Day on Torts

April 27, 2020

Fall Off Examination Table Within Health Care Liability Act

Plaintiff’s allegation that the examination table provided during a doctor’s appointment was unsafe fell under the Health Care Liability Act (HCLA) and was thus subject to dismissal due to plaintiff’s failure to provide pre-suit notice.

In Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2020), plaintiff had suffered from dizziness and fatigue, and he had a pacemaker implanted. In a later visit “for reprogramming of his pacemaker and other issues,” plaintiff fell off the examination table and hit the wall at defendant’s office “due to a fainting spell, resulting in injuries to [his] neck.”

Plaintiff filed suit alleging negligence, and his allegations were couched in premises liability language. Plaintiff asserted that defendants were negligent by failing to provide an examination table with railing and/or by failing to have padding. Plaintiff argued that “because Defendants knew that he suffered from fatigue and dizziness, they should have been aware of the risk associated with leaving him unattended on the examination table.”

April 22, 2020

Court: No Fraudulent Concealment Present

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

Where an HCLA plaintiff sought to add a nurse practitioner’s supervising doctor and employer more than three years after the negligent act occurred, and plaintiff could not show that the new defendants were “aware of the wrong,” plaintiff could not prove the fraudulent concealment exception to the HCLA statute of repose and summary judgment should have been granted.

In Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020), plaintiff had a bad cough on Christmas Eve 2009 and believed she had bronchitis. Plaintiff’s friend, Ms. Johnson, suggested that her friend, Nurse Iveson, might be able to help. “Nurse Iveson was employed as a nurse practitioner at Sun Medical Express Walk In Clinic,” but she was not working that day and was out on personal business when Ms. Johnson contacted her. Either Ms. Johnson or plaintiff explained plaintiff’s symptoms to Nurse Iveson, who then wrote plaintiff a prescription for an antibiotic, oral steroids, and an inhaler. Ms Johnson retrieved the prescription and took it into Walgreens, and plaintiff later picked the prescription up. Some time after taking the medications plaintiff began experiencing tendonitis and was told by her physician “that the most likely cause of her condition was the medication prescribed by Nurse Iveson.” Plaintiff alleged that neither Nurse Iveson nor anyone at Walgreens told her that “one potential side effect of the antibiotic was tendonitis or that the risk of tendonitis increased if the antibiotic was taken with steroids.”

April 20, 2020

Summary Judgment and Rule 56.03 Statements

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

Where plaintiff presented a statement of undisputed material facts that called into question the check cashing policies of defendant, but that statement of facts was ignored by the trial court in granting summary judgment for defendant, summary judgment was reversed.

In Great American Insurance Company v. Pilot Travel Centers, LLC, No. E2019-00649-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2020), plaintiff filed a negligence suit against defendant in relation to checks that were cashed by defendant’s stores. Plaintiff was a Comdata customer and used the Comdata system to pay certain independent contractors. Using this system, plaintiff would request a code for a Comdata check to be issued, and the check would be printed by defendant Pilot Travel Centers, which was a Comdata vendor. Independent contractors could then retrieve these checks from Pilot stores.

From June 2010 to March 2011, an employee of plaintiff, “without the knowledge or permission of [plaintiff,]” presented 689 codes at Pilot stores and both retrieved and cashed the checks, totaling over $368,000. Neither the employee nor plaintiff were the payee on the checks, and she cashed the checks wearing her work uniform, but defendant’s policy was to allow the “person presenting the code” to cash the check and “did not require that the payee of the check match the identification presented when the Comchek was cashed.” The employee used the controller’s password to request the codes, and there was a General Manager at plaintiff company in charge of “reviewing and signing off on the Comdata transactions.”

April 16, 2020

Arbitration Right in Underinsured Motorist Statute Not Triggered

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

When a person allegedly liable for the injury of a claimant “offers the limits of all liability insurance policies available to the party,” the Uninsured Motorist (UIM) statute provides an avenue through which the claimant may accept the offer but also “preserve the right to seek additional compensation from his or her UIM insurance carrier…” (internal citations omitted). In order to trigger the portion of the UIM Statute that requires a claimant’s insurance company to “elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights…,” the requirement that the insurance company of the person responsible for the injury notify the UIM carrier that the party is willing to cooperate with arbitration is mandatory, and the UIM carrier is not required to request this assurance.

In White v. State Farm Mutual Automobile Insurance Company, No. W2019-00918-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2020), plaintiffs were injured in a car accident. The other driver was insured by USAA, who offered the limits of the driver’s policy as settlement for plaintiffs’ claims. Plaintiffs had car insurance with defendant State Farm, which included UIM coverage.

In April 2018, plaintiffs informed State Farm by letter that they intended “to settle with USAA for the liability insurance policy limits…[and that they] were willing to submit their UIM claim to arbitration and that they hoped to work amicably toward a settlement with State Farm.” The next month, State Farm responded that plaintiffs had permission to settle with USAA and that it was still evaluating the UIM claim. Two weeks later, State Farm told plaintiffs that “it would not offer a settlement for their UIM bodily injury coverage because State Farm believed [plaintiffs] had been fully compensated for their injuries.” Plaintiffs responded by invoking Tenn. Code Ann. § 56-7-1206 and stating that State Farm should “tender $25,000 to each insured in order to proceed to a jury trial or waive jury and go to arbitration.” State Farm responded that the provisions of the UIM statute had not been triggered.

April 10, 2020

New Executive Order on Notarizing Documents

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

Tennessee’s Governor has issued Executive Order 26, which permits the remote notarization and witnessing of documents. The Executive Order outlines the procedure that must be followed for the remote notarization to be effective.

The Order is effective today but expires on May 18, 2020.

April 9, 2020

Where Can A Product Manufacturer Be Sued?

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

Under what circumstances can a product manufacturer be hauled into state court to defend a products liability claim when the injury occurred in that state ? Or, as put by Ford Motor Company in Ford Motor Company v. Montana Eighth Judicial District Court:

Whether the “arise out of or relate to” requirement for a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.

The United States Supreme Court has accepted Ford Motor Company v. Montana Eighth Judicial District Court for review, consolidating it with the Minnesota case of Ford Motor Corporation vs. Bandemer.

April 8, 2020

Remote Video Depositions

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

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.