Day on Torts

June 22, 2026

Plaintiff not entitled to pursue claim directly against UM insurance carrier.

In a car accident case, where the plaintiff’s summons to the other driver was returned with a note from the process server stating that the defendant was “avoiding service/said he would not cooperate,” the plaintiff was not entitled to proceed directly against her uninsured motorist insurance carrier.

In Urquia v. Seal, No. W2024-01842-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2026), the plaintiff filed a personal injury suit against the defendant following a car accident. The summons to the defendant was returned, stamped “NOT TO BE FOUND AFTER DILIGENT SEARCH AND INQUIRY.” In addition to this stamp, the process server hand wrote on the summons that the defendant was “avoiding service/ said he would not cooperate.”

The plaintiff did not make any further attempt to serve the defendant. When the one-year statute of limitations on the plaintiff’s claim against the defendant ran, the plaintiff’s uninsured motorist insurance carrier filed a motion for summary judgment, asserting that the plaintiff was “unable to proceed against it directly as the uninsured motorist insurance carrier because the action had not been properly commenced against the uninsured motorist.” After a hearing, the trial court granted summary judgment to the insurance company, and the Court of Appeals affirmed.

June 18, 2026

HCLA dismissal based on insufficient HIPAA authorizations affirmed.

by The Law Offices of John Day, P.C.

Where a HIPAA authorization only allowed the healthcare professionals to release records, not to obtain them, the Plaintiff had failed to substantially comply with the HCLA and dismissal was affirmed.

In Moxley v. AMISUB SHF Inc. d/b/a Saint Francis Hospital, No. W2025-00443-COA-R3-CV (Tenn. Ct. App. Mar. 13, 2026) (memorandum opinion), the plaintiff filed a health care liability suit against the defendants based on alleged medical negligence during her cancer treatment. The plaintiff had sent pre-suit notice to twelve possible defendants, but the HIPAA authorizations included with those pre-suit notices only stated that the receiving entity could release records to certain other entities. The HIPAA authorizations did not contain any language “stating that [the defendants] could ‘obtain’ any medical records.”

The defendants filed a motion to dismiss, asserting that the plaintiff failed to comply with the HCLA requirements found in Tenn. Code Ann. § 29-26-121. On this third appeal in this case, the Court of Appeals affirmed dismissal based on the insufficient HIPAA authorizations.

June 16, 2026

TPPA petition denied where business letter was not protected by First Amendment.

by The Law Offices of John Day, P.C.

An email from a music publisher to a license company requesting that royalties from certain songs be credited to the publisher did not fall within the protections of the U.S. Constitution, and the Tennessee Public Protection Act therefore did not apply.

In 4U2ASKY Entertainment, Inc. v. Offor, No. M2023-00238-COA-R3-CV (Tenn. Ct. App. Mar. 9, 2026), the plaintiff music publisher sued the defendant musician for breach of contract. After lengthy litigation, the musician eventually filed for bankruptcy, which prompted the negotiation of an agreed order stating that the publisher had all right and title to music created by the musician from August 18, 2015, through December 15, 2017.

The publisher subsequently sent a letter to a licensing company stating that it owned “100%…rights in the songs written…, performed, etc., of Blessing Offor…” The publisher attached the agreed order to this letter. The musician, however, provided the licensing company a list of the songs that were actually included within the time limitations of the agreed order. The licensing company wrote back to the publisher expressing concerns with its earlier communication and stating that only the songs identified by the musician would be transferred to the publisher’s ownership.

June 16, 2026

Recreational Use Statute applied when plaintiff fell on sidewalk while camping.

by The Law Offices of John Day, P.C.

Dismissal based on the Recreational Use Statute was affirmed where the plaintiff tripped on an uneven sidewalk while camping at a state park.

In Thompson v. State of Tennessee, No. M2025-00518-COA-R3-CV (Tenn. Ct. App. Mar. 25, 2026), the plaintiff went to a state park to camp for the weekend. While walking on a sidewalk to the bathroom, the plaintiff tripped. The sidewalk was later determined to be uneven with the road at an intersection. According to a park ranger, the area had previously been painted yellow but the paint had faded.

The plaintiff filed this premises liability case with the Claims Commission, and the state filed a motion to dismiss based on the Tennessee Recreational Use Statute (TRUS). The Claims Commission found that the TRUS applied and granted dismissal, and the Court of Appeals affirmed.

May 12, 2026

TPPA dismissal affirmed where Plaintiff offered no evidence.

by The Law Offices of John Day, P.C.

Dismissal under the TPPA was affirmed where the plaintiff did not attempt to establish a prima facie case after the TPPA petition to dismiss was filed.

In Secure Air Charter, LLC v. Barrett, No. M2025-00312-COA-R3-CV (Tenn. Ct. App. Feb. 19, 2026), the defendant filed reports with the FAA after being terminated by the plaintiff. Based on these filings, the plaintiff filed this case against the defendant, asserting claims for tortious interference with business relationships.

The defendant filed a petition to dismiss under the Tennessee Public Participation Act (“TPPA”). The defendant argued that his filing of the FAA reports constituted him exercising his right to petition and right to free speech, so the TPPA applied. The defendant attached his own declaration to the petition, which stated that he filed the reports “to encourage review of an issue by a federal governmental body, and in the hopes of protecting the public.” In response to this petition, the plaintiff did not present any evidence or attempt to make a prima facie case. Instead, the plaintiff argued that the declaration was inadmissible and filed a motion to amend its complaint to instead assert a breach of contract claim.

May 7, 2026

Dismissal due to failure to file certificate of good faith affirmed.

by The Law Offices of John Day, P.C.

Where a Tennessee HCLA complaint was dismissed because the plaintiff failed to file a certificate of good faith with her first complaint and the certificate of good faith filed with her amended complaint was not sufficient, but the plaintiff only addressed one ground in her appeal, dismissal was affirmed.

In Moses v. State of Tennessee, No. W2025-00386-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2026), the plaintiff filed a pro se HCLA claim against the state after experiencing complications after a root canal. When the plaintiff filed her initial complaint with the Claims Commission, she failed to file a certificate of good faith. After the state filed a motion to dismiss, the plaintiff filed an amended complaint and included a certificate of good faith. The plaintiff asserted that “her amended complaint cured any issues related to her original failure to file a certificate of good faith.” The state then filed a motion to strike the amended complaint and certificate of good faith, as well as a brief in support of its motion to dismiss.

The Claims Commission granted the motion to dismiss, finding that 1) the plaintiff failed to file a certificate of good faith with her original complaint as required in Tenn. Code Ann. § 29-26-122 or to file a “properly supported motion for an extension of time,” and 2) that the certificate filed with her amended complaint was insufficient under the HCLA, as it “merely stated that [the plaintiff] had consultations with experts, and…she failed to identify individual defendants in the certificate.” Dismissal was affirmed on appeal.

May 5, 2026

Tennessee “Litigation Privilege” applied to statements made to opposing counsel in divorce case.

by The Law Offices of John Day, P.C.

Where a lawyer made reasonable arguments within the context of a divorce case, the litigation privilege barred claims against her based on those arguments.

In Missel v. Larkins, No. E2025-00419-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2026), the plaintiff inadvertently included his son and daughter-in-law on a deed for a home in which all the parties lived. By the time this deed error was discovered, the son and daughter-in-law were involved in divorce proceedings, in which the defendant attorney represented the daughter-in-law.

At some point, the daughter-in-law gave a sworn statement that she did not own any real property. The inclusion of her name on the deed was later discovered, and defendant attorney communicated to the son’s attorney that the daughter-in-law could not sign a quitclaim deed for the property, as such a transfer of property could violate the temporary injunction against the transfer of any marital property.

April 30, 2026

No Privilege for AI: Judge Rakoff’s Decision in United States v. Heppner and What It Means for Practitioners

by The Law Offices of John Day, P.C.

In a memorandum opinion that every trial lawyer should read, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York has ruled that a criminal defendant’s written exchanges with the generative AI platform Claude are protected by neither the attorney-client privilege nor the work product doctrine. The decision appears to be the first of its kind nationwide, and its reasoning carries significant implications for how lawyers counsel clients — and for how clients use AI tools — in the shadow of litigation.

The Facts

In United States v. Heppner, No. 25 Cr. 503 (S.D.N.Y. Feb. 17, 2026), Bradley Heppner was indicted in October 2025 on charges of securities fraud, wire fraud, conspiracy, making false statements to auditors, and falsifying corporate records arising from his alleged conduct as an executive of GWG Holdings, Inc. Following his arrest, FBI agents executed a search warrant at his home and seized, among other materials, approximately thirty-one documents memorializing communications Heppner had with Claude, the AI platform operated by Anthropic. These exchanges — which Heppner’s counsel described as “reports” outlining potential defense strategy and legal arguments — were prepared by Heppner on his own initiative, after he had received a grand jury subpoena and it was clear he was a target of the investigation. Counsel conceded, critically, that they had not directed Heppner to use Claude.

April 24, 2026

Wrongful death plaintiff could rely on HCLA notice previously sent by disqualified surviving spouse.

by The Law Offices of John Day, P.C.

Where a surviving spouse gave pre-suit notice under the HCLA of a wrongful death claim, but the surviving spouse was later found to have abandoned the decedent, the correct party plaintiff could rely on the pre-suit notice sent previously by the surviving spouse.

In Anderson v. Saint Thomas Midtown Hospital, No. M2024-00687-COA-R9-CV (Tenn. Ct. App. Jan. 21, 2026), the decedent died after receiving care at defendant hospital. After the death, the decedent’s mother attempted to give pre-suit notice of a potential HCLA claim to the hospital, but the hospital refused to identify other potential defendants because it could not confirm that the mother was authorized to act on behalf of the decedent.

The decedent had a surviving spouse, who gave timely pre-suit notice of a wrongful death claim under the HCLA. The decedent’s mother filed a motion to replace the surviving spouse as administrator of the estate, asserting that the decedent was abandoned by the surviving spouse. The probate court did not grant the mother’s motion until after the one-year statute of limitations for the medical malpractice claim had expired.

April 8, 2026

Dismissal affirmed based on the plaintiff’s failure to appeal both grounds cited by the trial court.

by The Law Offices of John Day, P.C.

Where the trial court found that the statute of limitations barred an HCLA claim based on two different grounds, but the plaintiff only appealed one of those grounds, dismissal was affirmed.

In Bartsch v. Premier Orthopaedics & Sports Medicine, PLC, No. M2024-00971-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2025), the plaintiff filed a health care liability suit against his surgeon’s employer based on a surgery that occurred in April 2022. Pre-suit notice letters were sent to several providers, and one of the addresses listed for the surgeon was “Hughston Clinic Orthopaedics, PC.”

The plaintiff first filed suit in federal court based on diversity jurisdiction in July 2023, naming only The Hughston Clinic Southeast, PC as a defendant. According to the complaint, the clinic was the surgeon’s employer. The clinic responded by stating that it was not the surgeon’s employer and not a proper party to the lawsuit. In its answer, the clinic named Premier Orthopaedics & Sports Medicine, PLC (“Premier”), as the surgeon’s actual employer.