Under the definitions in most insurance policies a loss of consortium claim is included as part of a personal injury claim and therefore the two claims count as one claim for purposes of liability coverage.

Did you know that under the Governmental Tort Liability Act loss of consortium is a seperate claim and therefore a spouse for an injured plaintiff can seek recovery under a “seperate” cap? The case reaching this conclusion is Swafford v. City of Chattanooga, 743 S.W.2d 174, 178-79 (Tenn. App. 1987).

The relevant language: “Although a husband’s or wife’s claim for loss of consortium will always be “derivative” in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ” ‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.” T.C.A. ㋔ 29-20-102(4) (1980 and Supp.1986). Although ㋔ 29-20- 403 refers only to “bodily injury or death” in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests–that of removal of immunity for injury from unsafe streets and highways of ㋔ 29-20-203–controls. It reads that “immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition….” (emphasis added). To hold that the language “bodily injury or death” of ㋔ 29-20-403 controlled would create an exception to the clear removals of immunity created by ㋔㋔ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium.”

You may remember that the Congress passed a $287,000,000,000 transportation bill last month. What you may not have known is that a tort reform measure was slipped into the bill.

Transportation bills gives “pork” a bad name. Historically, they have been filled with local projects of questionable value. But now we have a Republican-controlled Congress that never misses the opportunity to give a get-out-of-litigation-free card to some special interest group. This gift in this bill – the elimination of vicarious liability for auto rental and leasing companies for 16 states and the District of Columbia.

In these states – Tennessee is not one of them – the leasing company was liable for the acts of the lessee. The cost of insurance was build into the cost of the leasse. No more.

Vioxx vs Patients – Round 2. Venue: NJ

The trial is underway, and the defense has already violated the Judge’s order not to attack the plaintiffs’ lawyers. They spent alot of time attacking Mark Lanier in round one, and it worked so well there I guess they thought they should try it again.

This has become a tactic of some defense lawyers in recent history. Seizing on the dislike of lawyers, some defense lawyers wrap themselves up in the corporate (or doctor) flag and try the lawyers rather than (or in addition to) trying the case. It happened to me in a trial in December.

A Sunday Spoof is my occasional attempt to inject a little fun into my otherwise dull life that is overly consumed by the law. It is my attempt to have fun with the law and current events in a way that I hope will cause you to smile. I will accept and, as appropriate, post a Sunday Spoof from a Guest Spoofer; send your submission to jday@branhamday.com.

This portion of the blog is 100% fiction. It is not meant to educate. It is meant to entertain, a goal it may not accomplish. Everything said here is a complete fabrication.

Federal tort trials are dropping like President Bush’s approval rating. From fiscal year 1985 through 2003 the number of federal tort trials dropped 79%, from 3600 to less than 800. Only 2% of all cases in that time period went to trial.

There were less than 100 products liability trials in federal courts in 2003.

Read the Department of Justice’s press release about the study here. If you want to read the entire report click here.

Today I am in Memphis to participate in the evaluations of our appellate judges. A couple years ago Lt. Gov. John S. Wilder appointed me to the Judicial Evaluation Commission. The Commission has the responsibility of evaluating judges and composing a summary statement about each judge for publication in newspapers before the upcoming retention election. Data is collected from lawyers who appear before the judges and other judges.

Obviously, the judges take this process very seriously. So do I. We are very fortunate to have a fine judiciary in this State, but appellate judges are not elected and face only a retention ballot and therefore I think it is very appropriate for judges to face an evaluation process. The key, of course, is trying to make the evaluation process meaningful and fair. We admittedly struggle with some issues – how do you define a “good” opinion – but I think the process is working and will continue to improve.

We have six days of interviews scheduled with judges across the state in the next couple months and then some additional dates set aside for discussion. We did a “practice” or “interim” session a year or so ago and it was taxing but interesting. There are a lot of judges and a lot of information.

Anna Ayala ain’t got nothin’ on these folks. You remember Anna – she gave Wendy’s the finger – in a bowl of chili – and then said that Wendy’s gave it to her. She is going to prison.

Now, a food supplier – of chili – has given the finger to the court system. Their current problem: a bunch of people have grabbed that finger and are about to twist it off.

This article from the Houston Chronicle is a horror story about discovery abuse. Fifteen people got sick and ten were hospitalized after eating from tubs of chili con carne. Litigation followed. Read this excerpt to learn about the discovery issue:

The Bush Administration is pushing forward with new trucking rules, even though the D.C. Circuit Court of Appeals found a similar set of rules “arbitrary and capricious” and “a threat to driver’s health” just last year. The rules come into effect October 1, 2005.

Here is a summary of the “highlights” of the new rules, as prepared by Lawyers Weekly U.S.A. :

*Increase the limit for consecutive driving for long-haul truckers to 11 hours, up from the 10-hour limit that had been in effect until 2003. However, they also shorten the total workday (including non-driving time) to 14 hours, down from 15.

Anna Ayala, the woman who claimed that she found a finger in a bowl of Wendy’s Chili, has plead guilty to filing a false claim and attempted grand theft. Her husband has also plead guilty for his part in the scheme.

The finger turned out to be that of a co-worker of her husband; it was lost in an industrial accident.

She is facing 10 years in the slammer. He is facing 13 years.

As reported here early earlier, Guidant has a problem with some of its defibrillators and has know about it for over three years. Now, it appears that it disclosed at least a part of what it knew to the FDA in February but the FDA did not act until June.

The New York Times just got the report under a FOIA request – a request orginally rejected by the FDA.

Read more here. For my other posts on this subject click here and here.

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