Damages

October 20, 2023

Tort proceeds belonged to decedent’s estate rather than surviving spouse.

After decedent was killed when hit by a vehicle while riding her bicycle, her surviving spouse brought claims against various parties, including a claim against decedent’s insurance provider for negligent misrepresentation and negligent failure to procure insurance. Because these claims were based in tort rather than wrongful death, the Court of Appeals ruled that they accrued to the decedent at the time of her fatal injuries and the settlement proceeds should have been distributed to her estate, not to her surviving spouse.

In Sanders v. Higgins, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023), plaintiff was the surviving spouse of decedent, who was killed when she was hit by a vehicle while riding her bicycle. Plaintiff brought various claims against several defendants, but the one at issue in this appeal was a claim for negligent misrepresentation and negligent failure to procure insurance against decedent’s insurance company. According to plaintiff, the insurer had misrepresented to plaintiff and decedent that an umbrella policy had been reinstated, and plaintiff did not learn until after decedent’s death that the policy reinstatement never occurred.

The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse. The trial court ruled that the settlement proceeds were compensatory damages to plaintiff, “encompassing the amount of coverage [plaintiff] would have received as a result of the Decedent’s death had an umbrella policy been in place.” Decedent’s estate appealed this ruling, arguing that the tort claim proceeds should have been distributed to the estate. On appeal, the trial court was reversed.

January 31, 2023

Jury award to plaintiff affirmed where defendant presented evidence that some damages were not caused by the car accident.

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

Where plaintiff and defendant presented contradicting credible evidence regarding whether all of plaintiff’s claimed injuries were caused by the car accident at issue, the trial court’s denial of plaintiff’s motion for new trial based on her assertion that the jury’s award did not adequately compensate her for her injuries was affirmed.

In Besses v. Killian, No. M2021-01121-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2023), plaintiff and defendant were involved in a car accident when they approached traffic on the interstate that had slowed significantly and defendant rear-ended plaintiff’s car. Both plaintiff and defendant were able to move their cars to the side of the road after the accident, and both drove their cars away and declined medical treatment after the police took a report.

Plaintiff filed a complaint alleging that she sustained injuries including “a bruised right knee, a neck strain, a lower back strain, a concussion, and chronic headaches, including migraines.” Plaintiff sought damages for past and future medical expenses, loss of earnings, pain and suffering, and loss of enjoyment of life. Defendant admitted fault but challenged the damages claimed by plaintiff, asserting that some of the medical expenses and injuries were not caused by the accident. After a two-day jury trial, the jury awarded plaintiff $16,720, which included $12,270 for medical expenses, $3,000 for past pain and suffering, $1,00 for past loss of enjoyment of life, and no award for future pain and suffering or loss of enjoyment of life. Plaintiff filed a motion for new trial, arguing that the jury’s award “did not adequately compensate her for her injuries and was inconsistent with the evidence offered at trial,” but the trial court denied the motion and confirmed the jury verdict. On appeal, this ruling was affirmed.

December 5, 2022

Compensatory damages equal to amount plaintiff paid for home affirmed in fraud case.

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

Where there was material evidence to show that plaintiff met her required due diligence, the jury verdict for plaintiff on her intentional misrepresentation and fraud claim was affirmed. Further, where the fraud was related to the purchase of plaintiff’s home, and the jury awarded plaintiff the amount she paid for the home in compensatory damages, that award was affirmed.

In Hogue v. P&C Investments, Inc., No. M2021-01335-COA-R3-CV, 2022 WL 17175608 (Tenn. Ct. App. Nov. 23, 2022), the issues revolved around plaintiff’s purchase of a home. Although several defendants were named in the suit, the defendant at issue in this appeal was the real estate agent for the LLC that sold the home. He was also the husband of the person who operated the LLC that sold the home, and he “was involved in the process of making improvements and renovations to the property.” While showing the home to plaintiff’s sister and father, defendant was asked about shoe molding that was missing in the basement, and he responded that the owner would be willing to put that in. He also showed the sister and father a new sump pump located in the garage, and he mentioned that a French drain in the back yard was part of what helped take water out of the parking area. According to plaintiff’s sister and father, defendant did not mention anything about the basement flooding. Defendant, on the other hand, testified that he told plaintiff’s sister and father that the house had experienced three water intrusions but that there had been none since the drainage ditch was installed.

May 12, 2022

Calculating Post-Judgment Interest on Tennessee Judgments

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

When calculating post-judgment interest, the statutory rate in effect when the judgment is entered applies for the entire time period between entry of the judgment and its payment.

In Coffey v. Coffey, No. E2021-00433-COA-R3-CV, 2022 WL 1085039 (Tenn. Ct. App. April 11, 2022), plaintiff had won a large judgment against defendant based on breach of fiduciary duty and conversion. Defendant appealed the judgment, but it was affirmed by the Court of Appeals and the Supreme Court denied review. The case then went back to the trial court for calculation of post-judgment interest.

The trial court used the interest rate calculated by the Administrative Office of the Courts based on Tenn. Code Ann. § 47-14-121 for January 13, 2020, the day the judgment was entered. The court applied that rate as the post-judgment interest rate for the entire period at issue, which was January 13, 2020 through April 26, 2021. In this appeal, defendant argued that a different interest rate should have been used for a portion of this time period, as the statutory interest rate fluctuated, but the Court of Appeals rejected this argument and affirmed the trial court’s calculation.

March 9, 2022

Attorney’s fees allowed as compensatory damages in inducement of breach of contract case.

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

Where the evidence clearly established the elements of intent and malice in an inducement of breach of contract case, summary judgment for plaintiff was affirmed. Moreover, the trial court’s ruling that plaintiff could recover attorney’s fees as compensatory damages under the independent tort theory was also affirmed.

In HCTEC Partners, LLC v. Crawford, No. M2020-01373-COA-R3-CV, 2022 WL 554288 (Tenn. Ct. App. Feb. 24, 2022), plaintiff was the former employer of defendant Crawford, who had worked for plaintiff in healthcare information technology recruitment. When Crawford was hired by plaintiff, he signed a “Confidentiality, Non-Competition, and Non-Solicitation Agreement,” which, among other things, provided that he would not work in the same field for 12 months after leaving plaintiff’s employment.

Defendant Rezult made Crawford a job offer while he was still working for plaintiff, which Crawford accepted. Plaintiff communicated to Rezult and Crawford about the Agreement, but Crawford was nonetheless placed in a position that involved healthcare information technology recruiting. Plaintiff thereafter brought this suit asserting breach of contract against Crawford and inducement of breach of contract against Rezult. After entering an injunction, the trial court granted plaintiff’s motion for summary judgment against both defendants, and the Court of Appeals affirmed.

December 14, 2021

Colorado Supreme Court Allows Minors to Recover Pre-Majority Medical Expenses

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

Colorado’s highest court has ruled that in cases involving an unemancipated minor child, either the child or the child’s parents may recover the child’s pre-majority medical expenses Double recovery is not permitted. The case is Rudnicki v. Bianco.

The Tennessee will be holding oral argument soon on a related issue in Borngne ex rel Hyter v. Chattanooga-Hamilton County Hospital Authority.

NOTE: The link to the Borngne case is a link to the status of case provided by my new site, www.birddoglaw.com. BirdDog Law provides multiple free resources to Tennessee lawyers, one of which is “Status of Cases Pending Before the Tennessee Supreme Court.”

August 11, 2021

Collateral source rule barred testimony regarding reasonableness of medical bills.

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

Defendants could not introduce evidence to rebut the presumption that plaintiff’s medical bills were reasonable when that evidence violated the collateral source rule. In Doty v. City of Johnson City, No. E2020-00054-R3-CV (Tenn. Ct. App. July 7, 2021), plaintiff was riding in a car when she was hit by a tractor being driving by an employee of defendant. Defendant admitted liability, so the only issue was the amount of damages.

The accident caused plaintiff to need shoulder surgery (she had previously had two other shoulder surgeries), and she was under a doctor’s care for nine months following the accident.

July 2, 2021

Jury’s decision to not reject some of plaintiff’s medical expenses affirmed.

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

Where there was material evidence to support the jury’s verdict which failed to award plaintiff damages for medical expenses related to his shoulder injury, the verdict was affirmed. In Almuawi v. Gregory, No. M2020-01018-COA-R3-CV (Tenn. Ct. App. June 2, 2021), plaintiff and defendant were involved in a car accident when plaintiff was rear-ended by defendant. Defendant admitted liability, so the only issue at trial was the amount of damages to be awarded to plaintiff. Plaintiff’s complaint sought $200,000, including $27,870.21 in medical expenses, $539 for replacement of his eye glasses, and the remainder for “past pain and suffering and his loss of the ability to enjoy life.”

After a two-day jury trial, the jury returned a verdict awarding plaintiff a total of $13,796.21, which included $8,257.21 in medical expenses, $539 for eye glasses, and $5,000 in noneconomic damages. Notably, the jury award did not include over $15,000 in expenses plaintiff incurred while being treated by a chiropractor for a labral tear to his right shoulder. Plaintiff filed a motion for a new trial or, in the alternative, for additur, which the trial court denied. On appeal, the jury’s verdict and the denial of the motion for a new trial was affirmed by the Court of Appeals.

When the Court of Appeals is reviewing a jury verdict, it is “required to take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allowing all reasonable inferences to sustain the verdict, and to discard all countervailing evidence,” approving the verdict if “there is any material evidence to support the award.” (internal citations omitted). The issue here was whether the jury properly excluded damages for costs related to plaintiff’s shoulder injury, an injury for which defendant denied responsibility. The evidence at trial showed that the accident occurred on March 8, 2017, and that plaintiff did not complain of shoulder pain until almost a month later on April 5th. On the day of the accident, plaintiff’s medical records showed that he “complained of pain in his left knee, neck/back, and the left side of his face.” The next day, he mentioned pain in his “neck, mid-back, and left knee.” One week after the accident, he visited his doctor and complained of “low back pain, neck pain, and left knee pain.” The first mention of shoulder pain was a note from a physical therapist on April 5th, but at a doctor’s appointment two days later plaintiff did not complain of shoulder pain.

June 14, 2021

Noneconomic damages cap applied to injured plaintiff and loss of consortium plaintiff jointly.

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

When an injured plaintiff’s spouse asserts a loss of consortium claim, the noneconomic damages cap found in Tenn. Code Ann. § 29-39-102 “allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages.” In Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021), plaintiffs filed an HCLA claim after plaintiff wife’s surgeon left a medical device in her abdominal cavity while removing her kidney, causing her pain and chronic inflammation until the device was discovered during an unrelated procedure eight years later. The jury had awarded plaintiff wife $4,000,000 in pain and suffering and loss of enjoyment of life damages, and awarded $500,000 in damages to plaintiff husband for loss of consortium. The trial court originally ruled that the damages in total would be reduced to $750,000 pursuant to the damages cap, but then amended the ruling and held that the cap should be applied to each plaintiff separately, meaning that the wife would receive $750,000 and husband would receive $500,000. The Court of Appeals affirmed this application of the damages cap.

During this appeal to the Supreme Court, the facts of the case were not at issue. The only issue here was how Tennessee’s cap on noneconomic damages should be applied when the injured plaintiff is seeking noneconomic damages and his or her spouse is also pursuing a loss of consortium claim (but not a claim for personal injuries).

October 12, 2020

Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

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

When an HCLA plaintiff was awarded a verdict for her health care liability claims and her husband was awarded damages for loss of consortium, the trial court correctly considered the plaintiffs separately for the purpose of applying the statutory cap on noneconomic damages. FIRST PUBLISHED IN JUNE 2020. SEE UPDATE BELOW.

In Yebuah v. Center for Urological Treatment, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff had surgery to remove a cancerous kidney in 2005. A CT scan was done four months after surgery, and the radiologist reported no signs of cancer. The radiology report on a subsequent CT scan noted a “tubular structure” within plaintiff’s abdominal cavity, but plaintiff’s treating physician “did not read the reference to the foreign object.” Seven years later, plaintiff required gallbladder surgery due to severe abdominal pain. During that surgery, it was discovered that a “part of a gelport device” had been left inside plaintiff during her 2005 kidney surgery. Plaintiff required another surgery to have the device removed.