Last week, the Tennessee Supreme Court agreed to hear two new cases.
One is a tort case. Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 addresses the torts of malicious prosecution and civil conspiracy.
The other, City of Knoxville, Tennessee v. Netflix, Inc., addresses the the right to regulate Netflix and Hulu (and similar concerns) by local governments. The Court accepted certification of a question of state law from the United States District Court in Knoxville.
BirdDog Law, the new leading resource center for Tennessee trial lawyer s and judges, now has free access to a user-friendly version of the Tennessee Rules of Criminal Procedure. Access the rules from your desktop, notebook, tablet or cell phone 24/7 anywhere you have access to the internet.
BirdDog Law is designed to help trial lawyers have ready, 24/7 access to materials they use everyday. BirdDog is still growing, but is quickly becoming the site of choice for Tennessee trial lawyers to access information they need to serve their clients.
Bookmark BirdDog!
Where plaintiff wife failed to give written notice of her loss of consortium claim against the State of Tennessee to the Division of Claims and Risk Management, dismissal of her claim was affirmed, despite the fact that her complaint was filed with the Claims Commission within the statute of limitations.
In Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022), plaintiff husband was seriously injured when his car crashed into a state-owned vehicle that had been parked on a highway. Pursuant to Tenn. Code Ann. § 9-8-402, which applies to certain claims against the State, husband gave written notice of his claim for damages to the Division of Claims and Risk Management (Division of Claims). When the Division of Claims took no action within 90 days, husband filed a complaint with the Claims Commission. This complaint was filed just under one year after the car accident, and instead of only including husband’s claims, it also included a loss of consortium claim from plaintiff wife.
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.
The Tennessee Supreme Court reviews very few cases in a given year. In the year ending June 30, 2020 (the last period for which information is publicly available) the High Court was asked to accept review in 569 cases. (These are the cases where the Court has the discretion whether to hear the case or allow the lower court ruling to stand. There are other types of cases that the Court is required to hear.) Out of the 569 cases it was asked to review, it accepted only 20.
In the same fiscal year, the Court issued opinions in 63 cases.
Given the case selection criteria in discretionary review matters and the types of appeal-as-of-right cases, each opinion is highly likely to materially impact Tennessee law.
The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually. Plaintiff seeks an immediate virtual trial. Defendant opposes it.
The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue. This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.
And you get the benefit of the work at no cost.
Where plaintiff had filed complaints with the Board of Professional Responsibility (BPR) complaining of the same allegations that allegedly supported her legal malpractice claim, and those BPR complaints were filed more than one year before the legal malpractice suit was filed, summary judgment based on the statute of limitations was affirmed.
In Jones v. Marshall, No. M2020-01627-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2021), plaintiff filed this pro se legal malpractice claim against defendant on December 20, 2019. Plaintiff had previously reported defendant to the BPR based on the same allegations in November 2018. Defendant filed a motion to dismiss, asserting that the BPR decisions on the matter “were res judicata and Plaintiff had failed to establish a prima facie case of legal malpractice.” Defendant filed a separate motion for summary judgment, asserting that the complaint was barred by the statute of limitations.
Tennessee wrongful death lawyers may wish to read my newest article in the Tennessee Bar Journal, “”Wrongful Death of a Zygote?”
The article discusses a recent important change to Tennessee wrongful death law.
Where plaintiff had no evidence that defendant took any action that contributed to him being knocked off a ladder while nailing a board to a window, summary judgment for defendant was affirmed.
In Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021), plaintiff and defendant were friends who both had construction work experience. Defendant needed help nailing boards across a window on his cabin that was under construction, and plaintiff agreed to assist him. Plaintiff and defendant were both on ladders, and one would hold the lower end of the board while the other nailed the upper end of the board to the cabin. Plaintiff had placed his own ladder and was using his own hammer during the project. Plaintiff was nailing one board while the other end was being held at a lower diagonal by defendant, when after placing a few nails in the board, plaintiff hit the board again with his hammer and the board bounced back and knocked him off his ladder, causing serious injuries.
Plaintiff filed this personal injury suit, asserting that defendant’s negligence caused his injuries. During his deposition, plaintiff was asked what defendant was doing when the injury occurred, and plaintiff stated that defendant was “holding the lower end” of the board. When asked what defendant did “that caused the two-by-four to come out,” plaintiff responded that he did not know. During his own deposition, defendant stated that he was “just holding the board” at the time of the accident.
Where a child was removed from his parents’ custody by the Department of Children’s Services (DCS) and placed in a home that DCS’s own investigation had found to be unsafe, and the child later died while in that home, the Claims Commission had subject matter jurisdiction of the parents’ negligence claim because the child was in the care, custody, or control of the State when the negligent inspection and recommendation for placement was made.
In Green v. State of Tennessee, No. M2020-01244-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2021), plaintiffs were the parents of three minor children. After receiving a report of abuse and/or neglect concerning the children, DCS removed the children and the mother signed an Immediate Protection Agreement (IPA) stating that temporary custody would be given to the children’s grandparents. Ms. McSwain was the DCS case manager assigned to the case, but a DCS staff member in the grandparents’ county visited the home and found it to be unsafe, specifically noting that there was not “sufficient furniture for safe sleep.” Despite that finding, Ms. McSwain placed the children in the grandparents’ home, and she never visited the home or followed up to see if any changes had been made. A court order granting temporary custody to the grandparents was eventually entered. Four months after being placed with the grandparents, one of the children died “from co-sleeping in a recliner with [the grandmother].” Ms. McSwain and her supervisor “were subsequently terminated by DCS for negligence.”
Parents brought this negligence suit against the State pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E), and the State filed a motion to dismiss asserting that the Claims Commission did not have subject matter jurisdiction of the case. The State argued that because there was a court order granting temporary custody to the grandparents in place when the child died, the child was not in the State’s “care, custody, and control,” which is required by the statute. The Claims Commission agreed with the state, finding that the case did not fall within the subsection cited by plaintiffs, that governmental immunity was therefore not waived, and that it accordingly did not have subject matter jurisdiction. This holding was reversed on appeal.
