Day on Torts

November 1, 2013

Widow Loses Right to Wrongful Death Proceeds Because of Tennessee Postnuptial Agreement

Under Tennessee wrongful death law, the distribution of proceeds obtained after a settlement for wrongful death are governed by common law not statute. Basically, the law provides that the wrongful death proceeds are distributed under the law of intestate succession.

Thus, if a decedent left behind a surviving spouse and one child, each would receive one-half of the proceeds. If the wrongful death decedent left behind a surviving spouse and two children, each of them would receive one-third of the wrongful death proceeds. A surviving spouse would never receive less than a one-third share of the recovery, even if there were three or more surviving children.

A recent case from the Tennessee Court of Appeals faced a question never addressed before in Tennessee: what happens to wrongful death proceeds when the surviving spouse entered into a postnuptial agreement agreeing to waive all rights which she acquired as a result of her marriage to the defendant?

October 16, 2013

Medical Malpractice Insurer Opposes Georgia Tort Reform Plan

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

No, you did not read the headline wrong. The company that insures doctors for medical malpractice claims in Georgia is opposing a tort reform measure being pushed by a group of healthcare administrators.

What is going on? A group of healthcare administrators in Georgia has formed an organization called "Patients for Fair Compensation" (has a nice ring to it, doesn’t it?) that is seeking a new law which would move medical malpractice claims out of the courts and into an administrative system overseen by a "Patient Compensation Board" within the Department of Community Health.

Those supporting the legislation say that the new system, which would be similar to the way Georgia worker’s compensation claims are processed, would reduce healthcare costs. In essence, the proposed legislation would create a no-fault system for awarding limited compensation for victims of medical malpractice. It would be funded by fees that would be paid by doctors and by hospitals.

October 14, 2013

Attorneys’ Dispute Over Case Expenses Will Force Maryland Attorney to Defend Case in Tennessee

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

A dispute between a Tennessee plaintiffs’ firm and a Maryland plaintiffs’ firm over responsibility for litigation expenses will be resolved in Tennessee, says the Tennessee Court of Appeals.

The Wolff Ardis firm in Memphis and the Law Offices of Jonathan Dailey in Washington, D.C. teamed up together to work on a auto glass product liability case in Maryland. They had a written agreement on the division of case expenses; the agreement was governed by the law of Virginia. There was a defense verdict in the case, and Wollf Ardis billed Dailey for $48,63.45 it claimed it was owned under the agreement. Wolff Ardis filed suit against Dailey in Memphis, and Dailey contested the jurisdiction of the Tennessee courts.

The Court of Appeals held that Dailey could be sued in Tennessee. Applying the recent opinion of specific personal jurisdiction set forth in State v. NV Sumatra Tobacco Training Co., 403 S.W.3d 726 (Tenn. 2013), the court noted that a two-part test must be applied in determining whether Dailey could be sued in Tennessee: (1) are minimum contacts present (a fact fathering exercise) and (2) if minimum contacts exist, is the exercise of jurisdiction unreasonable or unfair.

October 13, 2013

Where Have You Been, John?

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

I know – I have gone off the grid. For the past couple of months I have been extremely busy and my law practice has simply consumed the vast majority of my time. I have also worked on an article that I was asked to write for the inaugural edition of Belmont University Law Review and also the 2013 edition of my most recent book, Compendium of Tennessee Tort Reform Statutes and Related Case Law, 2008-2013. (This book will be available October 20, 2013.) I have also been preparing for my presentations at the 10th annual Tennessee Justice Programs seminar series.

Well, I’m back. Look for several posts every week about tort law in Tennessee and around the nation. Your comments are always welcome.

August 29, 2013

Limited Duty Imposed on People Who Send Text Messages to Those Driving Cars and other Vehicles

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

The sender of a text message to a person faces potential liability if the recipient of the message negligently causes a wreck injuring others, according to a recent opinion of the Appellate Division of the Superior Court of New Jersey.

In Kubert v. Best, A-1128-12T4 (N.J. Sup. Ct. App. Div. Aug. 27, 2013), the Kurberts were seriously injured when a young drivers who was texting while driving crossed the center-line of the road and hit them. Their case against the young driver was settled, but the Kuberts appealed a decision of the trial court that dismissed their claims against the young driver’s friend who was texting the driver much of the day and sent a text message to him immediately before the accident. Texting while driving is illegal in New Jersey.

No other appellate court has addressed this issue: whether one who is texting from a location remote from the driver of an automobile can be liable to persons injured because the driver was distracted by the text. The court answered the question "yes," but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted." The court issued a 30-page opinion on the issue, which employs duty analysis to arrive at the conclusion that a duty should be imposed on the sender. To reach its result, the majority of the court discusses the duty of a passenger in a vehicle at great length.

August 22, 2013

Can A Police Officer Sue a 9-1-1 Caller For Failure to Warn of Danger of Assault?

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

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation. The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen’s" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee’s leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

August 16, 2013

Can You Strike Potential Jurors Because of Their Sexual Orientation?

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

The law gives parties the right to strike a limited number prospective jurors from serving on a particular jury without demonstrating "cause, but that right is limited by case law designed to prohibit discrimination. Should a party’s right to peremptorily challenge a juror because of his or her sexual orientation be added to the list?

The issue will be addressed in the Ninth Circuit Court of Appeals in the case of Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued in September 2013. The issue arose in an antitrust case involving HIV medications. A lawyer for one of the companies sought to strike a juror because the would-be juror was “or appears to be, could be, homosexual.”

This blog post from Verdict has a nice summary of the issue. Here is link to all of the briefs in the Smithkline Beecham Corp. v. Abbott Laboratories case.

August 6, 2013

Thoughts About A Doctor Paying A Judgment in Quarters

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

Dr. Roger Herrin, upset that he had to share money with those who were injured in a car wreck that also took his son’s life, paid the $500,000 he owed in quarters. 7,500 hundred pounds of quarters. Why quarters? "Because I couldn’t do it in pennies," Herrin reportedly said.

There has been lots of press about this event, but none of it gave me a clear picture of the legal dispute that gave rise to Herrin acting in such a fashion. Here is what my research revealed:

In what all would agree was a tragic event, Herrin’s 15-year old son was killed and three other people were injured in an intersection wreck in 2001. The at-fault driver had $100,000 in applicable liability insurance limits; this sum was paid into court. No agreement could be reached on how to divide the $100,000, so the trial judge decided the value of each individual case and divided the money pro rata. The Herrin death case was given the greatest value – a little over $10,000,000, just over 90% of the total damages the judge found to be present (almost $11,000,000 for all plaintiffs.)

July 30, 2013

A Referral Service (And Others) Gets Sued By State Farm – Allegations of Improper Referrals to Plaintiffs’ Law Firms (And More)

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

State Farm, a leading auto insurer, has sued a referral service, chiropractic firm and others alleging, inter alia, that they engaged in a fraudulent scheme of referrals to and from a plaintiff’s firm that resulted in monetary loss to State Farm via it medical payments and personal injury protection (PIP) coverage.

Here is a summary of the action as set forth in the federal court complaint:

This action involves a massive fraud scheme by the Defendants to obtain from State Farm Personal Injury Protection (“PIP Benefits”) and Medical Payments Coverage (“MPC Benefits”) insurance benefits (collectively, PIP Benefits and MPC Benefits are referred to as “No-Fault Benefits”) for services and treatments purportedly rendered to patients at Physicians Group clinics in Florida, which are owned by Kompothecras [a chiropractor]. The services and treatments were not lawful when they were rendered because the Defendants intentionally violated several important criminal, civil and administrative laws to lure unwitting motor vehicle accident victims to receive the services and treatments at the Physicians Group clinics, namely the Patient Brokering Act (Fla. Stat. § 817.505), the Patient Self-Referral Act of 1992 (Fla. Stat. § 456.053), the Anti-Kickback Statute (Fla. Stat. § 456.054), the Deceptive and Unfair Trade Practices Act (Fla. Stat. § 501.201 et seq.) (“FDUTPA”), the laws establishing grounds for disciplinary action against chiropractors who engage in false and misleading advertising (Fla. Stat. § 460.413(d), (f) and (l)), and administrative rules prohibiting chiropractors from engaging in deceptive and misleading advertising (F.A.C. Rule 64B2-15.001(2)(a), (b) and (k)). The driving force behind the Defendants’ scheme is to exhaust their unsuspecting patients’ limited No-Fault Benefits, without regard to whether the patients may have health insurance that might otherwise cover some or all of Physicians Group’s charges, thereby preserving their No-Fault Benefits for other medical services that the patients may truly need.

July 29, 2013

Tennessee Products Liability Statute of Repose Applied to Bar Claim

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

Tennessee has a ten-year statute of repose that bars most products liability claims ten years after the product at issue was sold to the first user or consumer. Unlike a statute of limitation, a statute of repose can bar a claim even before plaintiff was injured.

The United States Court of Appeals for the Sixth Circuit recently applied the ten year statute of repose to bar a claim arising in Tennessee for losses caused by a defect in a car owned by a Tennessee consumer. It was undisputed that the car had been sold to the first user or consumer more than ten years before the incident giving rise to the claim. However, the plaintiff’s lawyers sought to avoid the statute of repose by filing suit against the manufacturer of the car in Michigan, the home state of the manufacturer of the vehicle.

In Standard Fire Ins. Co. v. Ford Motor Co., No. 12-1583 (6th Cir. July 24, 2013), the court held that the claim was governed by Tennessee law and that the Tennessee statute of repose barred the claim. The opinion undertakes an extensive review of Michigan’s conflict of law principles in tort claims.