. 197 which was signed into
law by Governor Bill Haslam on April 23, 2013.
Public Chapter No.
197
provides a new requirement for almost every kind of health care practitioner or
health care facility that provides health care to prenatal patients or
newborns. This bill requires these health
care providers to provide infant CPR “information and instruction concerning
the appropriate use and techniques of infant cardiopulmonary resuscitation
(CPR).” TCA § 68-5-___ (the new bill did not designate a specific section for
the statute but that will be done shortly).
This new law goes into effect on July 1, 2013.
The information and instruction is required
to be provided to one (1) parent or caregiver of the newborn infant. It is also important to point out that this
new statute does not go as far as requiring classes in certification for infant
CPR. The entire text of this new statute
is as follows:
§68-5-____
(a) Hospitals, birthing centers, health care
facilities, physicians, nurse practitioners, physician assistants or other
health care practitioners who provide medical care to newborns as well as
obstetricians who provide routine care for prenatal patients shall make
available information and instruction concerning the appropriate use of
techniques of infant cardiopulmonary resuscitation (CPR) to at least one (1)
parent or caregiver of a newborn infant.
Nothing in this section shall require classes in certification of infant
CPR. This section shall also not
constitute a requirement to be assessed during any inspection under Chapter 11,
part 2 of this title.
(b) Any facility or practitioner acting
within the scope of their licensure or practice shall be immune from any civil
liability under this section and shall have an affirmative defense to...
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Posted on Jun 10 2013 9:08PM by Attorney, Jason A. Lee
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Since Tennessee adopted the doctrine of comparative
fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Tennessee Supreme Court has issued
several opinions moving away from the general abolishment of joint and several
liability. The Tennessee Supreme Court
has created several exceptions to the general rule that joint and several
liability does not apply under Tennessee’s comparative fault scheme. As a result of these exceptions created by
the Court, the Tennessee legislature addressed this issue in the 2013 Tennessee
legislative session. The Tennessee
Legislature recently passed Public Chapter No. 317 which was signed
into law by Governor Bill Haslam on April 29, 2013. It created T.C.A. § 29-11-107 which is in effect
for all causes of action that accrue on or after July 1, 2013. The key language in this bill is subsection
(a) which provides:
(a) If multiple defendants are found liable in a
civil action governed by comparative fault, a defendant shall only be severally
liable for the percentage of damages for which fault is attributed to such
defendant by the trier of fact, and no defendant shall be held jointly liable
for any damages.
As a result of this new bill, the
Tennessee Legislature has codified the abolishment of joint and several
liability in almost all circumstances in Tennessee. There are only two exceptions that remain. These exceptions are found in subsection (b)
which provides:
(b)
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Posted on Jun 3 2013 9:31AM by Attorney, Jason A. Lee
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Brief
Summary: A waiver and release of liability document
signed by a participant in a motorcycle safety training course is enforceable
and binding on the plaintiff. The
plaintiff’s claim was therefore barred by the executed waiver and the plaintiff
could therefore not bring a claim for negligence against the motorcycle safety
and training course company.
I
apologize for the length of this post. However, this is an important issue and I want
to give you a complete picture of the opinion.
Analysis: The Tennessee Court of Appeals in Ruth M. Maxwell v.
Motorcycle Safety Foundation, Inc., No. M2012-000699-COA-R3-CV, 2013 WL 357600
(Tenn. Ct. App. January 29, 2013) discussed the enforceability of a waiver
and release of liability agreement signed prior to the injury in question. In this case, the plaintiff desired to learn
how to ride a motor scooter. Maxwell at 1. As a result, she took a motor scooter safety
class with the defendant in order to learn how to safely operate a motor
scooter. Maxwell
at 1. This course was a
three-day basic rider beginner course.
The course is not required to obtain a motorcycle endorsement or
driver’s license, however upon proof of completion the Tennessee Department of
Motor Vehicles waives the written and riding exams ordinarily required for a
motorcycle endorsement on the license. Maxwell at 1.
Before the course began the plaintiff was
required to read and sign a “waiver of release of liability”. This waiver document stated as follows:
READ CAREFULLY WAIVER OF RELEASE OF LIABILITY
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Posted on May 28 2013 8:19AM by Attorney, Jason A. Lee
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Every year the Tennessee Administrative Office of the
Courts
publishes the “Annual Report of
the Tennessee Judiciary” to provide, in part, information on appellate cases
in Tennessee (this report also provides comprehensive statistics on the trial
courts in Tennessee). The fiscal year,
2011 - 2012 (July 1, 2011 – June 30, 2012), report is the most recent report
that has been released and it provides fascinating details about all aspects of
Tennessee litigation. This post will
concentrate on some statistical information on interlocutory (Rule 9) and extraordinary
(Rule 10) Appeals in Tennessee. I cannot
cover everything in this post so I recommend you review the full
report
if you have the opportunity. It is 339
pages long so there is a lot of good statistical information.
Interlocutory
Appeal by Permission of the Trial Court:
Under Tennessee Rule of
Appellate Procedure 9,
parties have the ability to pursue an interlocutory appeal by permission from
the trial court. An interlocutory appeal
is an appeal in a case before the entire case is final. Under Rule 9, a party must file a motion
seeking an interlocutory appeal within 30 days “after the date of entry of the
order appealed from.” If the trial court
grants this motion, a party is not guaranteed to be heard by the appellate
court. Rule 9 provides that if the trial
court grants the motion, then an application for permission to appeal must be
filed with the appellate clerk within 10 days of the trial court order. Then, “the appellate court may thereupon in
its discretion allow an appeal from the order.”
If the intermediate appellate court denies the application for
permission to appeal, then a “Application for Permission to Appeal from Denial
of Rule 9 Application” can be filed with the Tennessee Supreme Court.
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Posted on May 20 2013 8:10AM by Attorney, Jason A. Lee
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Analysis: The recent Tennessee Court of Appeals
decision of Robert Thomas
Edmunds v. Delta Partners, LLC, No. M2012-00047-COA-R3-CV, 2012 WL 6604580
(Tenn. Ct. App. December 18, 2012) discussed the concept of piercing the
corporate veil under Tennessee law. This
case, in part, dealt with what is required to be established under Tennessee
law in order to pierce the veil of a corporation. In short, the doctrine of piercing the
corporate veil allows, in certain circumstances, individual members or
executives of a corporation (including an LLC - Limited Liability Company) to
be personally responsible for the liabilities of the corporation. This cased involved a dispute between an
employer and a former employee over back pay (see detailed prior
post on this same case on what constitutes an employment contract under
Tennessee law).
Edmunds at 1 - 3. The employee was ultimately awarded damages
by the trial court which were affirmed by the Appellate Court for back pay
pursuant to an employment contract. Edmunds at 4 - 5. The plaintiff
tried to hold the owner of the company personally responsible under the
doctrine of “piercing the corporate veil”.
The Tennessee Court of Appeals in this
case discussed that a corporation is presumed to be a distinct legal entity
that is separate from its members, shareholders, officers, as follows:
There is a
presumption that a corporation is a distinct legal entity, wholly separate and
apart from its shareholders, officers, directors, or affiliated corporations.
In an appropriate case and in furtherance of the ends of justice, the separate
identity of a corporation may be discarded and the individual or individuals
owning all its stock and assets will be treated as identical to the
corporation. Discarding the fiction of
the corporate entity, or piercing the corporate veil, is appropriate when the
corporation is liable for a debt but is without funds to pay the debt, and the
lack of funds is due to some misconduct on the part of the officers and
directors.
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Posted on May 6 2013 9:26PM by Attorney, Jason A. Lee
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Analysis: The Tennessee Court of Appeals recently
discussed the important issue of when a document or series of documents should
be considered an “employment contract” under Tennessee law in Robert
Thomas Edmunds v. Delta Partners, LLC, No. M2012-00047-COA-R3-CV, 2012 WL 6604580
(Tenn. Ct. App. December 18, 2012).
In this case the employee received several documents from his employer
about his employment with Delta, the employer.
These documents included both a non-disclosure agreement and a
non-competition agreement, to which the employee agreed to and signed. (Edmunds
at 1). These employment documents (that the employee
and employer executed) included the following language:
In consideration
of the performance of all services required by Delta
[ ], the confidentiality provisions and covenant not-to-compete set forth
herein, the Company [i.e. Delta] agrees to pay
Employee [i.e. Mr. Edmunds] a salary outlined in
the Employee Offer Letter. This initial salary and other benefits provided to
Employee pursuant to the Offer Letter may, from time to time as agreed by
Employee and Company, be modified.
It is of note that both the employer
representative and the employee signed the documents as well as the offer
letter identifying the $65,000.00 starting salary. (Edmunds at 1). A dispute eventually arose about the
compensation the employee was owed after the employer informed the employee in
2006 that the employer could no longer afford to pay the employee. (Edmunds at 1). Despite this representation from the
employer, the employee continued to work for the company "out of personal
loyalty" for over two years despite the fact he was only sporadically paid
by the employer. (Edmunds at 1 - 3). Eventually the employee resigned in the fall
of 2008 and then brought suit against the employ...
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Posted on Apr 29 2013 8:44AM by Attorney, Jason A. Lee
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Brief Summary: The recent Tennessee Court of Appeals decision of Karim Skaan v. Federal Express Corporation, No. 2011-01807-COA-R3-CV, 2012 WL 6212891 (Tenn. Ct. App. December 13, 2012) discussed whether parties can shorten a statute of limitations time period for a retaliatory discharge claim in an employment contract. The pertinent facts for purposes of this post are that Federal Express hired Mr. Skaan in 1999 as an employee and in the employment paperwork Mr. Skaan signed an employment agreement. Skaan at 1, 2. Paragraph 15 of the employment agreement provided as follows:
To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.
Skaan at 2. As a result, the plain language of the employment agreement requires that any legal action against Federal Express Corporation by the employee must be filed within six months of the date of the event forming the basis of the lawsuit (or the time period could be even less than six months if the law provides). Skaan at 2. Mr. Skaan was terminated from his job by Federal Express. He claimed he was terminated due to the filing of a workers compensation claim. Skaan at 2.
Mr. Skaan did not file any claim against Federal Express until eight months after his termination from his employment. Skaan at 2. This case has lots of facts and interesting information pertaining to what evidence was presented on appeal however for our purpose the issue we are discussing in this post simply pertains to whether...
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Posted on Apr 22 2013 7:53AM by Attorney, Jason A. Lee
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Analysis: The recent Tennessee Court of Appeals
decision of Brooke Buttrey v.
Holloway's, Inc., No. M2011-01335-COA-R3-CV, 2012 WL 6451802 (Tenn. Ct. App.
December 12, 2012)
discussed the Tennessee tort of intentional misrepresentation in the context of
a construction defect case. In this case
the trial court found there was ample evidence the home was not constructed in
a workmanlike manner. Buttrey at 5. In fact the defendant did not even appeal
this issue to the Tennessee Court of Appeals.
However, the defendant did appeal the trial court's ruling that the
defendant was responsible for intentional misrepresentation under Tennessee
law.
Under Tennessee law in order to establish
a claim for fraudulent or intentional misrepresentation (these two torts have
identical elements) the plaintiff must prove the following:
1) the defendant
made a representation of an existing or past fact; 2) the representation was
false when made; 3) the representation was in regard to a material fact; 4) the
false representation was made either knowingly or without belief in its truth
or recklessly; 5) the plaintiff reasonably relied on the misrepresented
material fact; and 6) the plaintiff suffered damage as a result of the
misrepresentation.
Buttrey at 5 (citing Walker v. Sunrise
Pontiac – GMC Truck, 249 S.W.3d 301, 311 (Tenn. 2008)). One of the alleged misrepresentations in this
case was testified about by the plaintiff as follows:
Q: When you approached Mr. Holloway
about building this home, did he make any representati...
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Posted on Apr 11 2013 3:04PM by Attorney, Jason A. Lee
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Analysis: The Tennessee Supreme Court recently decided a case pertaining to the liability of an assisted living facility's management company for failing to provide appropriate staff to the facility (Celebration Way facility). Wilson v. Americare Systems, Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078 (Tenn. 2013). At trial the jury found the management company (Americare Systems, Inc.) of an assisted living facility was negligent, causing the death of a resident, based on the fact it understaffed the facility. Wilson at 1. The resident of the facility, Mable Farrar, died from a perforated colon. The testimony at trial showed that the assisted living facility failed to follow Ms. Farrar’s physician’s order to administer medicine for constipation. Wilson at 1. As a result of this failure to provide the prescribed medicine, Ms. Farrar became significantly constipated and her doctor therefore ordered the assisted living facility to give her three to four enemas a day. Wilson at 1. The assisted living facility only gave Ms. Farrar one enema on the first day after the order, none on the second day and one on the third day. On the third day, after she received the enema, her colon perforated and she died. Wilson at 1, 2. The testimony at trial established she should not have been provided an enema by the facility nurse based on her physical status at that time.
Testimony at trial showed there were only two licensed nurses that worked at this facility. Wilson at 7. One of the nurses testified she was "always on call, twenty-four hours a day". Wilson at 7. The two licensed nurses had to cover a lot of shifts and were not paid overtime compensation because they were salaried employees. Wilson at 7. The nurses that worked at the facility as well as the regional operations director for the assisted living facility management company testified there were staffing problems at the facility. There were numerous complaints from the staff at the facility requesting additional staffing in order to be able to provide adequate care for the residents. Wilson at 6-8. Despite these complaints, no additional staffing was provided to the facility. Wilson at 7, 8
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Posted on Apr 9 2013 11:55PM by Attorney, Jason A. Lee
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Every year the Tennessee Administrative Office
of the Courts publishes the “Annual
Report of the Tennessee Judiciary” to provide information on cases filed
and decided in Tennessee. I previously provided an article showing the percentage of
trials in each Tennessee jurisdiction that resulted in damages (for personal
injury or death cases) for fiscal year 2011-2012. Based on the positive response to that
article, I decided a longer term review was warranted to get more accurate
numbers on how conservative or liberal a particular Tennessee jurisdiction is for
trials involving personal injury cases.
The statistics in the below chart are for a seven year period from July
1, 2005 – June 30, 2012. I will list the
counties in order with the...
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Posted on Apr 3 2013 11:49PM by Attorney, Jason A. Lee
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The
Tennessee legislature is considering many interesting pieces of legislation in
the 2013 legislative session. One bill
that is of great interest to Tennessee attorneys as well as anyone handling Tennessee
personal injury claims is SB 1184/HB 0978. The bill is aptly named the “Phantom Damages
Elimination Act”. This bill would
effectively abolish the collateral source rule in Tennessee.
The
collateral source rule prevents a defendant from introducing evidence that the
injured plaintiff received payments from any other source to try to reduce or mitigate
the damages sustained by the plaintiff.
The Tennessee Court of Appeals in Fye v. Kennedy,
991 S.W. 2d 754, 763 (Tenn. Ct. App. 1998) stated that:
An
injured party's right to recover his or her “reasonable and necessary expenses”
must be viewed in connection with the collateral
source rule: Normally,
of course, in an action for damages in tort, the fact that the plaintiff has
received payments from a collateral
source, other than the
defendant, is not admissible in evidence and does not reduce or mitigate the
defendant's liability.
See
also John
Day’s detailed discussion of the collateral source rule on his blog for a
more detailed discussion of the collateral source rule.
Proposed
SB 1184/HB 0978
would effectively eliminate the collateral source rule in Tennessee. In fact, the language in the bill would only
allow a plaintiff in a personal injury or wrongful death case to recover economic
damages for medical and other costs of medical care for:
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