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Articles Posted in Motor Vehicle Cases

When a plaintiff takes a voluntary nonsuit in a case asserting vicarious liability against an employer for its employee’s negligence, that plaintiff can re-file pursuant to the savings statute, even if the employee was voluntarily dismissed from the first case.

In Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiff was a long-distance truck driver who was injured when he collided with a tractor-trailer that was overturned on the interstate and had been driven by Michael Heller, an employee of defendant. Plaintiff initially sued both Heller and defendant within the one-year statute of limitations, making direct negligence claims against Heller and claims of vicarious liability against defendant. Plaintiff eventually voluntarily dismissed Heller from the case, and the trial court then granted summary judgment to defendant. On appeal, however, summary judgment was reversed, and shortly after remand, plaintiff nonsuited his claim against defendant.

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Every Tennessean noticed a decline in motor vehicle traffic in the the month of April  2020.  The reduced number of vehicles on the roads showed up in the death rate on the state’s highways.

In 2019, 88 people died on Tennessee highways during the month of April.  In April 2020, 67 people died.

To be sure, every death on our highways results in a horrible loss for someone – each person who dies is someone’s parent, child, spouse or sibling.   But last month 21 fewer families received bad news as a result of a motor vehicle crash in Tennessee.

When a person allegedly liable for the injury of a claimant “offers the limits of all liability insurance policies available to the party,” the Uninsured Motorist (UIM) statute provides an avenue through which the claimant may accept the offer but also “preserve the right to seek additional compensation from his or her UIM insurance carrier…” (internal citations omitted). In order to trigger the portion of the UIM Statute that requires a claimant’s insurance company to “elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights…,” the requirement that the insurance company of the person responsible for the injury notify the UIM carrier that the party is willing to cooperate with arbitration is mandatory, and the UIM carrier is not required to request this assurance.

In White v. State Farm Mutual Automobile Insurance Company, No. W2019-00918-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2020), plaintiffs were injured in a car accident. The other driver was insured by USAA, who offered the limits of the driver’s policy as settlement for plaintiffs’ claims. Plaintiffs had car insurance with defendant State Farm, which included UIM coverage.

In April 2018, plaintiffs informed State Farm by letter that they intended “to settle with USAA for the liability insurance policy limits…[and that they] were willing to submit their UIM claim to arbitration and that they hoped to work amicably toward a settlement with State Farm.” The next month, State Farm responded that plaintiffs had permission to settle with USAA and that it was still evaluating the UIM claim. Two weeks later, State Farm told plaintiffs that “it would not offer a settlement for their UIM bodily injury coverage because State Farm believed [plaintiffs] had been fully compensated for their injuries.” Plaintiffs responded by invoking Tenn. Code Ann. § 56-7-1206 and stating that State Farm should “tender $25,000 to each insured in order to proceed to a jury trial or waive jury and go to arbitration.” State Farm responded that the provisions of the UIM statute had not been triggered.

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Where a plaintiff was running in the dark with no wearable light and was hit by a car while crossing the road, the Court of Appeals affirmed a jury verdict finding plaintiff 80% at fault.

In Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020), plaintiff and her family were visiting Hawkins County, Tennessee from Miami, Florida. Plaintiff went for a jog one morning while it was still dark, and she began by running in the same direction as traffic. When she decided to cross in order to run against traffic, she “glanced to see if any cars were coming.” While crossing, a car approached in the lane plaintiff was running towards, so she slowed down to let the car pass. She did not stop running, did not move back to the side, and did not turn around to check traffic. She was then hit by a car driven by defendant. At the scene of the accident, defendant estimated that she had been driving 50-55 mph, and the speed limit was 45 mph.

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An autonomous tractor-trailer recently completed a cross-country trip carrying a load of butter.

Although autonomous truck and car technology is not yet for prime time, the tests continue.

The impact on the trucking industry will be significant.  Personal costs are one-third of the marginal cost of running a truck, even more than the cost of fuel.  Eliminate the driver?  Costs go down and the potential for profit increases.

When a woman had left work early and was on a completely personal errand at the time she caused an automobile accident, her employer could not be held liable for her actions.

In Gunter v. Estate of Armstrong, No. E2018-01473-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2019), plaintiff sued the employer of Jamie Armstrong after Armstrong’s vehicle crossed the centerline of a road and caused a car accident, injuring plaintiff. Just before the accident, Armstrong had been working a shift for defendant employer as an in-home caretaker. Armstrong’s replacement showed up early, and Armstrong decided to leave her shift thirty minutes before it ended. This was apparently common practice, although she could technically be called back into work during the remaining thirty minutes. When Armstrong left work, she decided to go get her male friend coffee, and the accident occurred while she was en route to this personal errand.

When Armstrong had been hired, defendant employer had run a drug screen and a TBI background check, both of which came back clear. Defendant did not know that Armstrong had any issues with prescription drug use. On the morning of the accident, the employee who relieved Armstrong said that she seemed very tired and offered to drive her home, but did not believe that she was under the influence. Continue reading

 

Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

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Even with video showing the crash, a court may find that there are issues of fact concerning fault allocation surrounding a car accident.

In Trammell v. Peoples, No. M2016-02198-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiffs were involved in a car accident with defendant. Defendant was driving a box truck “in the course and scope of his employment,” and the truck was equipped with a camera on the dash. The camera recorded twelve seconds, including the eight seconds before the crash and the four seconds after. The video showed defendant “traveling at a speed of approximately 60 miles per hour in a middle lane while passing a construction scene monitored by police vehicles immediately to the right.” Plaintiffs were shown traveling ahead of defendant in the far left lane. “In the four seconds before impact, [plaintiff driver] initiates his turn signal and begins to merge into [defendant’s] lane. Unable to slow in time, [defendant’s] truck collides with the vehicle operated by [plaintiff], causing it to spin.”

Plaintiffs filed this negligence suit alleging that defendant’s failure to keep his truck “under proper and reasonable control” was the cause of the accident. Defendants (the driver and his employer) filed a motion for summary judgment, relying on the video to show that plaintiff “was more than 50 percent at fault and that [defendant] acted as a reasonably prudent person would have under the circumstances…” In a deposition, defendant driver testified that plaintiff “swerved his vehicle into my lane of traffic directly in front of the box truck that I was driving causing my truck to collide with the read end of [plaintiffs’] vehicle,” and that there were no signs as he approached the construction on the side of the road indicating a speed limit of less than 65 miles per hour.

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Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.

In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21st by the sheriff with a notation that the driver was “not to be found in my county.”

On April 25th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6th and 7th, and the driver’s was returned unserved indicating that he had died.

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An exculpatory agreement contained in a contract for transportation services may be enforceable against a plaintiff claiming ordinary negligence.

In Copeland v. Healthsouth/Methodist Rehabilitation Hospital, L.P., No. W2016-02499-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), plaintiff was recovering from knee surgery in a hospital and had a follow-up appointment with his surgeon. The hospital helped arrange for defendant transportation service to take plaintiff to this appointment. “After the appointment, [plaintiff] was injured when he fell while getting back into the MedicOne transport van.” Before being transported by defendant, plaintiff signed several documents. One stated that the van provided was “not an ambulance and no care will be given by the…technician.” The second specified that it was for “transportation services” and that “there are inherent risks associated with such transportation which pose a risk of harm or injury.” This agreement also contained a release, which stated that plaintiff “SPECIFICALLY DISCHARGES MEDIC ONE RELATED PARTIES FROM ANY AND ALL CLAIMS ARISING DIRECTLY FROM OR AS A RESULT OF THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ) OF MEDIC ONE RELATED PARTIES.”

Plaintiff filed this negligence suit against the transportation company and the hospital that arranged the service. The trial court granted summary judgment to both defendants, finding that the release was enforceable and waived all claims of ordinary negligence. Plaintiff appealed, but only as to defendant transportation company, and summary judgment was affirmed.

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