Miscellaneous

December 11, 2006

What Happens When a Plaintiff Fails to Disclosure a Personal Injury Claim on Her Bankruptcy Petition?

In Pruitt v. Hancock Medical Center, NO. 2005-CA-00132-SCT (Miss. S. Ct. 11/16/06), Plaintiff had a personal injury claim that was not disclosed in a bankruptcy filing. The injury occurred before the bankruptcy petition was filed. She received a discharge of her debts in her Chapter 7 proceeding, and then took action in state court to seek damages from the alleged tortfeasor for the injury. Her claim was dismissed for lack of standing, and the Supreme Court of Mississippi affirmed.

The Court said as follows: "This Court concludes that the Pruitts’ cause of action accrued prior to the filing of the Pruitts’ voluntary petition for Chapter 7 bankruptcy on August 21, 2002. As this Court finds that the cause of action existed at the time of filing the bankruptcy petition, the cause of action became property of the bankruptcy estate under 11 U.S.C. § 541(a)(1). ‘If a cause of action belongs to the [bankruptcy] estate, then the trustee has exclusive standing to assert the claim.’" [Citation omitted.]

Read it here.

December 8, 2006

Rules Changes Are Designed to Make Them Easier to Read

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

The Federal Rules of Civil Procedure are being changed to make them more readable. This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here. The rules are still in the rule-making process and will not go into effect before December 1, 2007.

December 1, 2006

Blue Chipper Format

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

Several times in the last few months I have posted blue-chippers in a new format. (For those of you who do not know what a blue-chipper is read this post). Examples can be found here, here, and here.

My question to you is this: do you like this format? Is it helpful to you? What changes do you recommend? Obviously, it takes a good deal of work to put one of these posts together and I could save some time using an abbreviated format as I have done in the past if readers do not find the additional information helpful.

Please let me know your thoughts, via either a Comment or a private email to jday@branhamday.com.

November 30, 2006

Court to Plaintiff: Go Puck Yourself

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

The South Carolina Supreme Court has ruled that a spectator at a hockey game may not sue when he is hit in the face by a puck, and cited Tennessee law in reaching its conclusion.

The South Carolina Court said: "Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998) (emphasis in original).[1] The Davenport Court further explained the doctrine as follows:

Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff. . . .[T]he Tennessee Supreme Court summarized the doctrine in the following way:

November 29, 2006

Justice Programs

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

Ok, this is your last Justice Programs seminar post of the year.

This week (Thursday and Friday) we are in Nashville and are almost sold out. We have a few spots left at chairs with tables and then we will have to put attendees in chairs without tables. We booked a room that would allow us to increase the number of attendees by over 100% over the number we had last year but have still run out of room.

Next week (December 7 and 8) we conclude the seminars with our program in Memphis. We are expecting another record crowd there.

November 29, 2006

Op-Ed Piece

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

I enjoyed Cyrus Dugger’s op-ed piece from The West Virginia Record and thought you would, too.

An excerpt from "Sue as I say, not as I sue:"

"It is striking, however, how quickly those who advocate for tort "reform" are willing to change their tune. While they publicly "speak out" about how too many lawsuits are ruining a state’s economy, or how lawsuits are somehow innately "bad," when they or somebody they love is injured, all of this public rhetoric goes out the window and they go straight to court. In short, these people are tort "reform" hypocrites. "

November 23, 2006

Tort Law – A Break for Turkey Day

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

I will not be blogging for a few days. I am taking today off for Thanksgiving and tomorrow morning I am off to Mexico where I will be speaking at a seminar on tort law to some Tennessee lawyers who also have an interest in diving. I will be speaking on Saturday and Sunday (three hours per day) and spending the rest of the time relaxing in Cozumel.

I hope you and your family have a wonderful holiday.

November 17, 2006

Election to the ALI

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

I am pleased to announce that I have been elected to membership in the American Law Institute. The ALI is the organization that creates the Restatements of the various areas of the law and participated in the creation of the Uniform Commerical Code, the Model Penal Code, and numerous other codifications and studies.

In particular, I hope to be able to make a contribution to a current ALI project, "Restatement of the Law Third: Liability for Physical Harm," and other tort projects over the years.

Thank you to Knoxville lawyer and mediator-extraordinare Howard Vogel for nominating me for this position, and to United States Court of Appeals Judge Cissy Daughtrey, Tennessee Chief Justice William Barker, Tampa attorney Bill Wagner, and Memphis attorney Lucian Pera for writing letters to ALI on my behalf.

November 15, 2006

Illinois Supreme Court Justice Wins Libel Verdict

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

Read the story here in the Chicago Tribune.

November 14, 2006

Minor Can Recover Medical Expenses

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

The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another. Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL 586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.