Civil Procedure

July 27, 2021

Defendant doctor can be compelled to testify regarding standard of care of co-defendant nurse he supervises; Minor on Tenncare Has Right to Sue for Medical Expenses

Where defendant doctor was the supervising physician for defendant nurse midwife, the Court of Appeals ruled that he could be compelled to testify regarding his “expert opinion about the care and treatment provided by” the nurse. And, perhaps more importantly, the court also ruled that a minor on TennCare has a right to recover medical expenses. Also discussed: what changes to testimony can be made on an errata sheet.

In Borngne v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021), plaintiff mother brought this HCLA suit based on injuries to her minor daughter during birth. Plaintiff, who was full term in her pregnancy, was admitted to the hospital and labor was induced. Plaintiff was at risk for preeclampsia, and her labor was managed by defendant nurse-midwife Mercer. Plaintiff pushed for one hour and forty-eight minutes, but the baby made no progress and the fetal heart monitoring strip showed concerning signs. Nurse Mercer called her supervisor defendant Dr. Seeber, who arrived 45 minutes later and ordered a c-section be performed as soon as possible. When plaintiff child was born, she was not breathing and was diagnosed with permanent brain damage due to lack of oxygen, as well as “severely debilitating injuries.”

Plaintiff filed this suit, naming several parties as defendants. Before trial, Dr. Seeber moved for summary judgment on the claims of direct negligence against him, which the trial court granted, meaning the only claims remaining against him were those of vicarious lability for the alleged negligence of Nurse Mercer. The case was eventually tried before a jury, and the jury returned a verdict for defendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff then filed this appeal.

May 10, 2021

Summary judgment reversed where tombstone fell and injured plaintiff.

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

Where plaintiff responded to a summary judgment motion by “offering proof of the cause of her injuries” from which a “rational trier of fact” could find in her favor, summary judgment should not have been granted. In Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. April 29, 2021), plaintiff was injured when she was visiting her brother’s grave and the tombstone fell onto her hand. Plaintiff filed this negligence suit against defendant, alleging in the complaint that defendant was “negligent in the construction, placement, and maintenance of the gravestone.”

Defendant moved for summary judgment, and the trial court granted the motion. The trial court ruled that there was “not sufficient proof that [defendant] used the wrong adhesive or otherwise improperly installed the gravestone,” and that there were other reasonably probable causes, including that the gravestone could have been run over by lawnmowers or other vehicles. On appeal, summary judgment was partially reversed.

May 5, 2021

Insurance statute did not create private right of action for general contractor

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

The Tennessee Supreme Court recently explained the analysis for whether a statute creates a private right of action.

In Affordable Construction Services, Inc. v. Auto-Owners Insurance Company, No. M2020-01417-SC-R23-CV (Tenn. April 26, 2021), plaintiff was a general contractor who had been hired to repair property owned by a property association that had been damaged by severe weather. When the association and defendant insurance company settled the matter, defendant issued a check payable only to the association. Plaintiff general contractor brought this action in chancery court, asserting that it had a private right of action pursuant to a Tennessee statute. The case was removed to federal court under diversity jurisdiction, and the district court certified three questions to the Tennessee Supreme Court. The only question considered by the Court, because it was dispositive of the case, was whether the statute cited by plaintiff created a private right of action.

Tenn. Code Ann. § 56-7-111 states that “when an insured property owner’s home or other structure sustains more than $1,000 in damages, the property or casualty insurance company shall name the general contractor of an uncompleted construction contract as a payee when issuing payment to the owner for the loss.” The issue here was whether plaintiff general contractor could bring a private right of action against defendant insurance company who failed to include plaintiff as a payee on the insurance proceeds.

March 30, 2021

Case against deceased defendant time-barred.

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

Where the other driver in a car accident case died before suit was filed and the plaintiff failed to “timely file his tort action against the personal representative within the applicable statute of limitations,” summary judgment for the personal representative was affirmed.

In Mott v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021), the plaintiff was in a car accident with another driver on March 22, 2016. Plaintiff filed a civil action in general sessions court against the driver on March 3, 2017, but the driver had died on December 7, 2016. After the plaintiff learned of the driver’s death, he filed a petition on August 30, 2017, to have the defendant appointed as the personal representative of the estate, and the probate division of the chancery court entered an order appointing the defendant on October 31, 2017. Plaintiff filed a “re-issued” civil summons in the sessions court on January 31, 2018, which was served on the defendant as the personal representative. The matter was transferred to the trial court by agreement of the parties, and then in February 2019, the defendant filed a motion for summary judgment based on the statute of limitations. The trial court agreed that the case was time-barred and thus granted summary judgment, which was affirmed on appeal.

February 15, 2021

Personal jurisdiction should be considered before substantive grounds in motion to dismiss.

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

Where a defendant in a Tennessee defamation case moved to dismiss based on both substantive grounds and the assertion that the court lacked personal jurisdiction, the trial court should have considered the personal jurisdiction argument before granting dismissal based on the substantive grounds.

In Checkan v. Southern Towing Company LLC, No. W2020-00636-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2021), the plaintiff filed a defamation case against the defendant drawbridge owner, alleging that a letter sent by the defendant to the plaintiff’s employer containing false information caused him to be fired from his job and made him unable to obtain new employment as a riverboat captain. Defendant filed a motion to dismiss, raising substantive arguments and asserting that the trial court did not have personal jurisdiction over the defendant. The trial court granted dismissal, finding that the allegedly defamatory letter was a prelitigation letter and was accordingly entitled to privilege, but it specifically noted that it was not “ruling on the other procedural bases for dismissal.” On appeal, this ruling was vacated.

In a brief opinion, the Court of Appeals quoted from a federal opinion explaining why a personal jurisdiction argument should be addressed before a failure to state a claim argument:

January 26, 2021

No relation back where car accident plaintiff named wrong driver as defendant.

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

Where a plaintiff originally named the wrong defendant in a car accident case and did not file an amended complaint naming the correct defendant until after the one-year statute of limitations had run, dismissal was affirmed. In Black v. Khel, No. W2020-00228-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2020), plaintiff and defendant were involved in a car accident on May 11, 2018. In March 2019, plaintiff was involved in a separate car accident with a driver named Taylor Antonsen. On May 8, 2019, plaintiff filed a complaint for personal injury damages from the first accident, but she failed to name defendant as a party or refer to defendant in any way. Instead, plaintiff named “Taylor Antonsen” as the opposing party and referred to Antonsen throughout the complaint. One week after filing the complaint, On May 15, 2019, plaintiff realized the mistake and filed an amended complaint naming defendant as the other driver in the accident.

Defendant received a summons for the amended complaint then filed a motion to dismiss, asserting that plaintiff’s case was barred by the one-year statute of limitations. Plaintiff argued that her amended complaint related back to the filing of her original complaint under Rule 15.03, but the trial court rejected that argument and granted defendant’s motion to dismiss. The Court of Appeals affirmed dismissal.

January 14, 2021

Dismissal as discovery sanction affirmed.

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

Where plaintiff failed to comply with an order to supplement his discovery in a car accident case, the Tennesse Court of Appeals affirmed dismissal.

In Gordon v. Chapman, No. W2019-01655-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff and defendant were involved in a car accident on the interstate. Plaintiff filed this negligence suit against the defendant, seeking damages for pain and suffering, and defendant counter-claimed alleging that plaintiff negligently caused the accident.

On April 26, 2019, the trial court held a status hearing wherein it “ordered [plaintiff] to supplement his incomplete discovery responses to [defendant].” The trial court specifically ordered the plaintiff to provide a written description of his claimed injuries and an itemization of his medical bills. On July 10^th, the defendant moved for discovery sanctions against the plaintiff, alleging that plaintiff had produced some medical bills but had not complied with the trial court’s order. At a hearing on July 26^th, the trial court entered an order stating that the plaintiff was to provide his supplemental responses by August 2^nd, and that if he failed to do so the case would be dismissed with prejudice. On August 2^nd, the trial court held a hearing where it heard from both parties, and it dismissed the plaintiff’s case. Plaintiff appealed, arguing that he supplemented his responses on August 8^th, but the Court of Appeals affirmed the dismissal.

January 13, 2021

Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

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

Where the defendant failed to file a post-trial motion, she “waived her right to contest the trial court’s denial of her motion for a directed verdict.”

In Carman v. Kellon, No. M2019-00857-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2020), the plaintiff was seriously injured when she was jogging on the side of a road and was hit by a truck driven by the defendant son. Plaintiff and her husband brought this action against the defendant son/driver for negligence, negligence per se, and recklessness, and against his mother for vicarious liability and negligent entrustment. Though the trial court granted the mother summary judgment on the vicarious liability claim, the negligent entrustment claim proceeded to a jury trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict, which the trial court denied. At the end of the trial, the jury returned a very large verdict against both defendants, finding the son 60% at fault and the mother 40% at fault. Neither the mother nor the son filed any post-trial motions.

December 17, 2020

Unsworn declaration created issue of fact to oppose summary judgment.

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

Where plaintiff filed a declaration in response to defendants’ motion for summary judgment that sought to amend her prior deposition testimony based on her nervousness during the deposition and her refreshed recollection of the incident in question, the Court of Appeals ruled that the declaration should have been considered and that there were thus genuine issues of material fact. Summary judgment for defendants was reversed.

In Lundell v. Hubbs, No. E2019-02168-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2020), plaintiff worked at an elementary school and regularly volunteered as a bus aide. On the day of her injury, plaintiff was “traversing the aisle of the bus” when she alleged that the bus driver “carelessly and recklessly drove over a speed bump at an unsafe rate of speed, causing her to fall and sustain injuries.”

Plaintiff filed this negligence suit against the driver and the owner/bus line, and defendants filed a motion for summary judgment. Plaintiff responded to the motion and attached to her memorandum a “Declaration of Barbara Lundell,” wherein she explained that she was nervous during her initial deposition and had incorrectly identified where the incident took place. The trial court granted summary judgment to defendants, ruling that plaintiff’s declaration should not be considered, that plaintiff had not shown a breach of duty, and that plaintiff was at least 50% at fault because she “was in the best position to protect herself from the common-sense danger of walking in the aisle of a moving school bus.” On appeal, summary judgment was reversed.

December 3, 2020

Tennessee’s Rule 11 Will Require Email Address on Pleadings

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

The Tennessee Rules of Civil Procedure will be changed July 1, 2021 to require the disclosure of the filer’s email address on papers filed in court. The rule change still must be approved by the General Assembly.

UPDATE: The proposed rule change was approved by the General Assembly on March 22, 2021.

Click to access hr0021.pdf