Where plaintiff brought suit against a trucking company based on injuries he received while operating a forklift inside a trailer at the distribution center at which he was employed, summary judgment was appropriate where the defendant trucking company produced records showing that the truck plaintiff was injured in did not belong to it.

In Hashi v. Parkway Xpress, LLC, No. M2018-01469-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2019), plaintiff was a forklift operator employed by a distribution center. While plaintiff was operating a forklift inside the trailer of a tractor-trailer truck, the truck suddenly moved, causing plaintiff to fall to the ground. Plaintiff brought this suit for the injuries he sustained, naming as defendants the trucking company that he alleged owned the truck in question, the freight broker, and the unnamed truck driver.

The trial court granted summary judgment to both the trucking company and the freight broker, and the Court of Appeals affirmed.

Defendant trucking company “argued that summary judgment was appropriate because it was not the owner or operator of the tractor-trailer in which [plaintiff] was working when he was injured.” Defendant trucking company submitted an affidavit from its president stating that the driver in question was not their employee, and that the company’s truck was at the distribution center from 6:00 am to 7:08 am, while the injury occurred at 1:20 in the afternoon. The trucking company also submitted a bill of lading to support its alleged time-frame, as well as incident reports identifying the driver of the truck causing the injury. Based on this evidence the trial court granted summary judgment.

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An injured person who had sued an insured but did not yet have a judgment against the insured was not an indispensable party in a declaratory action between the insurance company and the insured regarding coverage of the accident.

In Tennessee Farmers Mutual Insurance Company v. DeBruce, No. E2017-02078-SC-R11-CV (Tenn. Ct. App. Oct. 16, 209), Christina Wright (“claimant”) had been injured when her vehicle was rear-ended by a car driven by Brandon DeBruce (“insured”). The claimant sued the insured, but the insured failed to inform his insurance company of the suit, which was a requirement of his policy. According to the insurance company, the insured also failed to cooperate in the investigation of potential claims.

Based on his failure to cooperate, the insurance company filed a declaratory judgment action seeking a declaration that it “did not have to provide a defense to DeBruce in the personal injury suit or indemnify him for any damages awarded to Wright.” The claimant was not a party to this suit. The insured failed to respond to the complaint, and the trial court granted a default judgment declaring that the insurance company was not obligation to defend or indemnify the insured in connection with the accident.

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When a plaintiff brought a negligence action against two public utility companies for damages allegedly done to her real property when the gas was turned off and waters pipes subsequently froze and burst, the trial court erred by holding that the Tennessee Public Utility Commission (TPUC) had exclusive jurisdiction of the claim. In Jetter v. Piedmont Natural Gas Company, Inc., No. M2019-00206-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2019), plaintiff owned an unoccupied residence which was “damaged when frozen water pipes ruptured during the winter after gas service to the property was terminated.” Plaintiff filed this negligence suit, alleging that defendant public utility companies failed to provide her with proper notice of their actions and failed to “take proper steps to reconnect the service.” In her complaint, plaintiff cited certain TPUC rules that were allegedly violated by defendants.

Defendants filed a motion to dismiss, arguing that the TPUC “had exclusive and original jurisdiction over the claims at issue.” According to defendants, the TPUC rules cited by plaintiff in her complaint could only be enforced by the TPUC. Defendants also argued that the administrative remedy set up by the TPUC rules was not exhausted by plaintiff before she filed this suit.

The trial court agreed with defendant and dismissed the case, but the Court of Appeals reversed. Continue reading

Medicare makes conditional payments to health care providers on behalf of its beneficiaries who are injured or killed and later assert personal injury or wrongful death claims.  Federal law requires that the monies advanced by Medicare be paid back subject to a formula that allows for the reduction of the advanced, conditional payments for certain expenses incurred by the beneficiary in securing the funds.  Occasionally, further reductions are granted. Law firms have the obligation to use reasonable efforts to determine if Medicare has made conditional payments and if so, work with Medicare to determine the proper amount of its gross and net financial interest and then ensure those monies are withheld from the proceeds and paid to Medicare.

The federal government has recently collected money from three plaintiff’s law firms for the alleged failure to do so.  One firm was required to pay $28,000, another $250,000, and, most recently, another $90,000.  It is unclear from the attached documents whether the payments in each case were entirely from firm funds or whether the payments also included client monies.   It does seem clear, in the case involving the $28,000 payment, the monies came from the owner of the firm:

Under the terms of the settlement with the DOJ, the firm’s principal agreed to pay a lump sum of $28,000.00. In addition, the firm agreed to (1) designate a person responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance. In addition, the firm acknowledged that any failure to submit timely repayment of Medicare secondary payer debt may result in liability under the False Claims Act.


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To defeat summary judgment on a defamation claim, a public figure needed to “produce clear and convincing evidence of actual malice at the summary judgment stage.” In Elsten v. Coker, No. M2019-00034-COA-R3-CV (Tenn. Ct. App. Oct. 4, 2019), plaintiff and defendant were both running for mayor of Hendersonville. Before the election, defendant’s campaign disseminated a pamphlet with two statements about plaintiff that plaintiff found objectionable: (1) that as an alderman plaintiff was “caught in an insider deal to sell stolen property to the Hendersonville Parks Department” and (2) that plaintiff was “currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner.”

Plaintiff filed this defamation action, and the trial court granted defendant summary judgment, finding that plaintiff “did not produce clear and convincing evidence of actual malice[.]” The Court of Appeals affirmed.

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Where an HCLA plaintiff was aware of injuries suffered by a decedent and had been told by a nurse that she should look into the decedent’s care at the hospital, the statute of limitations began running well before an expert reviewed the decedent’s medical files and opined that the injury was caused by the hospital.

In Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019), plaintiff filed a wrongful death action under the HCLA based on the death of her father. The father had diabetes, and plaintiff had been caring for him for some time before he was admitted to the hospital. Plaintiff knew that her father required specific skincare to avoid the development of bed sores. When the father was admitted to defendant hospital, he had no sores, but on November 11, 2013, just 10 days after he was admitted, plaintiff discovered that he had two bed sores on his buttocks. He eventually needed two debridements to treat these sores.

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Where a plaintiff had previously signed a marital dissolution agreement that stated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

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Where HCLA (Tennessee medical malpractice) defendants knew that their hospital employer was a necessary party under the GTLA yet failed to identify them to plaintiff pursuant to Tenn. Code Ann. §29-26-121(a)(5), plaintiff was entitled to add the hospital under comparative fault statute when it was later identified in defendants’ answers. Plaintiff’s failure to give the hospital pre-suit notice did not change this result.

In Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff brought suit on behalf of his wife, who died after being treated, released, and treated again by defendants. Plaintiff gave proper pre-suit notice to the defendants named in his complaint, including two physicians, Dr. Colburn and Dr. Strait. Unbeknownst to plaintiff, both of these doctors were actually employed by Erlanger hospital at the time of the incident, and because Erlanger is a governmental hospital authority, this claim fell under the GTLA.

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Where a foundation repair company was sold a set of products and services to a plaintiff that did not actually work to stabilize her home, and where the company made many misrepresentations about the services and the processes used, the Court of Appeals affirmed an award to plaintiff for fraud.

In Maddox v. Olshan Foundation Repair and Waterproofing Co. of Nashville, L.P., No. M2018-00892-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff had purchased a home in 2003 that was built on a steep lot. When she began noticing water issues, cracking in the bottom level, and felt the house was tilting, she called defendant foundation repair company. Defendant sent Kevin Hayman to plaintiff’s home, who was identified as a “certified structural technician.” Hayman recommended that plaintiff utilize three systems to stabilize her home: a “Cable Lock system to support the front part of the home’s foundation with pillars,” a Wall Lock system that would anchor the back wall to the ground behind it, and a Water Lock system that would allegedly address the home’s water issues. Each of the systems came with a “lifetime warranty.”

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Where a plaintiff fell down stairs but could not identify what caused his fall, summary judgment should have been granted in a premises liability case.

In Cartee v. Morris, No. M2018-02272-COA-R9-CV (Tenn. Ct. App. Sept. 6, 2019), plaintiff worked for defendant, and part of his job entailed delivering checks to a two-story building that was a residence turned office space. On the day of the fall, plaintiff ascended the main wooden staircase to the second floor offices, and at the top of stairs an employee had placed a dog gate. According to affidavits from employees, the dog gate was not secured to the wall, but was instead simply propped up “so it could be easily moved,” and it was about one and half feet tall. Plaintiff did not recall how he got over the dog gate on his way up the stairs. After delivering the checks, plaintiff fell down the staircase, causing him to be unconscious for two days. Plaintiff did not remember the accident and could not remember what caused his fall. Two employees who were present on the second floor heard the fall, but neither of them witnessed the fall. They both testified that when they went to check on plaintiff after hearing the fall, he and the dog gate were on the landing.

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