Day on Torts

State Volunteer Mutual Insurance Company , the doctor-owned medical malpractice insurance carrier, continues to enjoy profitability, according to my review of its 2007 Annual Report that was recently filed with the Tennessee Department of Commerce and Insurance.

A few highlights:

* Surplus, the insurance industry equivalent of net worth, increased almost $28,000,000 to a total of $245,000,000. This follows a $33 million dollar increase in 2006 and a $16.4 million dollar increase in 2005.

*The increase in surplus occurred even though total earned premiums dropped by $4,000,000.  Incurred losses were down by almost $20,000,000. 

* Net admitted assets now total $941,000,000, up over $70,000,000 from one year earlier.  The Company should hit a billion dollars in assets in 2008 or the first quarter of 2009.

* After tax profits were reported at $30,463,000, up  almost 30% from a year earlier.  2006 profits totaled $23,000,000  and in 2005 profits were $14,730,000. Total profits for the last 5 years are approximately $91,000,000.

*  The company paid a total of 152 claims in the entire state of Tennessee last year.  The payments totaled 62,833,000.  The average payment per claim was $413, 375.   In 2006, the company paid out money to plaintiffs in 158. The total amount paid was $56,660,652. The average payment per claim was $358,611.

* As of 12/31/07 there were 1,716 pending malpractice claims against SVMIC insureds.  Note that this is not pending lawsuits, but rather claims. 

 What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker's of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

(Originally appeared May 39, 2005).

Tortsprof Blog has been kind enough to let us know that Directorship has released its second annual Boardroom Guide to State Litigation Climates. According to the Guide:

Directorship’s Best and Worst States for Business

The 10 Best

1. Tennessee
2. Utah
3. Indiana
4. Ohio
5. North Dakota
6. North Carolina
7. Nebraska
8. Virginia
9. Michigan
10. South Dakota

Improving

1. Oklahoma
2. South Carolina
3. Mississippi
4. Louisiana
5. Tennessee

The 10 Worst

1. Illinois
2. West Virginia
3. Rhode Island
4. Pennsylvania
5. California
6. Florida
7. Montana
8. New York
9. Maryland
10. Alabama

Declining

1. Kansas
2. Washington
3. Colorado
4. Hawaii
5. Oregon

Here is what the magazine says about Tennessee:  "Moving up from 11th place in last year’s rankings, Tennessee is now the top-ranked state. Pacific Research Institute’s 2008 report listed Tennessee as the state with the lowest litigation risks in the country. While the state’s liability climate encourages growth and job creation, it’s also a state to watch because its tort laws do not place limits on non-economic and punitive damages and there are some plaintiff-friendly venues in Tennessee. The state Supreme Court is considered neutral on liability issues."

Harris Interactive conducted a online poll about  jury service in December 2007.  The findings include the following:

* "Two-thirds (65%) of Americans have been called to serve jury duty, two-thirds of that (68%) actually attended, leaving one-third (32%) who did not.

* Of those who have attended jury duty, just over half (55%) have actually served on a jury.

* The more education one has, the more likely one seems able to avoid serving on a jury.

* A majority (58%) of adults say people on trial have a jury that is fair and impartial all or most of the time while one in five (21%) say the jury is fair and impartial occasionally. Just eight percent say juries are rarely or never fair and impartial. There is a racial disparity in this belief. Almost two-thirds (63%) of Whites and over half (55%) of Hispanics believe people who are on trial have a jury that is fair and impartial all or most of the time compared to just 37 percent of Blacks.

* Half of Americans (50%) would trust a jury to give a fair verdict while just under one-quarter (23%) would trust a judge and 27 percent are not sure."

See all the results here.

Thanks to www.juryblog.com for advising me about the poll.

As a 51 year old man happily married to a beautiful, intelligent 37 year old woman, I confess I don't spend a lot of time thinking about thongs.  I also confess that it never crossed my mind that a person wearing a thong could ever suffer a personal injury from the thong.    Oh sure, I knew that a thong could cause financial loss, usually in the form of alimony paid by the married man dating a woman who wore one.  And I could certainly image some degree of discomfort when wearing a thong in a foreseeable manner- clearly an assumed risk.  But actionable personal injury?  Nope, never crossed my mind.

Well, it has happened.  Or at least Macrida Patterson, a 52 year old woman from California, says it happened.  Her lawyer told The Smoking Gun that "a "design problem" caused [a] decorative piece [on the thong] to come loose and strike Patterson in the eye, causing damage to her cornea."    The offending piece of merchandise was  reportedly  a "'low-rise v-string' from the Victoria's Secret 'Sexy Little Thing' line."  Read the article and complaint here.

TSG also tells us that   "v-strings" are an undergarment that serves as  the Victoria's Secret variant on the "g-string," " which has long been favored in the battle against visible panty lines" (also known as "vpls").  (Aren't you men glad TSG saved us hours of time paging through the latest VS catalog trying to figure this out?  For those of you who don't trust TSG, go here and conduct your own research.)

Tort law - a wonderful way to make a living.

The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.

Rule 35 is the rule the permits a party to have a physician of the party's choice examine the adverse party.  Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such.  Rule 35 exams usually have the same degree of objectivity as a mother opining on  the character and physical appearance of her only son. 

But on to substance.  Very few civil procedure cases find their way to the Tennessee Supreme Court (exception:  Rule 56) and when one does get there we need to read it.  This is true even in this case where the plaintiff was pursuing a worker's compensation claim and the issue is primarily covered by the Worker's Compensation Act.

The  bottom line for examinations under the Act:  "In summary, we hold that an employer has a statutory right to compel an injured employee to undergo a medical evaluation by a physician of the employer’s choosing. The employee may challenge the request as unreasonable in light of the circumstances. If the trial court determines the request is reasonable, the employee must submit to a medical evaluation conducted by the physician of the employer’s choice. ... If the employer’s request is unreasonable, the trial court should deny the request, but must specifically state its reasons in the record."

The Court's opinion makes it clear that Rule 35 examinations sought in cases not subject to the Act are subject to a different standard:  "Once the moving party establishes a mental or physical condition “in controversy” and “good cause,” the rule gives the trial court discretion to order a medical examination."   

Read the entire opinion in Billy Overstreet v. TRW Commercial Steering Division and State of Tennessee Dept. of Labor Workers' Compensation Division Second Injury Fund, Sue Ann Head, Administrator,  M2007-01817-SC-R10-WC  (Tenn. June 17, 2008)  here.

Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law.  The Act is effective for discovery requests after July 1, 2008. 

The legislation establishes a procedure for litigants in other states to do discovery in Tennessee.  However, the Act is a uniform act, so Tennessee lawyers will benefit from knowledge of it when they have to do discovery in other states that also have the Act

The legislation also repeals on portion of the current chapter, T.C.A. Section 24-9-103.

Here is the text of the new law

Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated to include tort cases released by the Tennessee appellate courts through June 13, 2008.

Work is underway for the 2009 edition.  Those of you who have purchased the book will be receiving a survey via email within the next view days seeking your input on what we can do to improve the book.  The survey contains only ten questions and can be answered in less than 2 minutes.  Please share your thoughts with us and help us make the 2009 edition even more helpful to our readers.

The United States Supreme Court has ruled that a successful plaintiff may recover paralegal fees in a case against the government covered by the Equal Access to Justice Act.

Although not binding on Tennessee courts in those limited cases where attorneys' fees are recoverable,  the result can be used as support for the general notion that paralegals perform valuable services in litigation and therefore should be given fair consideration in fee awards.

Read Richin Security Service Co. v. Chertoff,  No. 06–1717 (USSC June 2, 2008) here.