Articles Posted in Motor Vehicle Cases

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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While a case for personal injuries resulting from a car accident must be filed within one year, a claim against an insurance company for uninsured motorist coverage arising from the same incident is not subject to that one-year statute of limitations.

In Bates v. Greene, No. W2016-01868-COA-R3-CV (Tenn. Ct. App. July 27, 2017), plaintiff had been injured in a car accident. Plaintiff filed a timely suit less than one year after the accident against the driver of the other car, but the civil warrant was returned unserved. An “alias civil warrant was issued for [the driver], but it was also returned unserved.” Two years after the accident, an amended warrant was issued, adding plaintiff’s uninsured motorist insurance carrier as a defendant.

Defendant insurance company filed a motion for summary judgment, “asserting that the claim against it was barred by the one-year statute of limitations applicable to personal injury actions.” Plaintiff responded that “she was asserting a contract claim…, subject to a six-year statute of limitations, rather than a tort claim…” The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

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In Higgs v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017), the Court of Appeals affirmed a jury verdict for defendant in a car accident case.

Plaintiff and defendant were involved in a two-car accident in Brentwood. “The accident occurred as Defendant was making a left-hand turn across Plaintiff’s lane of traffic to enter a gas station when the front of Plaintiff’s vehicle collided with the rear quadrant of the passenger’s side of Defendant’s vehicle.” Plaintiff alleged in her complaint that the accident was due to defendant’s failure to yield, failure to keep a proper lookout, failure to keep his car under control, and turning without making sure it was safe to do so. Further, plaintiff cited four statutes that she alleged defendant violated, asserting that defendant had thus committed negligence per se.

The jury returned a verdict finding plaintiff 75% at fault and defendant 25% at fault, and judgment was thus entered for defendant. Plaintiff moved for a new trial, which the trial court denied, and this appeal followed. On appeal, plaintiff presented two issues, one dealing with the exclusion of certain testimony from a police officer and one dealing with potential juror misconduct.

During the trial, but while the jury was not present, the investigating officer who plaintiff planned to call as a witness was questioned. The officer testified that “he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff’s lane of traffic.” The officer further testified that defendant was not issued a citation after the accident. Despite these admissions, the officer stated that he was familiar with the area and that “there was a double-yellow line” where the accident occurred, that the double-yellow line would indicate “a continuation of a median,” and that it was illegal to turn across a median.

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In a recent case where plaintiff was seeking damages for emotional injuries, the Court of Appeals affirmed summary judgment for defendant, holding that plaintiff could not recover for negligent infliction of emotional distress when the claim was based on the negligent destruction of property.

In Lane v. Estate of Leggett, No. M2016-00448-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2017), plaintiff owned an antique and gift shop. Defendant was driving when he rear-ended the car in front of him, veered off the road, and ran into plaintiff’s store. During the accident, defendant hit a gas meter, causing a fire that completely destroyed plaintiff’s store and killed defendant. Plaintiff was not at the store when the accident occurred but arrived shortly after the fire began.

Plaintiff brought suit against the defendant’s estate for negligence resulting in property damage and emotional injuries (the property damage claim was dismissed under the doctrine of prior suit pending, as a case had already been filed by the relevant insurance company). The complaint stated that “as a result of observing the fire and the circumstances surrounding the same, including having narrowly escaped being present when the incident occurred, the Plaintiff has been caused severe mental and emotional injuries and has had to seek the assistance of a psychologist and psychiatrist…and has been diagnosed with Post Traumatic Stress Disorder and Anxiety.” Defendant moved for summary judgment on the claims for emotional injuries, asserting that plaintiff was claiming negligent infliction of emotional distress, and that such a claim “is not a cause of action intended to permit recovery for emotional distress arising in connection with property damage.” The trial court granted summary judgment, and the Court of Appeals affirmed.

In Goan v. Mills, No. E2016-01206-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2017), the Court of Appeals affirmed the trial court’s decision to enforce a settlement agreement in a car accident case.

Plaintiff was rear-ended by defendant while plaintiff was delivering mail. Plaintiff brought this action, and settlement negotiations between the parties’ attorneys ensued. Plaintiff’s counsel sent a letter in April 2013 stating that plaintiff “had an agreement with comp that we can settle this case now…If there is only $100,000 in insurance, I would demand the policy limits primarily because of workers comp.” In August, plaintiff’s lawyer again wrote: “I go back to demanding the limits which I believe is $100,000 but as we discussed I need a firm number from you to figure out compromising the comp claim.” Plaintiff’s counsel wrote two more times demanding the policy limit of $100,000, and in December 2013, defense counsel wrote a letter accepting the settlement demand.

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In Rogers v. Hadju, No. W2016-00850-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2017), the Court of Appeals affirmed summary judgment in a negligence case, finding that defendant companies could not be held liable for the actions for what was determined to be an independent contractor.

Ford Construction was hired by the state to perform road construction. Ford subcontracted with Traf-Mark Industries for part of the work; Traf-Mark subcontracted with Kerr Brothers; and Kerr Brothers subcontracted with RDH Contracting. On the job site, an employee of RDH Contracting was backing up a truck when he hit an employee of Ford Construction. The injured Ford Construction employee filed this negligence suit against Traf-Mark, Kerr Brothers, RDH Contracting and the driver, arguing that the defendant companies were vicariously liable for the incident because the driver of the truck “was acting in the scope of his employment with them at the time of the incident.”

Traf-Mark and Kerr Brothers filed a motion for summary judgment, asserting that they were not liable for the driver’s negligence because RDH Contracting and the driver were independent contractors. The trial court granted summary judgment, and the Court of Appeals affirmed.

In Tennessee, “the doctrine of respondeat superior permits a principal to be held liable for the negligent acts of its agent.” (internal citation omitted). “While an employer may be held liable for the negligence of its employee, however, they are generally not liable for the negligence of independent contractors.” (internal citation omitted). When determining whether an employment or independent contractor relationship exists, courts should consider “(1) the right to control the conduct of the work, (2) the right of termination, (3) method of payment, (4) whether or not the worker furnishes his own helpers, (5) whether or not the worker furnishes his own tools, (6) self-scheduling of working hours, and (7) freedom to render services to other entities.” (citing Goodale v. Langenberg, 243 S.W.3d 575 (Tenn. Ct. App. 2007)).

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In Turner v. City of Memphis, No. W2015-02510-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2016), the Court of Appeals affirmed a verdict for plaintiff following a Tennessee head-on car wreck between plaintiff and a police officer.

In December 2012, plaintiff and a Memphis police officer were traveling in opposite directions along the same road at just after midnight. The road had five lanes, two going in each direction and one turn lane. Plaintiff was driving south in the lane closest to the turn lane, while the officer was driving north in the outer lane. According to plaintiff, the officer “negligently and without warning crossed traffic and struck the vehicle being driven by [plaintiff] head on.” The accident caused plaintiff’s airbag to deploy and both drivers were knocked unconscious. Plaintiff was transported to the hospital by ambulance and was “subjected to a full trauma work-up, was given a neck brace because of whiplash, was given an I.V. for dehydration, and was administered considerable pain medication.” Plaintiff testified that he eventually was treated by a chiropractor and that the accident caused him pain that he had “never experienced before on that scale.” According to plaintiff, his injuries had improved, but they had “decreased his ability to engage in physical activities including cooking, cleaning, and getting his son to and from school, and he still suffered from frequent headaches, anxiety attacks, and unease of rest.”

Plaintiff brought this action against the city of Memphis under the GTLA for the officer’s alleged negligence in causing the accident. Plaintiff sought $300,000 in damages, including $28,421.18 in medical expenses.

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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.”

In Martin v. Powers, No. M2014-00647-SC-R11-CV (Tenn. Oct. 24, 2016), the Tennessee Supreme Court analyzed the issue of whether a rental car being driven by a renter qualified as an “uninsured motor vehicle” under the plaintiff’s car insurance policy.

Plaintiff owned a bar, and he refused to serve alcohol to the defendant. When plaintiff followed defendant out to the parking lot, defendant got into a rental car that he had rented from Enterprise and intentionally drove into plaintiff, causing a knee injury.

During the course of the litigation, plaintiff “served [his insurance] with a copy of the summons and complaint for the purpose of bringing a claim under his uninsured motorist coverage.”  The insurance company argued that Enterprise was a self-insurer under certain Tennessee statutes, and that the accident thus “did not arise out of the ownership or use of an uninsured vehicle.” The trial court granted the insurance company’s motion for summary judgment, but the Supreme Court reversed.

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