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Articles Posted in Managing Your Practice

When determining the amount of attorneys’ fees to award in a post-settlement attorney fee dispute, the trial court should have considered the relevant facts and factors contained in Tennessee Rules of Professional Conduct 1.5(a).

In Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. Ct. App. May 19, 2020), the issues at play were “post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of post-settlement discretionary costs against the carrier.” In the underlying case, Sergio Lopez had died from injuries he sustained at work. The injuries were caused by a third party (defendant), and Mr. Lopez’s employer’s workers’ compensation insurance carrier had been paying benefits to his wife and children. The wife filed a wrongful death claim against defendant company and its employee, alleging that the employee caused her husband’s death and that the company was vicariously liable.

In the wrongful death action, plaintiffs were initially represented by attorney Gary Hodges, whose fee agreement “entitled him to 33% of the gross recovery obtained through arbitration, settlement conference or trial.” The agreement also provided that if Mr. Hodges was discharged and plaintiff recovered after the discharge, Mr. Hodges would be entitled to “a reasonable attorney’s fee and reimbursement for all costs advanced.” Notably, the agreement did not differentiate between “discharge for good cause and discharge without cause.” After he was hired by the plaintiffs, “Mr. Hodges entered a separate fee-sharing agreement with another solo practitioner, Robert L. Martin.” Plaintiffs never had an agreement with Mr. Martin and were not told about the agreement between Mr. Hodges and Mr. Martin.

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The coronavirus has impacted the service of summons and complaints as many sheriff’s departments make the effort to reduce human contact.  Indeed, the coronavirus is having not only  a short-term impact on the civil justice system but will have a long-term impact as well.  Today we discuss an alternative to service of process by the local sheriff’s department.

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Sometimes companies that do business or cause harm in Tennessee have not registered to do business in Tennessee or have not appointed a registered agent in the state.  If you want to sue them in a civil action (but not a worker’s compensation action), on whom to you serve the summons and complaint?

For “for profit” corporations, the answer is found in Tenn. Code Ann. Sec. 48-15-104 (b) :

Whenever a domestic or foreign corporation authorized to do business in this state fails to appoint or maintain a registered agent in this state, whenever its registered agent cannot be found with reasonable diligence, whenever a foreign corporation shall transact business or conduct affairs in this state without first procuring a certificate of authority to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served.  (Emphasis added.)

Today we follow up on our previous post about the number of civil trials in Tennessee and we concentrate on the number of trials in Tennessee personal injury, wrongful death and other tort cases. (Health care liability trials are excluded from these numbers.)

In the fiscal year ending June 30, 2019, there were 140 jury trials and 150 non-jury trials in Tennessee tort cases.  Thus, there were a total of 290 such trials.  Plaintiffs “won” 112 of those cases or, in other words, 38.6% of the time the plaintiff received a judgment in his or her favor.  (Whether this is truly a victory for the plaintiff depends on whether there was a pre-trial offer and the amount of that offer when compared with the judgment amount.)  The available data does not tell us the percentage of “wins” in jury cases or in non-jury cases but only the total number of judgments entered for the plaintiff in both types of cases.

Compare that for the prior year (ending June 30, 2018), when there were  130 jury trials and 207 non-jury trials.  Therefore, the total number of tort trials that year was 337.  Therefore, for the first time in recent memory, the number of jury trials actually increased slightly  (130 to 140) while the number of non-jury trials decreased substantially (207 to 150).  In FY 2018 a judgment was entered for the plaintiff in only 98 cases, or 29.1% of all cases tried.

I have been compiling the Tennessee tort reform statutes, and the court decisions interpreting them, for a decade.   I recently released another edition of my book, Compendium on Tort Reform Statutes and Related Case Law, 2008-2019.

The book contain 549 pages of information helpful to tort lawyers.  The best use for the book is this:  when researching an unfamiliar area of Tennessee tort law, go through the Table of Contents and see if a topic listed there is potentially relevant to the issues you are researching.  If so, turn to the relevant pages and to see (a) what new statutes may impact your issue; and (b) what Tennessee decisions have interpreted those statutes.

The book is only $79.00, plus sales taxes, shipping and handling.  You can order it by clicking the link above.

The Tennessee Rules of Civil Procedure permit a Tennessee personal injury or wrongful death plaintiff to serve discovery with a complaint.  Ordinarily, responses to interrogatories, requests for production of documents, and requests for admissions are due 30 days after service.  However, if they are served with the complaint the defendant has an additional 15 days to respond to them.

Why do you want to serve discovery with the complaint?

  1.  Why not get the litigation started?  You are going to serve discovery sooner or later – or you at least you should.  Usually there is no reason not to get the process started early.

A compensatory damages personal injury award, by settlement or judgment, is not taxable under federal law if the case arises out of personal physical injury or sickness.  This is true even if the award includes monies for pain and suffering and lost wages.

The support for this view is Section 104 of the Internal Revenue Code.    The law is further explained in the 2011 publication, Lawsuits, Awards, and Settlements Audit

Techniques Guide published by the Internal Revenue Service.

The second edition of Tennessee Law of Civil Trial is now available for purchase.  The new edition updates the first edition of the text published five years ago.

The 500-page book is designed to help lawyers prepare for the procedural issues that arise from jury selection through post-trial motions.   It also includes the law of scheduling orders, and discusses alternative provisions that can be incorporated into scheduling orders depending on the complexity of the case.  (The chapter on Tennessee scheduling orders is available for free by clicking on the link.)  There is also a chapter on the law of motions in limine, and the Appendix includes multiple forms for use in drafting motions.

Reading this book will cause inexperienced trial lawyers to discover answers to questions they did not even know were questions and those with more experience will have their recollection of the law of trial quickly refreshed.   The book is written to make it readily capable of use in the middle of trial.

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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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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