Articles Posted in Miscellaneous

Where plaintiff alleged that her son’s body was buried in the wrong place within a cemetery and brought several claims, including negligent mishandling of a dead human body, against defendant funeral home, summary judgment for the funeral home was affirmed based on the finding that the funeral home “had no common law duty to direct or supervise the burial and disposition” of the body and that the funeral home “conformed to the reasonable person standard of care under all of the circumstances.”

In Mathes v. N.J. Ford and Sons Funeral Home, Inc., No. W2021-00368-COA-R3-CV, 2023 WL 117729 (Tenn. Ct. App. Jan. 6, 2023), plaintiff asserted claims for mishandling of her dead son’s body. Plaintiff had purchased an interment plot from the cemetery prior to her son’s passing and had executed certain documents related to that purchase. One such document provided that “all interments and disinterments…shall be made only by [the Cemetery] unless otherwise approved by cemetery company.” The cemetery and funeral home were not related to each other in any way.

After the son’s death, plaintiff contracted with defendant funeral home to handle the funeral and body preparation. Plaintiff also signed an additional authorization with the cemetery and went to view the pre-selected plot at the cemetery.

I strongly encourage you to add “Trial Tested” to your list of podcasts.

“Trial Tested” is a podcast sponsored by the American College of Trial Lawyers.  It “presents enlightening discussions about life and law through interviews with prominent trial lawyers and significant figures in the world of trial law.”  The interviewees are accomplished trial lawyers (with a couple of non-lawyers thrown in for good measure) interviewed by one of three College Fellows –   Amy Gunn, Mike Herring, or Dave Paul.

Click here to see a list of the podcasts offered to date.   Tennessee’s own Mike Cody is interviewed for today’s podcast.


As 2022 comes to a close, here is a brief summary of the cases pending before the Tennessee Supreme Court.

There are twenty civil cases pending before the Court.  The “oldest” pending cases (calculated from the date of oral argument) are Gardner and Ultsch – both cases were argued April 6, 2022.  Review of the Mathes case was just accepted December 15.  Click here for a full list of pending civil cases, the subject matter involved, and their status.

There are ten criminal cases pending before the Court.  The “oldest” pending cases (once again calculated from the date of oral argument) are Forest  and Lyons – both cases were argued April 6, 2022. Review of the Dotson case was granted October 25.  Click here for a full list of pending civil cases, the subject matter involved, and their status.

When appealing a trial court’s order dismissing or refusing to dismiss a case under the Tennessee Public Protection Act (TPPA), the appeal “must be filed within thirty days of the entry of that order.”

In Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150 (Tenn. Ct. App. Oct. 25, 2022), plaintiff filed multiple tort claims against multiple defendants, including libel claims against certain defendants based on their social media statements related to the death of a dog who died while in the care of plaintiff’s dog training business. The libel defendants filed motions to dismiss pursuant to the TPPA, which the trial court granted on December 10, 2020. The trial court also found that “the TPPA requires an award of attorney’s fees when an action is dismissed under that chapter” and it asked the prevailing parties’ attorneys to submit fee affidavits within fifteen days of the entry of the dismissal order. The trial court then entered an order awarding some attorneys’ fees on March 5, 2021, then due to some late filing, entered another order regarding attorneys’ fees on June 24, 2021. Plaintiff appealed the TPPA dismissal from that June 24th order.

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When calculating post-judgment interest, the statutory rate in effect when the judgment is entered applies for the entire time period between entry of the judgment and its payment.

In Coffey v. Coffey, No. E2021-00433-COA-R3-CV, 2022 WL 1085039 (Tenn. Ct. App. April 11, 2022), plaintiff had won a large judgment against defendant based on breach of fiduciary duty and conversion. Defendant appealed the judgment, but it was affirmed by the Court of Appeals and the Supreme Court denied review. The case then went back to the trial court for calculation of post-judgment interest.

The trial court used the interest rate calculated by the Administrative Office of the Courts based on Tenn. Code Ann. § 47-14-121 for January 13, 2020, the day the judgment was entered. The court applied that rate as the post-judgment interest rate for the entire period at issue, which was January 13, 2020 through April 26, 2021. In this appeal, defendant argued that a different interest rate should have been used for a portion of this time period, as the statutory interest rate fluctuated, but the Court of Appeals rejected this argument and affirmed the trial court’s calculation.

A new decision of the Tennessee Court of Appeals, Southern Steel & Concrete, Inc. v. Southern Steel & Construction, Inc.,  No. W2020-00475-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2022), summarizes Tennessee’s law on alter ego issues.

Here is some key language from the opinion (all of the language in bold is quoted from the opinion):

           In Oceanics Schools, Inc. v. Barbour, 112 S.W.3d 135, 145 (Tenn. Ct. App. 2003),this Court provided a “blueprint of factors” to be considered when addressing an alter ego issue. Boles v. Nat’l Dev. Co. Inc., 175 S.W.3d 226, 245 (Tenn. Ct. App. 2005). We explained that blueprint as follows:

Where plaintiff gave her husband permission to sign her name to an indemnity agreement in conjunction with obtaining insurance bonds, and plaintiff’s husband had the opportunity to read the indemnity agreement and discover its contents, summary judgment on plaintiff’s negligent misrepresentation claim against the insurance agent who allegedly stated that the indemnity agreement did not include plaintiff’s personal property was affirmed.

In King v. Bradley, No. E2021-00261-COA-R3-CV, 2022 WL 678568 (Tenn. Ct. App. Mar. 8, 2022), plaintiff’s husband and step-son owned a commercial electrical contracting business. In conjunction with a work project, the business was required to obtain performance and payment bonds. Defendant was the insurance agent who assisted in obtaining these bonds, and in conjunction with getting the bonds, plaintiff, plaintiff’s husband, plaintiff’s step-son, and the business were required to sign an indemnity agreement. Plaintiff was not present when the indemnity agreement was to be signed, but she gave her husband verbal permission over the phone to sign her name. According to plaintiff, she told her husband that she did not care what he signed her name to “as long as we’re not putting up our personal stuff.” Plaintiff asserted that defendant was asked whether any personal property, as opposed to business property, was covered by the indemnity agreement, to which he responded that it was not. Plaintiff’s husband signed the indemnity agreement without reading it or having an attorney review it.

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Where a company had properly rejected uninsured motorist coverage for its fleet of vehicles in 2002, and the company submitted standard information for its 2011 policy renewal, the 2002 rejection remained in effect and uninsured motorist coverage was not part of the company’s automobile insurance policy.

In Hughes v. The Liberty Mutual Fire Insurance Company, No. E2020-00225-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2021), plaintiff was the driver of a vehicle owned by a large healthcare company (HMA). Plaintiff was in an accident while driving an HMA vehicle, and he filed a personal injury suit and gave HMA’s insurer, defendant Liberty Mutual, notice of a potential uninsured motorist claim.

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Where plaintiff had no evidence that defendant took any action that contributed to him being knocked off a ladder while nailing a board to a window, summary judgment for defendant was affirmed.

In Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021), plaintiff and defendant were friends who both had construction work experience. Defendant needed help nailing boards across a window on his cabin that was under construction, and plaintiff agreed to assist him. Plaintiff and defendant were both on ladders, and one would hold the lower end of the board while the other nailed the upper end of the board to the cabin. Plaintiff had placed his own ladder and was using his own hammer during the project. Plaintiff was nailing one board while the other end was being held at a lower diagonal by defendant, when after placing a few nails in the board, plaintiff hit the board again with his hammer and the board bounced back and knocked him off his ladder, causing serious injuries.

Plaintiff filed this personal injury suit, asserting that defendant’s negligence caused his injuries. During his deposition, plaintiff was asked what defendant was doing when the injury occurred, and plaintiff stated that defendant was “holding the lower end” of the board. When asked what defendant did “that caused the two-by-four to come out,” plaintiff responded that he did not know. During his own deposition, defendant stated that he was “just holding the board” at the time of the accident.

Where plaintiff’s property was destroyed by a fire caused by a lightning strike, emergency responders could not cross a bridge to access the property and extinguish the fire due to flooding, and plaintiff had recently asked the State to modify the bridge due to concerns about flooding, dismissal of this negligence case was affirmed, as the lightning strike was the sole proximate cause of plaintiff’s damages.

In A.B. Normal, LLC v. State of Tennessee, No. M2020-01390-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2021), plaintiff owned a piece of property containing a home and hay fields. The property was located off a state highway and was only accessible via an easement bridge. In September 2018, plaintiff contacted the State about concerns regarding the easement bridge flooding during heavy rain, thereby making the property inaccessible. Several state employees were involved in inspecting the bridge in question, and they held a phone conference with plaintiff in late 2018, informing plaintiff that “there were no exigent circumstances or concerns for TDOT to address at that time.” During this call, plaintiff stated that it was concerned that emergency responders would not be able to access the property in an emergency.

Just two months later, in February 2019, lightning struck the property, causing a fire in the home. The bridge was flooded due to heavy rainfall. One firetruck was able to cross the bridge but then became immobilized, and later responders were not able to cross. When the fire department first arrived, only the bathroom was destroyed, but after making minimal progress in fighting the fire, the firefighters were instructed to retreat. The fire then destroyed the home and eight acres of farmland.

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