Day on Torts

February 15, 2022

Covid-19 Shuts Down Tort and HCLA Trials in Tennessee in 2020-21

Tennessee’s tort and health care liability action trials came near to a screeching half for the fiscal year ending June 30, 2021.

There were only 31 jury and 113 nonjury tort trials in twelve months, and only 1 jury and 7 nonjury health care liability cases tried during the same period. Jury trials in tort cases were down over 70% from the year ending June 1, 2020 (108 to 31) and nonjury trials were down only slightly (121 to 113). HCLA jury trials were down over 80% (6 to 1) and nonjury HCLA cases were up slightly from 3 to 7).

In the HCLA cases, damages were awarded to the plaintiff in only one case (12.5% of cases).

In the tort cases, damages were awarded in 43 cases (29.9% of cases).

(We cannot say that the plaintiff “won” the cases in which damages were awarded. The plaintiff “prevailed” in those cases, but a “winning” is different than “prevailing.”)

February 14, 2022

Negligence case against insurance agent fails due to statutory presumption.

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

Because Tenn. Code Ann. § 56-7-135(a) creates a rebuttable presumption that a person who signs an insurance contract “has read, understands, and accepts the contents of such document,” and plaintiff did not rebut that presumption, the trial court properly granted summary judgment to defendants on plaintiff’s claims for negligence and negligent misrepresentation.

In Vanquish Worldwide, LLC v. Sentinel Insurance Company, LTD, No. E2020-01650-COA-R3-CV, 2022 WL 189791 (Tenn. Ct. App. Jan. 21, 2022), plaintiff provided certain services to the U.S. government, and it subcontracted some of these services to another company. Plaintiff purchased insurance through defendant insurance agent Steve Hardin, who met with plaintiff and was told that plaintiff “sought business liability coverage for the contract administration and claims bookkeeping that [plaintiff] performed under the trucking contract.” A policy was issued through defendant insurance company, which a representative of plaintiff executed.

February 10, 2022

Tennessee Legal Malpractice Claim Filed Too Late

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

The one-year statute of limitations for a legal malpractice claim began to run no later than when a representative for plaintiff reviewed the court file after the trial court had found in the other party’s favor, where the court file contained information sufficient to establish constructive notice of defendant attorney’s alleged wrongdoing in the underlying case.

In Coffee County v. Spining, No. M2020-01438-COA-R3-CV, 2022 WL 168145 (Tenn. Ct. App. Jan. 19, 2022), plaintiff county filed this legal malpractice suit against defendant attorney who had represented the county in an underlying action filed by a former county employee. In the underlying case, defendant and opposing counsel had attended a bench conference where they all agreed that the employee would seek emotional damages with the jury, and if the jury found that a PEPFA violation had occurred, the employee would then seek equitable damages through a bench trial. The attorneys agreed to a jury form that included only two questions, neither of which asked if the employee’s “termination actually resulted from the County’s PEPFA violation.” After the jury found for the employee, the county’s attorney moved for a new trial, arguing that the jury verdict did not support an award of damages from the termination. The trial court denied that motion and entered an award for the former employee on July 7, 2017.

February 8, 2022

Intentional misrepresentation and medical battery claims fell within HCLA

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

Where plaintiff alleged that defendant doctor made intentional misrepresentations when obtaining her consent for a surgery and therefore committed medical battery, the claims fell under the HCLA.

In Cooper v. Mandy, No. M2019-01748-SC-R11-CV, 2022 WL 175804 (Tenn. Jan. 20, 2022), plaintiff met with defendant doctor to discuss a breast reduction surgery, and defendant stated that “he was a board-certified plastic surgeon.” Based on these representations, plaintiff consented to the surgery, which allegedly went wrong in that it was “unnecessarily painful,” “performed in a barbaric fashion,” and left plaintiff “disfigured and with grotesque and painful bacterial infections.” Plaintiff later discovered that defendant was not board-certified as a plastic surgeon or in any other specialty.

February 7, 2022

Involuntary dismissal affirmed when video showed that defendant’s car was visible when plaintiff pulled onto roadway.

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

Where security camera footage showed that plaintiff pulled onto the road when defendant’s approaching vehicle was clearly visible, plaintiff was at least 50% at fault for the resulting car accident, despite the fact that defendant was going at least twenty miles per hour over the speed limit.

In Cryer v. City of Algood, Tennessee, No. M2020-01063-COA-R3-CV, 2022 WL 150854 (Tenn. Ct. App. Jan. 18, 2022), plaintiff was driving his vehicle with his wife in the passenger seat. When he pulled onto the road, attempting to cross two lanes of traffic and a turning lane, his vehicle was struck by a police cruiser driven by Officer Ferguson, who was employed by defendant city.

Plaintiff filed this negligence suit and defendant counterclaimed, also raising the defense of comparative fault. During a bench trial, the evidence showed that the police cruiser was in the left lane and had just passed a black car that was traveling in the right lane. Security camera video showed, however, that at the time plaintiff began pulling out, the cruiser was visible on the straight road. Evidence also showed that the cruiser was traveling at least 60 miles per hour while the speed limit was 40 miles per hour, and that the officer did not brake until a short time before impact. Plaintiff’s wife testified that she was talking to plaintiff when he pulled onto the road, and that shortly before this she had told him to put on his seatbelt.

February 3, 2022

Summary judgment vacated where trial court order failed to give reasons for decision

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

Where the trial court did not provide sufficient reasoning in support of its dismissal of plaintiffs’ various HCLA and informed consent claims, summary judgment for defendants was vacated.

In Boyd v. Gibson, No. W2020-01305-COA-R3-CV, 2022 WL 95167 (Tenn. Ct. App. Jan. 10, 2022), plaintiff had been treated by defendant doctor for cancer (defendant’s employer was also a defendant). This treatment began in 2014 and included surgery. According to plaintiff, defendant told her that she would not benefit from chemotherapy or radiation, and defendant “did not explain to [plaintiff] the survival rates with chemo/radiation and more extensive rectal surgery…” After the September 2014 surgery, defendant referred plaintiff to an oncologist “without discussing chemo/radiation therapy or consulting a radiation oncologist.” In August 2017, plaintiff learned that her cancer and reoccurred and spread.

February 1, 2022

Denial of motion to name correct defendant affirmed due to delay and lack of diligence

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

Where plaintiff named the wrong defendant in a Tennessee premises liability suit, was informed that the named defendant did not own the property three weeks after the complaint was filed, but failed to take any corrective action for more than four months when she filed a “Motion to Correct Misnomer” in response to defendant’s motion for summary judgment, denial of plaintiff’s motion and the granting of summary judgment for defendant was affirmed. In Bodine v. Long John Silver’s LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022), plaintiff fell on what she alleged was a dangerous concrete structure in a Long John Silver’s parking lot. The fall occurred on February 25, 2019, and plaintiff filed this suit on February 24, 2020, against “Long John Silver’s, LLC, individually and d/b/a Long John Silver’s.” Three weeks after suit was filed, counsel for defendant emailed plaintiff and stated that JAK Foods, Inc. was the franchisee for this restaurant location, and defendant did not own, operate, or control the restaurant or have any employees there.

Defendant filed an answer in April 2020, then filed a motion for summary judgment on June 11, 2020, asserting that it owed no duty to plaintiff. On July 28, 2020, plaintiff filed a “Motion to Correct Misnomer,” seeking to substitute JAK Foods as defendant. Plaintiff argued that the substitution should relate back to the date of the original filing under Tennessee Rule of Civil Procedure 15.03, as JAK Foods had “received timely notice of the action and that it should have known that but for the mistake regarding its identity, the action would have been brought against it.” In October 2020, defendant asked that the motions be put on the docket, and after a December hearing, the trial court denied plaintiff’s motion and granted summary judgment to defendant. When plaintiff filed a motion to alter or amend, the trial court specifically noted that it “considered…the extreme lack of due diligence exhibited by the Plaintiff” and that “no additional due diligence was performed by Plaintiff from July 2020 to January 2021.” The trial court accordingly denied the motion to alter or amend, and the Court of Appeals affirmed.

In its analysis, the Court of Appeals first pointed out that plaintiff had failed to designate “the grant of summary judgment as an issue for review,” so that issue was waived. The only issue on appeal, then, was whether the trial court correctly denied plaintiff’s “Motion to Correct Misnomer.”

January 31, 2022

Tennessee Supreme Court to Hear Two New Cases

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

Last week, the Tennessee Supreme Court agreed to hear two new cases.

One is a tort case. Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 addresses the torts of malicious prosecution and civil conspiracy.

The other, City of Knoxville, Tennessee v. Netflix, Inc., addresses the the right to regulate Netflix and Hulu (and similar concerns) by local governments. The Court accepted certification of a question of state law from the United States District Court in Knoxville.

January 26, 2022

BirdDog Law Now Has Free Access to Tennessee Rules of Criminal Procedure

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

BirdDog Law, the new leading resource center for Tennessee trial lawyer s and judges, now has free access to a user-friendly version of the Tennessee Rules of Criminal Procedure. Access the rules from your desktop, notebook, tablet or cell phone 24/7 anywhere you have access to the internet.

BirdDog Law is designed to help trial lawyers have ready, 24/7 access to materials they use everyday. BirdDog is still growing, but is quickly becoming the site of choice for Tennessee trial lawyers to access information they need to serve their clients.

Bookmark BirdDog!

January 25, 2022

Filing complaint with Tennessee Claims Commission did not satisfy requirement to give written notice to Division of Claims and Risk Management.

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

Where plaintiff wife failed to give written notice of her loss of consortium claim against the State of Tennessee to the Division of Claims and Risk Management, dismissal of her claim was affirmed, despite the fact that her complaint was filed with the Claims Commission within the statute of limitations.

In Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022), plaintiff husband was seriously injured when his car crashed into a state-owned vehicle that had been parked on a highway. Pursuant to Tenn. Code Ann. § 9-8-402, which applies to certain claims against the State, husband gave written notice of his claim for damages to the Division of Claims and Risk Management (Division of Claims). When the Division of Claims took no action within 90 days, husband filed a complaint with the Claims Commission. This complaint was filed just under one year after the car accident, and instead of only including husband’s claims, it also included a loss of consortium claim from plaintiff wife.