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March 26, 2020

Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator. Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website) “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019). The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.

March 23, 2020

Investigation into Self-Driving Car Crash in Florida

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

The federal government has finished its investigation into a 2019 car crash involving a Tesla on autopilot.

The report, by the National Transportation and Safety Board, reaches the following conclusions:

the design of the Autopilot system contributed to the crash because it allowed the Tesla driver to avoid paying attention

February 26, 2020

Day on Torts Nugget: Tennessee Medical Malpractice Filings and Trials

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

Data has been released that shows the number of Tennessee medical malpractice (now called health care liability actions) filed and disposed of for the year ending June 30, 2019.

A total of 422 claims were filed in our state courts in FY 2019, about the same as the previous year (416). The courts disposed of 385 cases in FY 2019, compared with 382 the previous year.

Only 27 of the cases went to trial in FY 2019, 17 of which were tried to a jury and 10 of which were non-jury trials. In FY 2018 there were 18 total trials, 13 of which were jury trials and 5 of which were non-jury trials.

February 14, 2020

Footnote Points Out Issue With Amending Pleadings

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

Rule 15 of the Tennessee Rules of Civil Procedure allows complaints and answers to be amended under the conditions set forth in the rule, but amendments do not make the statements in the original pleading disappear.

In Lanier v. Bane, No. M2000-03199-COA-R3CV, 2004 WL 1268956, at *2 (Tenn. Ct. App. June 8, 2004), Lanier pleaded that his host driver was drunk and caused a one-car accident, resulting in the death of Bane and injuries to Lanier. In his amended complaint, Lanier materially changed those allegations and said his host driver was not drunk. Bane’s estate defended by asserting that Lanier was partially at fault by voluntarily becoming a passenger in a vehicle driven by one he knew to be intoxicated.

In Footnote 1 of the Court of Appeals opinion affirming a 50% finding of fault on Lanier for contributing to his own injuries, the court noted as follows: “How Mr. Lanier came to “un-know” in his amended complaint that which he knew well in the original complaint about his host driver’s intoxication makes for interesting reading.”

February 13, 2020

Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

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

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit in state to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

February 10, 2020

Day on Torts Nugget: Be Careful When Suing the State of Tennessee.

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

Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission. One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1] plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle. When the claim was not settled, he timely filed a formal complaint with the Claims Commission. The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court. As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

February 5, 2020

Day on Torts Nugget – 2019 Tennessee Trial Data Part 1

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

The number of trials in Tennessee state court continued to decline in 2019, although jury trials in Circuit Court ticked up slightly.

What follows is the number of jury and non-jury trials in Tennessee state courts for the indicated fiscal years (July 1 – June 30):

Year Chancery Non-Jury Chancery Jury Circuit Non-Jury Circuit Jury Total

January 22, 2020

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

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

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

January 19, 2020

Thoughts About the Interaction Between Subrogation and Comparative Fault

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

Those of you who are interested in the interaction between the law of comparative fault and the law of subrogation (or at least my view on how the two should interact) may wish to read “Made-Whole Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions” published in the Belmont Law Review.

Likewise, if you are having difficulty getting to sleep, you may wish to read the same article.

January 17, 2020

Tennessee Court Adopts Revisions to Civil Procedure Rules

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

The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.