Day on Torts

June 3, 2014

Can The Owner of LLC Also Be A Defendant in a Tort Action Against the LLC?

The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

May 30, 2014

Spoliation of Evidence in Tennessee: Intent v. Prejudice

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

What is it with drillers and spoliation of evidence cases? First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject. And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc. So, let’s drill down on this issue a bit, shall we?

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire. On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling. During the refueling, Burress walked away to converse with some of the Griffith Drilling employees. Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited. When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off. The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle. Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle.

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire. One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage. Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site. Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim. The trial court granted both motions. Griffith Drilling appealed alleging the trial court erred by granting both motions.

May 29, 2014

Negligent Failure to Have a Nightlight? Nope

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

The Tennessee Court of Appeals recently affirmed the dismissal of plaintiff’s premises case in Smith v. Stanley, No. E2013-00886-COA-R3-CV (Tenn. Ct. App. May 12, 2014).

Plaintiff visited a cabin with her sister and cousin. The cabin was owned by defendants, who are plaintiff’s aunt and uncle. Plaintiff was the first to enter the cabin after her cousin opened and held the door open for her. It was nighttime, and the inside of the cabin was completely black. There were light switches inside the cabin beside the entry way, but plaintiff did not turn them on. Plaintiff took at least one step and probably several more before she fell backwards down a staircase. She was knocked unconscious from the fall and suffered multiple injuries.

The trial court granted summary judgment after finding that defendants did not owe plaintiff any duty. Relying on the Tennessee Supreme Court case of Eaton v. McLain, 891 SW.2d 587 (Tenn. 1994), the trial court ruled that it was not reasonably foreseeable that plaintiff would enter an unfamiliar area in the dark without turning on any lights.

May 28, 2014

No Special Requirements for Pre-Suit Notice on the State of Tennessee In Medical Malpractices Cases

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

In Tennessee, before a party may file a lawsuit against a healthcare provider for medical malpractice, the party must give 60 days’ pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a). In Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014), the State of Tennessee was granted permission to pursue an interlocutory appeal when it argued that it was not provided with effective pre-suit notice of a claim for medical malpractice arising out of the death of a child during delivery at a state-run hospital. The claims commissioner disagreed with the state’s position and denied the state’s motion to dismiss. On appeal, the Court of Appeals upheld the decision of the claims commissioner finding there was no special requirements for pre-suit notice to the state.

The state argued that in order for pre-suit notice to be effective against it, the notice must be sent to (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. Section 121 provides that the notice must be given “[t]o a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider’s current business address, if different from that of the agent for service of process.” The state argued that its agent for service of process is the attorney general or any assistant attorney general relying on Rule 4.04(6) of the Tennessee Rules of Civil Procedure as authority, which applies to service of the summons and complaint in a lawsuit. However, the court noted that Rule 4.04, by its own terms, applies only to service of lawsuits, not pre-suit notice. The state also argued that because claims against the state must be filed in the Division of Claims Administration, the Division of Claims Administration is an alternate agent for service. However, the court notes that the regulations pertaining to filings with the Division of Claims Administration apply to claims and not pre-suit notice. Also, importantly, the court reminds us that actual notice is the goal, so where this is actual notice, the defendant should not be permitted to complain. There was no dispute that the state had actual notice of this case.

The court also held that to the extent the notice was deficient, the plaintiffs demonstrated “extraordinary cause” under Tenn. Code Ann. § 29-26-121(c), which allows the court to excuse relatively minor technical flaws.

May 27, 2014

Failure to Read a Motion is Not Excusable Neglect under Tennessee Law

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

Rule 60.02(1) of the Tennessee Rules of Civil Procedure allows the court to relieve a party from a final judgment or order on grounds of “mistake, inadvertence, surprise or excusable neglect.” This is the rule that the plaintiffs attempted to rely on to set aside an order dismissing their case in Brown v. Juarez, No. E2013-00979-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).

In Brown, after about three years of inactivity in the case, the defendants filed a motion to dismiss the case for failure to prosecute. The motion included a notice of hearing and a statement that the motion would be granted if there was no response. Plaintiffs’ counsel received the motion but failed to file a response and did not appear at the hearing. Plaintiffs’ counsel argued that the notice was crafted to conceal the hearing date. The court was not persuaded by that argument. Nor was the court persuaded by the argument that the plaintiffs’ failure to appear and to respond was due to “mistake, inadvertence, surprise or excusable neglect.”

The court noted that an absence of willfulness does not equate to neglect that is excusable. So, while the court found that plaintiffs’ counsel did not willfully fail to appear or respond to the motion, the court found that the neglect was not excusable because had plaintiffs’ counsel read the entire motion, he would have noticed the hearing date. Thus, the court concluded that the plaintiffs failed to prove entitlement to relief under Rule 60.02 and upheld the dismissal.

May 23, 2014

Failure to Timely Appeal Results in Dismissal

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

In Wright v. Dunlap, No. M2014-00238-COA-R3-CV (Tenn. Ct. App. April 30, 2014), a jury rendered a defense verdict in plaintiff’s car crash case. The trial court entered a judgment dismissing the case, and then Plaintiff’s case was dismissed on appeal because of her failure to take appropriate action within 30 days following entry of the trial court’s judgment.

After the entry of an adverse final judgment, Tennessee law requires that a notice of appeal be filed within 30 days from the entry of the judgment. However, there are various motions a party can file with the trial court that will extend the deadline to file the notice of appeal as long as the motions are filed within 30 days of the judgment. These motions are listed in Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01. Once the trial court rules on the motion, the party then has 30 days from the entry of the order on the motion to file the notice of appeal.

The trial court’s judgment was entered on October 11, 2013. Plaintiff’s Rule 59 motion to alter or amend was filed more than thirty days later on November 15, 2013. Plaintiff argued on appeal that the Rule 59 motion was timely because a duplicate judgment virtually identical to the October 11, 2013 judgment was entered on October 22, 2013. However, the appellate court disagreed. Tennessee case law holds that where two substantially identical judgments are entered, the time for filing a notice of appeal or Rule 59 motion begins to run upon entry of the first judgment. Ball v. McDowell, 288 S.W.3d 833, 838 (Tenn. 2009). The later entry of a virtually identical judgment that doesn’t affect the parties’ substantive rights or obligations resolved by the first judgment does not extend the time for filing a Rule 59 motion or notice of appeal.

May 22, 2014

Article on Countering Adverse Authority

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

Each one of us has, from time to time, picked up a brief written by an opponent and felt a sharp pain in the chest – our opponent has landed what seems to be a mortal blow.

This article – "The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority" – explains what to next. It is excellent.

May 21, 2014

Tennessee Certificate of Good Faith Statute – Extension of Time To File Amended Certificate Granted

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

The Tennessee Court of Appeals has affirmed a trial court’s decision to grant an extension to file certificate of good faith in a medical malpractice case, finding “good cause” based on parties’ confusion on Tennessee case law.

In Stovall v. UHS of Lakeside, LLC , No. W2013-01504-COA-R9-CV (Tenn. Ct. App. April 22, 2014), the Tennessee Court of Appeals rejected defendant medical providers’ attempts to dismiss plaintiff’s medical malpractice suit for failure to strictly comply with the certificate of good faith requirements set forth in Tennessee’s health care liability act.

In December 2010, Mrs. Stovall filed a medical malpractice suit against defendants for allegedly causing the death of her husband. A certificate of good faith was filed with the complaint, as required by Tenn. Code. Ann. §29-26-122(d)(4). That statute states that “the certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Here, however, the certificate attached to the complaint did not assert that Mrs. Stovall’s counsel had no prior violations of the good faith certificate statute.

May 21, 2014

Delaware Court Reminds Tennessee Lawyers That Causation Must be Established in Cancer Malpractice Cases

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

Our office is fortunate to be sought out in a large number of Tennessee medical malpractice cases involving cancer. Most of the cases involve a delay in the diagnosis of cancer, that is, that the patient presented with certain symptoms or physical findings that should have triggered a diagnosis of cancer earlier than the cancer was actually diagnosed.

Our internal review of these cases often cause us to conclude that the health care provider failed to properly and / or promptly respond the the patient’s complaints, condition and symptoms. Where we often get hung up, however, is what lawyers causally call the "so what?" question. In other words, even if we can establish that an error was made, how did the delay in diagnosis (and the start of treatment) harm the patient?

We know, or at least think we know, that prompt treatment is good and delayed treatment is bad. Prompt treatment cannot start without prompt diagnosis. Thus, the thought goes, a delay in diagnosis always harms the patient because treatment was by definition delayed.

May 15, 2014

Tolling of Statute of Limitations Not Lost by Failure to Comply with Return of Process Rule

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

Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas, the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).

Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.

Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation “unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.”