Day on Torts

April 12, 2005

Discovery in Bad Faith Cases

The Florida Supreme Court recently held that a person bringing a first-party bad faith action against an insurance company has the right to discover all materials contained in the underlying insurance claim and related litigation file. Read the decision by clicking here.

In this type of case there is always a big fight over whether certain materials are protected by the work product privilege. Insurers attempt to invoke the doctrine. Plaintiffs seek the documents, saying that the information in such documents is directly relevant to resolution of the issue of whether bad faith was committed. In Florida, full discovery has traditionally been permitted in third-party claims but the law on first party claims was not as generous. This law opens up discovery in first party bad faith cases.

Florida has a well-developed body of bad faith law. This decision substantially changes the law of discovery in those cases and will greatly impact the law on this subject around the nation.

April 11, 2005

Effective Appellate Advocacy

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

Here is a great article written by Robert Gilbreath in Certworthy, a publication of the DRI Appellate Advocacy Committee. I found it with the help of Evan at his Illinois Trial Practice blog.

The article summarizes points about appellate advocacy made by Karl Llewellyn in a 1960 law review article. Titled “The Seven ABCs of Successful Appellate Advocacy,” Gilbreath’s article appears on Page 13 of the PDF file.

One point made in the article that I think is often missed by those who file briefs and make arguments before appellate courts is the need to make judges understand why good public policy supports your position. Judges are human. They want to do the right thing. It is your job to help them understand that adopting your position is the right thing to do.

April 11, 2005

Upcoming Seminar Programs

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

Last year former Justice Penny White, former Judge Joe Riley and I started a seminar program call “Justice Programs.” We had seminars across the State last fall. The program had great attendance and great reviews.

Penny, Joe and I are doing a similar program this year, but we have lengthened the program to offer 15 hours. The seminar is “Cutting Edge Developments and Practice Pointers.” It is designed to help civil trial practioners stay up to date on civil procedure, evidence and substantive law. We will also be sharing practice pointers to help lawyers do a better job representing their clients.

Read more about these programs by visiting our website.

April 10, 2005

New Personal Jurisdiction Decision

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

The Tennessee Court of Appeals has issued a new opinion finding that Tennessee has in personam over a Georgia bank sued by a Tennessee business.

Progeny Marketing v. Farmers and Merchants Bank arises out of a claim by the plaintiff that it was not paid for certain work it did for the defendant bank. The trial judge ruled that bank could not be sued in Tennessee, but the Court of Appeals, in an opinion written by Judge Cain, held to the contrary.

The opinion does not represent new law, but is brought to your attention because it is one of the rare jurisdiction cases decided by our appellate courts. The opinion will be particularly helpful to Tennessee individuals and companies who sign service contracts with out of state entities.

April 10, 2005

Tort Law Tidbit – Injuries to Felons

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

This is another tort law tidbit.

I do not know why anyone would ever take one of these cases, but Tennessee law gives immunity to those property owners or occupiers who intentionally or accidently cause injury or death to a person who a perpetrating one or more of several enumerated felonies. Immunity is only given to persons who harm the perpetrator while he or she is in the act or while the person is trying to apprehend the perpetrator.

This is the “Don’t Mess with Me or Mine or I’ll Blow Your *ss Away and Be Immune from Suit” Bill.

April 8, 2005

Testimony Before Legislature

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

Yesterday I had the opportunity to testify before a group of state legislators interested hearing debate about a bill designed to limit the ability of patients to file medical malpractice lawsuits and recover adequate compensation when they do.

The bill, HB 2122, includes a provision that would give a defendant tortfeasor the right to reduce the damages awarded by the jury by the amount of life insurance paid for by the decedent, the disability insurance paid for by the plaintiff, the social security benefits received by the decedent’s family or the injured person, and worker’s compensation benefits.

It would also wipe out subrogation interests for every insurer who paid benefits to medical negligence victims. Indeed, it even attempts to eliminate subrogation interests for Tenncare, Medicare, and ERISA-based subro claims. Hmmm.

April 8, 2005

Finger in Chili

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

Everyone has heard about the allegations of Anna Alaya: she says she found a finger in the chili she bought at Wendy’s. Wendy’s says that ain’t so. Indeed, someone has persuaded the Sana Jose police to search the woman’s home in search of – I guess – evidence that the finger was planted.

I like Wendy’s. I have never found a finger or any other foreign object in Wendy’s chili. But, if Wendy’s served chili with a finger, they should get nailed for it.

On the other hand, if this woman is trying to extort money from Wendy’s by planting a finger in her chili, she needs a little time in the joint. We cannot have people trying to game the system.

April 7, 2005

FDA Asks Pfizer to Withdraw Bextra From Market

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

The Food and Drug Administration has asked Pfizer to withdraw Bextra from the market “because the overall risk versus benefit profile for the drug is unfavorable.” Pfizer has agreed to do so pending further discussions with the agency. Here is a the FDA press release.

The press release goes on to say that the “FDA is asking the manufacturers of all OTC NSAIDs to revise their labels to include more specific information about the potential CV and GI risks, and information to assist consumers in the safe use of the drugs.” Celebrex is being allowed to stay on the market with revised labels.

This probably means that the FDA will not allow Vioxx back on the market. I will keep you updated.

April 7, 2005

Going to the Scene

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

You cannot (or at least I cannot) get a real feel for a motor vehicle accident scene without going there.

I need to stand and watch traffic move in the area. I want to look at the scene from the viewpoint of all of the participants. I have to get that feel of the area before I take depositions in the case. Intimate knowledge of the scene allows you readily respond to issues that arise in depositions about the scene itself, giving you the opportunity to get helpful admissions or allowing your adversary (or a witness) to make errors that you can later prove.

So, I encourage you to leave the office and visit the scene of the motor vehicle crash. Try to go at the same time of day as when the incident occurred. If you need to take measurements I would encourage you to go very early in the morning when the sun is just coming up but before the traffic gets heavy. Sunday mornings are the best.

April 6, 2005

IRAs Protected in Bankruptcy

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

Are you thinking you got the wrong blog? Bankruptcy law? What does John Day know about bankruptcy law?

The answer is “absolutely nothing.” Well, that is not quite true; I know enough about bankruptcy law to know when to call a bankruptcy lawyer.

But this opinion caught my eye. In Rousey v. Jacoway the United State Supreme Court ruled that creditors may not seize individual retirement accounts in bankruptcy proceedings. Several other courts had reached a contrary position, reasoning that since one can withdraw money from an IRA before retirement the assets in the IRA should not be protected from creditors. The 9-0 opinion was authored by Justice Thomas.