Day on Torts

February 12, 2009

Vicarious Liability in Trucking Cases

It is not uncommon for wrecks involving tractor-trailer rigs to result in serious injury and death. It is also not uncommon for there to be inadequate insurance coverage or other assets to make whole the victims of the trucker’s negligent acts.

Thus, it is not uncommon for lawyers who represent the victims of the these wrecks to look to the conduct of others to see what role they played in contributing to the wreck.

Here is an article from FDCC Quarterly titled "’But I didn’t do it!" Expanding Theories of Vicarious Liability." Written by Robert T. Franklin, General Counsel to the Maryland Motor Truck Association, the article discusses court decisions from around the country against freight brokers and shippers. Those of you who are plaintiffs’ lawyers will not like the tone of the article (it is not particularly complimentary of the plaintiffs’ bar) but there is no reason why you cannot use his research to help you serve your clients.

February 11, 2009

Auto Fatalities Decline

by The Law Offices of John Day, P.C.

The National Highway Traffic Safety Administration has reported that automobile accidents for the first 10 months of 2008 are down significantly when compared with the same period in 2007.

Fatalities are down 10% to a total of 31,110 deaths in the first 10 months in the year. If these numbers hold until the end of the year, total deaths will be under 38,000.

Thirty years ago, in 1979, there were 51,093 deaths on our nation’s highways. Of course, the number of vehicles on the road and the number of miles driven have increased dramatically during this time?

February 11, 2009

Fear of HIV Lawsuit – Defendant Roberto Alomar

by The Law Offices of John Day, P.C.

CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend, who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS. She has tested negative for the disease. Here is a copy of the complaint.

Alomar’s attorney says the lawsuit is frivolous (surprise) and says his client is healthy and wants to keep his health status private. Hmmm.

Would the ex-girlfriend have a claim in Tennessee? Perhaps. Tennessee does recognize a claim for negligent transmission of a sexual disease, but recall she did not get a sexual disease. Her claim is for emotional distress arising from fear of contracting a disease that she did not get.

February 10, 2009

Medicare Subrogation in Wrongful Death Cases

by The Law Offices of John Day, P.C.

From time to time I will see a question posted on the trial lawyers’ listserve asking whether Medicare has a subrogation interest in wrongful death proceeds. The answer is "yes," and this opinion helps explain why.

Tennessee wrongful death law permits the recovery of medical expenses incurred between the injury caused by negligence and the death. Missouri has similar law, and the Eighth Circuit Court of Appeals affirmed the right of Medicare assert a right to a portion of the proceeds.

The case is Mathis v. Leavitt, No. 08-1983 (8th Cir. Jan. 30, 2009). Read it here.

February 9, 2009

Thought-Provoking Article

by The Law Offices of John Day, P.C.

Today’s USA TODAY includes an interesting article titled "How much ‘truth’ is too much?" written by Rod Dreher. The article addresses the impact of the Roman Catholic Church’s sex abuse sandal on the life of the author, who investigated and wrote about it.

Readers who know me know that our firm filed the two successful cases against the Nashville Diocese of the Roman Catholic Church. We were associated in the cases by John Hollins, Jr. I will not go into details, but suffice it to say that these two cases changed my life, and not in a positive way. I continue to struggle with conduct of the Church in those cases, actions that I did not believe would be even possible from those affillated with any respectable church. Perhaps I was naive, but unlike most times in my life the education I received has had more negative consequences than positive.

Like the author, I disagree with the concept expressed by Father Richard John Neuhaus, who is reported as having said "[t]here are things [Catholics] really don’t want to know about their church." Like the author, there are times I wish I had not looked under the rock. And, like the author, I sometimes wonder "[h]ow much reality must we choose to ignore for the greater good of our own souls, and society?"

February 6, 2009

More of “Ruining a Deposition”

by The Law Offices of John Day, P.C.

Here is Part 2 of Evan Shaeffer’s post called "15 Ways to Ruin a Deposition." Evan writes "The Trial Practice Tips Weblog" and "The Legal Underground." Here is Part 1.

February 4, 2009

Lawyer Medical Malpractice Reports Due March 2

by The Law Offices of John Day, P.C.

The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements. Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008.

The Act requires the report to be filed with the Department of Commerce and Insurance offices on or before March 1 of each year. Since March 1 falls on a weekend, the report will be due March 2nd.

The new medical malpractice forms and instructions for the 2008 calendar year can be found at the Department of Commerce and Insurance’s web site. That site is http://www.state.tn.us/commerce/insurance/medExpRpt.html.

February 3, 2009

Invasion of Privacy – Wife vs. Husband

by The Law Offices of John Day, P.C.

Jeffrey surreptitiously installed video equipment in the bedroom of the marital home (where Jeffrey may or may not have been living, depending on whom one believed), including a motion sensing optical eye in the headboard of the bed and a camera concealed in an alarm clock. His wife Cathy learned of the activities and sued her husband for invasion of privacy.

The tape that Cathy was able to get her hands on contained nothing of a demeaning nature. She could not prove that Jeffrey shared the results of his taping activities with anyone else.

In the divorce action filed by Jeffrey Cathy was awarded damages ($22,500) for invasion of privacy.

February 2, 2009

Ruining a Deposition

by The Law Offices of John Day, P.C.

Evan Schaeffer at The Trial Practice Tips Weblog has started a three-part series titled "15 Ways to Ruin a Deposition." Here is his first post on the subject.

The first tip? Deposing someone who doesn’t need to be deposed at all.

February 2, 2009

Insurance Policies Limits Are Not Discoverable UPDATED

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has just ruled that liability insurance policy limits are not discoverable in typical personal injury and wrongful death cases in Tennessee.

Unlike the vast majority of states, our TRCP 26 does not mandate disclosure of limits. The Court ruled that insurance policy information " is not subject to discovery under Tennessee Rule of Civil Procedure 26.02 because it is neither admissible nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence."

On the bright side the Court said this: