Day on TortsMy newest article, “Gender-Affirming Care Creates Tort Liability,” as published in the Tennessee Bar Journal.
Articles Posted in Miscellaneous
ACTL Podcast
One thing you can do to become a great trial lawyer is to listen to great trial lawyers speak about the profession.
The American College of Trial Lawyers has a podcast that does just that. The podcast will be starting its sixth season this summer, but there are over 20 podcasts of great trial lawyers already available.
The most recent podcast interviewed Tennessee’s own J. Houston Gordon.
Funeral home had no duty to supervise burial of body.
Where plaintiff alleged that her son’s body was buried in the wrong place within a cemetery and brought several claims, including negligent mishandling of a dead human body, against defendant funeral home, summary judgment for the funeral home was affirmed based on the finding that the funeral home “had no common law duty to direct or supervise the burial and disposition” of the body and that the funeral home “conformed to the reasonable person standard of care under all of the circumstances.”
In Mathes v. N.J. Ford and Sons Funeral Home, Inc., No. W2021-00368-COA-R3-CV, 2023 WL 117729 (Tenn. Ct. App. Jan. 6, 2023), plaintiff asserted claims for mishandling of her dead son’s body. Plaintiff had purchased an interment plot from the cemetery prior to her son’s passing and had executed certain documents related to that purchase. One such document provided that “all interments and disinterments…shall be made only by [the Cemetery] unless otherwise approved by cemetery company.” The cemetery and funeral home were not related to each other in any way.
After the son’s death, plaintiff contracted with defendant funeral home to handle the funeral and body preparation. Plaintiff also signed an additional authorization with the cemetery and went to view the pre-selected plot at the cemetery.
Great Podcast
I strongly encourage you to add “Trial Tested” to your list of podcasts.
“Trial Tested” is a podcast sponsored by the American College of Trial Lawyers. It “presents enlightening discussions about life and law through interviews with prominent trial lawyers and significant figures in the world of trial law.” The interviewees are accomplished trial lawyers (with a couple of non-lawyers thrown in for good measure) interviewed by one of three College Fellows – Amy Gunn, Mike Herring, or Dave Paul.
Click here to see a list of the podcasts offered to date. Tennessee’s own Mike Cody is interviewed for today’s podcast.
Cases Pending Before the Tennessee Supreme Court – 2022 Wrap-Up
As 2022 comes to a close, here is a brief summary of the cases pending before the Tennessee Supreme Court.
There are twenty civil cases pending before the Court. The “oldest” pending cases (calculated from the date of oral argument) are Gardner and Ultsch – both cases were argued April 6, 2022. Review of the Mathes case was just accepted December 15. Click here for a full list of pending civil cases, the subject matter involved, and their status.
There are ten criminal cases pending before the Court. The “oldest” pending cases (once again calculated from the date of oral argument) are Forest and Lyons – both cases were argued April 6, 2022. Review of the Dotson case was granted October 25. Click here for a full list of pending civil cases, the subject matter involved, and their status.
Appeal under Tennessee Public Protection Act ruled untimely.
When appealing a trial court’s order dismissing or refusing to dismiss a case under the Tennessee Public Protection Act (TPPA), the appeal “must be filed within thirty days of the entry of that order.”
In Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150 (Tenn. Ct. App. Oct. 25, 2022), plaintiff filed multiple tort claims against multiple defendants, including libel claims against certain defendants based on their social media statements related to the death of a dog who died while in the care of plaintiff’s dog training business. The libel defendants filed motions to dismiss pursuant to the TPPA, which the trial court granted on December 10, 2020. The trial court also found that “the TPPA requires an award of attorney’s fees when an action is dismissed under that chapter” and it asked the prevailing parties’ attorneys to submit fee affidavits within fifteen days of the entry of the dismissal order. The trial court then entered an order awarding some attorneys’ fees on March 5, 2021, then due to some late filing, entered another order regarding attorneys’ fees on June 24, 2021. Plaintiff appealed the TPPA dismissal from that June 24th order.
Calculating Post-Judgment Interest on Tennessee Judgments
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.
New Decision Discussing Alter Ego-Law in Tennessee
A new decision of the Tennessee Court of Appeals, Southern Steel & Concrete, Inc. v. Southern Steel & Construction, Inc., No. W2020-00475-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2022), summarizes Tennessee’s law on alter ego issues.
Here is some key language from the opinion (all of the language in bold is quoted from the opinion):
In Oceanics Schools, Inc. v. Barbour, 112 S.W.3d 135, 145 (Tenn. Ct. App. 2003),this Court provided a “blueprint of factors” to be considered when addressing an alter ego issue. Boles v. Nat’l Dev. Co. Inc., 175 S.W.3d 226, 245 (Tenn. Ct. App. 2005). We explained that blueprint as follows:
No reasonable reliance on alleged misrepresentation where plaintiff could have read the contract which contradicted defendant’s statement.
Where plaintiff gave her husband permission to sign her name to an indemnity agreement in conjunction with obtaining insurance bonds, and plaintiff’s husband had the opportunity to read the indemnity agreement and discover its contents, summary judgment on plaintiff’s negligent misrepresentation claim against the insurance agent who allegedly stated that the indemnity agreement did not include plaintiff’s personal property was affirmed.
In King v. Bradley, No. E2021-00261-COA-R3-CV, 2022 WL 678568 (Tenn. Ct. App. Mar. 8, 2022), plaintiff’s husband and step-son owned a commercial electrical contracting business. In conjunction with a work project, the business was required to obtain performance and payment bonds. Defendant was the insurance agent who assisted in obtaining these bonds, and in conjunction with getting the bonds, plaintiff, plaintiff’s husband, plaintiff’s step-son, and the business were required to sign an indemnity agreement. Plaintiff was not present when the indemnity agreement was to be signed, but she gave her husband verbal permission over the phone to sign her name. According to plaintiff, she told her husband that she did not care what he signed her name to “as long as we’re not putting up our personal stuff.” Plaintiff asserted that defendant was asked whether any personal property, as opposed to business property, was covered by the indemnity agreement, to which he responded that it was not. Plaintiff’s husband signed the indemnity agreement without reading it or having an attorney review it.
Previous rejection of uninsured motorist coverage remained in affect after policy renewal.
Where a company had properly rejected uninsured motorist coverage for its fleet of vehicles in 2002, and the company submitted standard information for its 2011 policy renewal, the 2002 rejection remained in effect and uninsured motorist coverage was not part of the company’s automobile insurance policy.
In Hughes v. The Liberty Mutual Fire Insurance Company, No. E2020-00225-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2021), plaintiff was the driver of a vehicle owned by a large healthcare company (HMA). Plaintiff was in an accident while driving an HMA vehicle, and he filed a personal injury suit and gave HMA’s insurer, defendant Liberty Mutual, notice of a potential uninsured motorist claim.