Articles Posted in Damages

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An award for future medical expenses in a personal injury claim under Tennessee law may be appropriate even where the plaintiff does not establish with “absolute certainty” that the future treatment will be pursued, as the standard for such an award is “reasonable certainty.”

In Kirby v. Memphis Light Gas & Water, No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019), plaintiff was in a car accident with one of defendant’s drivers. After a bench trial, the judge assigned plaintiff 30% of the fault and awarded him $105,000 in damages, which included an award for future medical expenses to cover a prospective surgery. On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did. The Court of Appeals affirmed the damages award.

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Under the discovery rule, a plaintiff’s cause of action for property damage may “not necessarily accrue at the moment they knew they had sustained injury.” Instead, the statute of limitations will not begin to run until they “knew, or in the exercise of reasonable care and diligence should have known, that an injury was sustained as a result of wrongful or tortious conduct by the defendant.” (internal citation omitted).

In Roles-Walter v. Kidd, No. M2017-01417-COA-R3-CV (Tenn. Ct. App. April 24, 2018), plaintiff had purchased a commercial building next to buildings owned by defendants. Plaintiff alleged that beginning in December 2012, she “began to have issues with rain water form the adjacent alleyway flooding their building.” Plaintiff alleged in her complaint that “upon examination by [plaintiff] and subsequently by professionals in this area,” it was determined that the water issues were being caused by water coming off defendants’ buildings roofs, and that defendants had refused to “take any responsibility for the damage…and/or take any actions intended to remedy the water issues.” Plaintiff accordingly filed this lawsuit on November 1, 2016.

Defendants moved to dismiss based on the statute of limitations, which the trial court granted, but the Court of Appeals reversed.

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In cases involving damages to real property, the general “measure of damages will be the cost of repair[.]” If a defendant wants to argue that diminution in value is a more appropriate measure of damages, he or she has to burden of proving the difference in value from before and after the damage occurred.

In Durkin v. MTown Construction, LLC, No. W2017-01269-COA-R3-CV (Tenn. Ct. App. March 13, 2018), plaintiff had hired defendant to put a new roof on his home. While the roof was exposed, a thunderstorm occurred, and the tarp used by defendant to cover the roof had holes and allowed a significant amount of water to leak into plaintiff’s home. After the damage occurred, defendant initially assured plaintiff that the damage would be promptly fixed, but the repairs were not made. Plaintiff filed this action, and the trial court found defendant liable for both negligence and breach of contract.

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In Henderson v. The Vanderbilt University, No. M2016-01876-COA-R9-CV (Tenn. Ct. App. May 31, 2017), the Court of Appeals overturned summary judgment on a negligent infliction of emotional distress claim, holding that “the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs.”

Plaintiffs brought their 10-year-old daughter to defendant hospital for septic shock related to the flu. She was admitted to the pediatric ICU on March 23, 2013, and given fluids and other medicines, but “no central line was placed; no echocardiogram was performed; no one called for a cardiology consult.” On the morning of March 24th, plaintiffs “witnessed their daughter go into cardiac arrest.” Plaintiffs were escorted out of the room while defendant spent two hours performing CPR. After the cardiac arrest, plaintiffs allege that the child’s condition deteriorated, and during a procedure on April 4th, she suffered a stroke and was ultimately pronounced brain dead. Care was withdrawn the child passed away on April 5th.

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Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.

In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial.  Of those 396  trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.

At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up  over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of  jury trials.  Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.

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While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

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In Kempson v. Casey, No. E2015-02184-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), the Court of Appeals vacated a jury’s finding of no damages for a plaintiff who presented uncontroverted expert proof regarding injuries he alleged to have sustained in a car accident.

Plaintiff was rear-ended by defendant when he was sitting in traffic on the interstate. Although defendant did not deny that the collision occurred, the parties had vastly different accounts of what happened. Plaintiff alleged that defendant was going around 50 miles per hour when she hit him, that his car was knocked forward 5-6 car lengths (but that he did not hit the vehicles in front of him), and that after the accident defendant had blood going down her leg. Defendant, on the other hand, testified that she was driving between 10 and 15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she did not bleed. Both parties agreed that both vehicles were driven away from the scene.

Plaintiff sued for negligence, asserting that “as a result of the accident, [he] began experiencing intractable neck and low back pain that ultimately necessitated” surgery. In support of his claims, plaintiff presented testimony from his surgeon and his chiropractor. Both of these experts testified that plaintiff had “preexisting complaints related to his cervical, thoracic and lumbar spine,” and that his “post-accident complaints were similar to his pre-accident complaints.” The surgeon testified, though, that in his opinion “the accident at issue caused [plaintiff’s] medical condition to worsen to the point that surgery was necessary.”

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In Hamilton v. Holderman, No. M2015-02302-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2015), the Tennessee Court of Appeals affirmed a damages award in a conversion case.

In the underlying dispute, plaintiffs had rented a furnished house and barn to defendants, which the defendants argued they had orally agreed to buy. Plaintiffs filed a forcible entry and detainer warrant in general sessions court, and defendants eventually vacated the property. When defendants left, they took “certain furnishings and other personalty owned by [plaintiffs]” with them, and this suit for conversion followed.

Plaintiffs initially filed in general sessions court and were awarded $24,999 in damages, the full jurisdictional limit. Defendants appealed to circuit court, where a jury returned a verdict for plaintiffs in the amount of $40,000. Defendants appealed that verdict to the Court of Appeals, arguing that there was not “material evidence in the record to support the jury’s verdict of damages for $40,000.” The Court of Appeals affirmed the award.

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In Haynes v. Bass, No. W2015-01192-COA-R3-CV (Tenn. Ct. App. June 9, 2016), plaintiff brought suit against her ex-husband, a mortgage company, a title company and an attorney claiming she suffered damage when a home that was supposed to be titled to her alone was sold at auction. Plaintiff and defendant ex-husband had previously been married, and in December 2007 they executed a postnuptial agreement stating that, once another property sold which was already under contract, a residence in Collierville that was being purchased by plaintiff would be plaintiff’s “sole and separate property.” After the sale, however, the money was split between the husband and wife and the deeds were allegedly not recorded as planned in the agreement. Plaintiff alleged that her name was forged on the deeds of trust for the property.

In 2014, the couple got divorced in Arkansas. During the divorce proceeding, plaintiff was supposed to be paying the mortgage on the residence, as she was living in it alone, but it was discovered that she had failed to pay and owed $51,000. The Arkansas court entered an order holding plaintiff in contempt for failing to pay the mortgage and stating that plaintiff could pay defendant husband $55,000 or the property would be sold by a receiver at auction. After plaintiff failed to pay, the residence was sold, and plaintiff filed suit seeking damages for the loss of the property.

In this Tennessee action, plaintiff brought several claims, including fraud, negligent misrepresentation, negligence and civil conspiracy. The trial court dismissed plaintiff’s complaint in total for failure to state a claim, and the Court of Appeals affirmed.

Against her ex-husband, plaintiff advanced claims of fraud and negligent misrepresentation, among other contract-based claims. Both of these causes of actions, though, require the plaintiff to suffer damages due to the misrepresentations. Here, the Court found that the evidence “reveal[ed] that [plaintiff] lost the residence, and the value of all of the improvements she made to the property, because of her failure to pay the mortgage, which resulted in the Arkansas court ordering the property to be sold.” Even if plaintiff’s allegations were taken as true, the Court held that “the allegations are not sufficient to make out a claim against [defendant] because the damages sustained by [plaintiff] are not related to [defendant’s] alleged breach of the postnuptial agreement.”

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Understanding medical billing and medical expenses can be quite difficult in today’s healthcare system, and courts across the country have been grappling with how to determine the reasonable amount of medical expenses in court cases. In a recent Tennessee case, the Court of Appeals declined to extend a Tennessee Supreme Court decision which held that reasonable medical expenses were those that the medical provider actually accepted as payment from an insurance company, as the Supreme Court decision was a hospital lien case and the Court of Appeals was reviewing a personal injury matter.

 

The underlying facts in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016) were that plaintiff was seeking recovery for injuries sustained in a car accident. Plaintiff claimed medical expenses of $52,482.87, and plaintiff provided medical bills and the deposition of a treating physician who testified that the expenses were “appropriate, reasonable, and necessary[.]”

 

After this suit was filed, the Tennessee Supreme Court issued a decision in a case about hospital liens, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014). Tennessee law gives hospitals a lien “for all reasonable and necessary charges for hospital care, treatment and maintenance of ill or injured persons[.]” The West court tackled the issue of what exactly constituted reasonable charges, in light of the fact that the amount a patient is billed and the amount an insurance company actually pays is often vastly different. The Court in West eventually determined that, “with regard to an insurance company’s customers,” reasonable expenses were “the charges agreed to by the insurance company and the hospital,” not the billed amount. The Court stated:

The hospital’s non-discounted charges reflected in the amount of the liens it filed against the plaintiffs should not be considered reasonable charges for the purpose of [the Hospital Lien Act] for two reasons. First, the amount of these charges is unreasonable because it does not ‘reflect what is [actually] being paid in the market place.’ …[A] more realistic standard is what insurers actually pay and what the hospitals [are] willing to accept.’ …The second basis for concluding that the [hospital’s] non-discounted charges are not reasonable stems from its contracts with [the insurers]. The [hospital] furthered its own economic interest when it agreed in these contracts to discount its charges for patients insured by [the insurers]. …The [hospital’s] contract with [the insurers] defined what the reasonable charges for the medical services provided to [the plaintiffs] would be.

(Internal citations and quotations omitted).

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