Day on Torts

December 4, 2006

Death of Drunken Driver Not “Accidental”

The United States Court of Appeals for the Fourth Circuit has ruled that a drunk driver’s death was not "accidental" and therefore his surviving spouse could not collect accidental death benefits under an insurance policy.

The decedent’s blood alcohol level was fifty percent higher than the legal limit when he ran into the rear of a tractor trailer parked eight feet off a West Virginia road. It was, of course, 3:49 a.m.

His wife sought "accidental death benefits" from an insurance policy provided by the decedent’s employer. The policy provided coverage "if the insured dies ‘due to an accident.’ The Plan defined ‘accident’ as ‘an unexpected and sudden event which the insured does not foresee.’ The Plan also provided that "ReliaStar Life has final discretionary authority to determine all questions of eligibility and status and to interpret and construe the terms of this policy(ies) of insurance." ERISA governed this case.

December 3, 2006

Sunday Spoof – Notre Dame Releases 2007 Football Schedule

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

The University of Notre Dame has released its football schedule for 2007:

September 1 Air Force (home)

September 8 Navy (home)

December 1, 2006

Blue Chipper Format

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

Several times in the last few months I have posted blue-chippers in a new format. (For those of you who do not know what a blue-chipper is read this post). Examples can be found here, here, and here.

My question to you is this: do you like this format? Is it helpful to you? What changes do you recommend? Obviously, it takes a good deal of work to put one of these posts together and I could save some time using an abbreviated format as I have done in the past if readers do not find the additional information helpful.

Please let me know your thoughts, via either a Comment or a private email to jday@branhamday.com.

November 30, 2006

Court to Plaintiff: Go Puck Yourself

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

The South Carolina Supreme Court has ruled that a spectator at a hockey game may not sue when he is hit in the face by a puck, and cited Tennessee law in reaching its conclusion.

The South Carolina Court said: "Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998) (emphasis in original).[1] The Davenport Court further explained the doctrine as follows:

Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff. . . .[T]he Tennessee Supreme Court summarized the doctrine in the following way:

November 29, 2006

Op-Ed Piece

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

I enjoyed Cyrus Dugger’s op-ed piece from The West Virginia Record and thought you would, too.

An excerpt from "Sue as I say, not as I sue:"

"It is striking, however, how quickly those who advocate for tort "reform" are willing to change their tune. While they publicly "speak out" about how too many lawsuits are ruining a state’s economy, or how lawsuits are somehow innately "bad," when they or somebody they love is injured, all of this public rhetoric goes out the window and they go straight to court. In short, these people are tort "reform" hypocrites. "

November 29, 2006

Justice Programs

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

Ok, this is your last Justice Programs seminar post of the year.

This week (Thursday and Friday) we are in Nashville and are almost sold out. We have a few spots left at chairs with tables and then we will have to put attendees in chairs without tables. We booked a room that would allow us to increase the number of attendees by over 100% over the number we had last year but have still run out of room.

Next week (December 7 and 8) we conclude the seminars with our program in Memphis. We are expecting another record crowd there.

November 28, 2006

Non-Disclosure of Witness Results in Reversal of Jury Verdict

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

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a driver who was operating his vehicle under the influence of alcohol. They sued the restaurant where the driver had been drinking alleging inter alia that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories. The specific interrogatory at issue was as follows:

November 23, 2006

Tort Law – A Break for Turkey Day

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

I will not be blogging for a few days. I am taking today off for Thanksgiving and tomorrow morning I am off to Mexico where I will be speaking at a seminar on tort law to some Tennessee lawyers who also have an interest in diving. I will be speaking on Saturday and Sunday (three hours per day) and spending the rest of the time relaxing in Cozumel.

I hope you and your family have a wonderful holiday.

November 22, 2006

Attorney Sues Adjuster for Defamation

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

A Nationwide insurance adjuster met with a personal injury claimant in an effort to settle a claim. The claimant indicated he intended to select a certain attorney as his counsel. The adjuster said that the attorney just took peoples’ money and that the attorney’s clients would receive more money if they dealt with the adjuster directly.

The lawyer (Tronfeld) sued and the trial court dismissed the case, stating that the statements of the adjuster were statements of opinion and thus not actionable.

The Virginia Supreme Court said that "[u]nless Schmitt’s statements are opinion, they are sufficient to sustain a cause of action for defamation per se because the statements prejudice Tronfeld in his profession as an attorney at law. To state that an attorney “just takes people’s money” and that an attorney’s clients receive less for their claims because of the attorney’s services implies a combination of dishonesty, incompetence or the crimes of larceny by trick or obtaining money by false pretenses. … Such statements damage an attorney’s standing to engage in his or her chosen profession and carry the connotation that he or she lacks the integrity and fitness to practice law."

November 21, 2006

Blue Chipper – Policemen and Firemen’s Rule

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

The Case: Carson v. Headrick, 900 S.W..2d 685 (Tenn. 1995). Author: Justice Riley Anderson.

Why it is a Blue Chipper: Carson is the leading, current case on policemen and firemen’s rule.

The bottom line: