Day on Torts

April 8, 2020

Remote Video Depositions

With COVID-19, courts in Tennessee are encouraging rapid adoption of remote video depositions while in-person proceedings are limited. Remote video depositions provide the opportunity for all litigants and litigators who want the case to progress to its ultimate resolution.

Brandon Bass, an experienced trial lawyer and shareholder in our firm, shares his thoughts about remote video depositions in the following blog post:

Deciding whether to agree to (or push for) a remote video deposition is a case-by-case strategy decision with some intangible factors to consider. The deponent’s demeanor and rapport with the questioning attorney may change, whether positive or negative. Attorneys must be attentive to logistical and technical issues that may be outside the attorney’s comfort zone from past experiences. Delay, on the other hand, costs time in each case and threatens to create a backlog of work to be done later – right as we should be working on the next batch of cases in discovery.

April 7, 2020

Sue Employer in Tort For Coronavirus-Related Death? Not in Tennessee

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

We have seen several wrongful death lawsuits filed the the families of deceased employees, claiming that the employers negligently caused the death of the decedents by, for example, “knowing” about the decedent’s COVID-19 symptoms and disregarding them. Here is an example on one such lawsuit in Illinois.

The Illinois lawsuit alleges “The lawsuit alleges Walmart was negligent because it did not adequately clean the store, enforce social distancing, notify employees about colleagues who were showing coronavirus symptoms and provide protective gear, such as gloves and masks.”

Candidly, we don’t know anything about Illinois law, but we can tell you that dog won’t hunt in Tennessee. Tennessee has a very strong “exclusivity doctrine,” which means that subject to several exceptions (discrimination lawsuits, for example – see Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277 (Tenn. 1999)) an employee (or in the event of death an employee’s family) only right to sue an employer for conduct in the workplace that gives rise to injury or death is under the law of worker’s compensation (not the law of negligence).

April 3, 2020

Immunity For Government Employ Denied

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

Where a trial court did not explain the legal basis for its ruling that a deputy sheriff was immune from a defamation suit under the GTLA, the Court of Appeals vacated the judgment.

In Taylor v. Harsh, No. M2019-01129-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2020), plaintiff filed suit against defendant, who was a deputy sheriff, for slander, defamation, and interference with prospective economic advantage. The complaint specified that defendant was being sued in his individual capacity. According to plaintiff, defendant pulled plaintiff over for a traffic stop “that resulted in no citation or arrest,” and defendant “thereafter informed an official with a youth volunteer firefighter program…that Plaintiff had committed a felony and fled from the police,” which caused plaintiff’s participation in the program to be terminated.

Defendant filed a motion for summary judgment, arguing that he was immune under the Governmental Tort Liability Act (GTLA). The trial court granted the motion, writing in its memo that defendant “was entitled to the immunities set forth in Tenn. Code Ann. § 29-20-205(2).” In its oral ruling, the trial court found that defendant was entitled to immunity, but “focuse[d] primarily on the facts of this case, rather than the law.”

April 2, 2020

Day on Torts Nugget: Proper Way to Draft a New Complaint After a Voluntary Dismissal

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

Sometimes, a voluntary dismissal under Rule 41 of the Tennessee Rules of Civil Procedure is required and appropriate but the plaintiff wishes to re-file the case within the time permitted by the “savings statute” (Tenn. Code Ann. Sec. 28-1-105).

What do you allege to avoid the risk of the defendant filing a motion to dismiss for failure to comply with the applicable statute of limitations?

Let’s use a hypothetical to demonstrate the point. Plaintiff is injured in a car crash on December 27, 2017. Plaintiff files suit against Defendant on August 14, 2018. Plaintiff needs to voluntarily dismiss the case, and does so by order dated April 20, 2019. The case is one to which the “savings statute” applies.

April 1, 2020

Statutes of Limitation and Repose Extended in Tennessee

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

The Tennessee Supreme Court has extended the deadlines for filing suit (both statutes of limitations and statutes of repose) because of the coronavirus and Covid-19.

By Court Order filed March 25, 2020, the Court said this:

Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through

April 1, 2020

Dismissal based on intentional delay of service of process affirmed.

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

Where a plaintiff knew how to properly serve a defendant yet chose to delay service of process until after the statute of limitations on his claims had run, summary judgment for defendant was affirmed.

In Fuller v. Allianz Life Insurance Company of North America, No. E2018-02267-COA-R3-CV (Tenn. Ct. App. Feb. 19, 2020), plaintiff filed suit against defendant and Community National Bank in 2015. In that suit, plaintiff initially sent a summons for defendant to CT Corporation System, but CT Corporation informed plaintiff by letter that it was not authorized to accept service for defendant. Plaintiff then successfully served defendant’s general counsel. This first suit was eventually nonsuited, and plaintiff filed second suits against defendant and Community National Bank separately. For the suit against defendant, which was originally filed in August 2017, plaintiff again sent a summons to CT Corporation, who responded by letter in November 2017 that it was not authorized to accept service. “Plaintiff’s counsel did not attempt to properly serve defendant until March 20, 2018, when he returned the unserved summons, and obtained and mailed a second summons to defendant’s general counsel.”

March 26, 2020

Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

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

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator. Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website) “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019). The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.

March 25, 2020

Tennessee Considers Extent of Specific Personal Jurisdiction

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

Under what circumstances can a Tennessee court insist that an out-of-state defendant submit to the jurisdiction of a Tennessee state court? The Tennessee Supreme Court is facing this issue in Crouch Railway Consulting, LLC v. LS Energy Fabrication, LLC.

The case arose when the plaintiff, a Tennessee civil engineering company, filed an action for breach of contract and unjust enrichment against a Texas energy company (referred to in the opinions as “Lonestar” in Williamson County Chancery Court, alleging that the Texas company breached its contract with the Tennessee company by failing to pay for engineering and planning services. Lonestar filed a Tenn. R. Civ. P. 12.02(2) motion to dismiss for lack of personal jurisdiction. The trial court granted the motion, determining that the minimum contacts test had not been satisfied because the Lonestar did not target Tennessee. Additionally, the trial court determined that it would be unfair and unreasonable to require the Lonestar to litigate the dispute in Tennessee.

March 24, 2020

Day on Torts Nugget: Service of Process by Regular Mail During the Coronavirus

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

The coronavirus has impacted the service of summons and complaints as many sheriff’s departments make the effort to reduce human contact. Indeed, the coronavirus is having not only a short-term impact on the civil justice system but will have a long-term impact as well. Today we discuss an alternative to service of process by the local sheriff’s department.