Day on Torts

July 23, 2021

Denial of Tennessee uninsured motorist coverage affirmed.

Where plaintiff sought to recover against her car insurance company pursuant to uninsured motorist coverage after being in a car accident with an uninsured driver, the trial court’s ruling that plaintiff’s “non-owner” policy did not cover the accident because the car she was driving was “furnished or available for her regular use” was affirmed.

In Medders v. Newby, No. M2020-01094-COA-R3-CV (Tenn. Ct. App. July 6, 2021), plaintiff was driving a Jetta when she was struck by another car. Neither the owner nor the driver of the other car had insurance, so plaintiff served her insurance company in an attempt to recover under uninsured motorist coverage.

Plaintiff did not own the Jetta she was driving at the time of the accident. Plaintiff was engaged to Samuel Todd Tinnin, who worked for a used car company. Mr. Tinnin had his employer purchase the Jetta at an auction in June 2016, and he then bought the car from the employer on July 5, 2016. The accident occurred on July 11, and Plaintiff and Mr. Tinnin were married on July 12, 2016. On that same day, a title to the Jetta was issued in Mr. Tinnin’s name. In his deposition, Mr. Tinnin stated that he bought the car for plaintiff, he intended it to be a wedding present for plaintiff, and that he purchased it for her personal use. Mr. Tinnin changed his testimony at trial and stated that he bought the car with the intention of flipping it, but the trial court did not credit this testimony. Plaintiff began driving the car on July 5.

July 20, 2021

Jury verdict affirmed where jury believed defendant’s account of car accident.

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

Where plaintiff and defendant offered conflicting testimony regarding what caused a car accident, and the jury credited defendant’s testimony and found defendant not at fault, the verdict was affirmed. In Justice v. Hyatt, No. M2019-02105-COA-R3-CV (Tenn. Ct. App. June 30, 2021), plaintiff was driving his truck with his friend in the passenger seat while looking at investment properties. While passing through a four-way stop in Pulaski, plaintiff’s truck and defendant’s SUV collided.

Plaintiff and defendant offered contradictory testimony regarding what caused the accident. Plaintiff stated that he stopped at the stop sign, looked both ways, and did not see defendant approaching. He said that when he was halfway through the intersection, defendant’s vehicle approached to his right, slowed down, then sped up and hit his truck. Plaintiff stated that after the accident, he went to check on defendant and she “freely admitted liability for the accident,” stating that she was distracted by looking at a nearby house. Plaintiff’s passenger corroborated this testimony.

July 13, 2021

Lack of Evidence on Value of Property Damage Dooms Tennessee Case

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

Where plaintiff only presented proof that his property was damaged during shipment but did not present any proof sufficient to allow the trial court to assess his damages, involuntary dismissal was affirmed. In Matthews v. UPS Store Center 3138, No. E2020-00255-COA-R3-CV (Tenn. Ct. App. June 25, 2021), plaintiff filed suit after his personal property was damaged during shipment. Plaintiff had taken a stereo receiver to defendant store to be shipped, and he purchased the packing materials recommended by the clerk. The store clerk packed the receiver, but plaintiff was later informed by the recipient that the receiver was damaged during the shipment.

Plaintiff filed suit against the UPS store and the clerk in general sessions court, where he won, but he appealed to the circuit court for a new trial. After plaintiff closed his proof, defendants moved for dismissal, which the trial court granted and the Court of Appeals affirmed.

The trial court granted dismissal based on plaintiff’s failure to present sufficient proof of his damages. Plaintiff argued that the trial court erred by excluding two affidavits from the recipient of the damaged package, as well as photographs of the damaged receiver. Without ruling on the admissibility of the excluded evidence, the Court ruled that dismissal was appropriate here. The Court explained:

July 7, 2021

Bifurcation of standard of care and causation issues in HCLA case affirmed.

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

Where a trial judge bifurcated an HCLA trial, addressing only the standard of care and whether defendants deviated from said standard in the first phase, and analyzing causation in the second phase if needed, the Court of Appeals affirmed the decision to bifurcate.

In Jernigan v. Paasche, No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021), plaintiff filed a health care liability and wrongful death suit after the death of his wife. The wife had presented at an emergency room with severe abdominal pain and nausea and been examined by defendant Dr. Paasche. Dr. Paashe ordered a CT scan, which “revealed that Decedent suffered from a large paraesophageal hernia.” Dr. Paashe discharged the wife with a prescription and advice to follow up with her doctor within a few days.

The following day, the wife went to a different emergency room with severe abdominal pains and vomiting. She was seen by defendant Dr. Wojcik, who gave her fluids and medication and discharged her with instructions to follow up with her doctor within the week. When the wife went to the emergency room again, another CT scan was performed and showed that she “had suffered a perforation with portions of her stomach having herniated into her chest.” The wife was taken into surgery, but she died in the recovery room after the procedure. Plaintiff subsequently filed this suit, alleging that “both Dr. Paasche and Dr. Wojcik were negligent for failing to properly diagnose Decedent’s condition, failing to obtain a surgical consult following their respective initial examinations of Decedent, and discharging her in an unstable condition.”

July 2, 2021

Jury’s decision to not reject some of plaintiff’s medical expenses affirmed.

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

Where there was material evidence to support the jury’s verdict which failed to award plaintiff damages for medical expenses related to his shoulder injury, the verdict was affirmed. In Almuawi v. Gregory, No. M2020-01018-COA-R3-CV (Tenn. Ct. App. June 2, 2021), plaintiff and defendant were involved in a car accident when plaintiff was rear-ended by defendant. Defendant admitted liability, so the only issue at trial was the amount of damages to be awarded to plaintiff. Plaintiff’s complaint sought $200,000, including $27,870.21 in medical expenses, $539 for replacement of his eye glasses, and the remainder for “past pain and suffering and his loss of the ability to enjoy life.”

After a two-day jury trial, the jury returned a verdict awarding plaintiff a total of $13,796.21, which included $8,257.21 in medical expenses, $539 for eye glasses, and $5,000 in noneconomic damages. Notably, the jury award did not include over $15,000 in expenses plaintiff incurred while being treated by a chiropractor for a labral tear to his right shoulder. Plaintiff filed a motion for a new trial or, in the alternative, for additur, which the trial court denied. On appeal, the jury’s verdict and the denial of the motion for a new trial was affirmed by the Court of Appeals.

When the Court of Appeals is reviewing a jury verdict, it is “required to take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allowing all reasonable inferences to sustain the verdict, and to discard all countervailing evidence,” approving the verdict if “there is any material evidence to support the award.” (internal citations omitted). The issue here was whether the jury properly excluded damages for costs related to plaintiff’s shoulder injury, an injury for which defendant denied responsibility. The evidence at trial showed that the accident occurred on March 8, 2017, and that plaintiff did not complain of shoulder pain until almost a month later on April 5th. On the day of the accident, plaintiff’s medical records showed that he “complained of pain in his left knee, neck/back, and the left side of his face.” The next day, he mentioned pain in his “neck, mid-back, and left knee.” One week after the accident, he visited his doctor and complained of “low back pain, neck pain, and left knee pain.” The first mention of shoulder pain was a note from a physical therapist on April 5th, but at a doctor’s appointment two days later plaintiff did not complain of shoulder pain.

July 1, 2021

Summary judgment affirmed where defendant tested negative for STD he allegedly transmitted to plaintiff.

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

Where plaintiff had not been tested for specific STD before relationship with defendant, and defendant presented uncontradicted medical proof that he did not have said STD, summary judgment in case where plaintiff alleged defendant gave her STD was affirmed. In P.H. v. Cole, No. M2020-01353-COA-R3-CV (Tenn. Ct. App. June 7, 2021), plaintiff filed a complaint asserting claims for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, and fraud based on plaintiff’s allegation that she contracted HSV-2, a sexually transmitted disease, from defendant. Plaintiff and defendant “dated for a period of time between 2014 and 2018,” and plaintiff tested positive for HSV-2 in 2018.

Five days after filing his answer in this case, defendant filed a motion for summary judgment. In support of this motion, he attached blood test results showing that he was negative for HSV-2, as well as the declaration of Dr. Wawa, the doctor in charge of the medical center where defendant was tested. In response, plaintiff suggested that defendant’s test results might not be accurate if he was immunocompromised, which prompted defendant to get tested for HIV. Defendant then filed a second declaration from Dr. Wawa along with test results showing that he tested negative for HIV and “was not immunocompromised.”

During a hearing on the summary judgment motion, plaintiff’s attorney “conceded that, although [plaintiff] was tested for sexually transmitted diseases before she and [defendant] began their sexual relationship, she was not tested for HSV-2 until 2018, after the parties’ sexual relationship had ended.” Based on this concession and the evidence presented by defendant, the trial court granted defendant summary judgment, and the Court of Appeals affirmed.

June 30, 2021

Court of Appeals releases first opinion addressing Tennessee Public Participation Act.

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

When defendant filed a petition to dismiss a defamation case under the Tennessee Public Participation Act (TPPA), and plaintiff failed to respond by “establish[ing] a prima facie case for each essential element of the claim in the legal action,” dismissal was affirmed. Further, exclusive jurisdiction of the appeal of the TPPA dismissal rested in the Court of Appeals. In Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021), plaintiffs neurology clinic and neurologist filed this suit against defendant after defendant left a negative review of plaintiff doctor online. After non-suiting the first action, this case was filed in general sessions court, wherein plaintiffs alleged defamation and false light invasion of privacy. Defendant filed a petition to dismiss the case in its entirety, asserting first that plaintiffs failed to state a claim because they “failed to plead the substance of any statement over which they complained,” and that the statement “was not defamatory because it expressed only opinions and rhetorical hyperbole.” In addition, defendant argued that this case should be dismissed pursuant to the TPPA because the “review was a statement made in connection with a matter of public concern and that Plaintiffs’ lawsuit ‘qualifies as one filed in response to defendant’s exercise of the right to free speech.’” Defendant’s petition also asked that she be awarded costs, attorney’s fees, and sanctions pursuant to the TPPA. Defendant supported her petition with a personal affidavit stating that “her Yelp! review was based on her personal observations and that she had no reason to believe any of the statements in the review were false.”

Plaintiffs responded to the petition by arguing that Tenn. Code Ann. § 20-17-101 et. seq., known at the TPPA, could not apply here because it was a rule of civil procedure, which is not applicable in sessions court. Plaintiffs, however, “did not address the substance of Defendant’s argument nor did Plaintiffs offer any countervailing proof in response to Defendant’s affidavit.”

The general sessions court held a hearing on February 6, 2020, where plaintiffs continued to rely “solely on the theory that the TPPA is a rule of civil procedure that does not apply in general sessions court.” Six days after the hearing, plaintiffs filed a supplemental response where they argued for the first time that they “could prove a prima facie case for defamation and false light,” and they attached the doctor’s affidavit in support. The sessions judge ruled the following day, dismissing the claims pursuant to the TPPA and plaintiffs’ failure to respond to the petition to dismiss with any facts. The order, however, did not resolve defendant’s request for costs, attorney’s fees and sanctions.

June 14, 2021

Noneconomic damages cap applied to injured plaintiff and loss of consortium plaintiff jointly.

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

When an injured plaintiff’s spouse asserts a loss of consortium claim, the noneconomic damages cap found in Tenn. Code Ann. § 29-39-102 “allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages.” In Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021), plaintiffs filed an HCLA claim after plaintiff wife’s surgeon left a medical device in her abdominal cavity while removing her kidney, causing her pain and chronic inflammation until the device was discovered during an unrelated procedure eight years later. The jury had awarded plaintiff wife $4,000,000 in pain and suffering and loss of enjoyment of life damages, and awarded $500,000 in damages to plaintiff husband for loss of consortium. The trial court originally ruled that the damages in total would be reduced to $750,000 pursuant to the damages cap, but then amended the ruling and held that the cap should be applied to each plaintiff separately, meaning that the wife would receive $750,000 and husband would receive $500,000. The Court of Appeals affirmed this application of the damages cap.

During this appeal to the Supreme Court, the facts of the case were not at issue. The only issue here was how Tennessee’s cap on noneconomic damages should be applied when the injured plaintiff is seeking noneconomic damages and his or her spouse is also pursuing a loss of consortium claim (but not a claim for personal injuries).

June 2, 2021

Tort Salad: Defamation, Conversion, Trespass to Chattels, False Light Invasion of Privacy, Trespass, NIED, IIED and Negligence

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

Where plaintiff alleging defamation was a public figure but had pleaded in the complaint that defendants were “negligent and/or reckless in ascertaining the truth” of the statements, the trial court incorrectly granted judgment on the pleadings on the defamation and false light invasion of privacy claims. Further, where defendants had counterclaimed for trespass to chattels, conversion, negligence, and trespass, and the “countercomplaint [had] factual allegations to support the required elements” of those claims, dismissal was reversed. In Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV (Tenn. Ct. App. May 25, 2021), plaintiff shot and injured defendant’s dog when it was on plaintiff’s property. According to plaintiff, the dog had cornered his cat and he feared for its safety. After this incident, the dog’s owner, Ms. Bishop, and an individual unrelated to the dog, Mr. Williams, posted negative opinions about plaintiff on social media.

Sometime after this incident, plaintiff ran for county commissioner. During the campaign, Ms. Bishop and Mr. Williams continued posting negative opinions and information about plaintiff. Ms. Bishop’s children’s grandfather, Mr. Forsythe, also posted negative comments about plaintiff on social media. Plaintiff lost the election.

May 28, 2021

HIPAA authorization deemed compliant despite return of no records.

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

Where plaintiffs filed an Tennesseee medical malpractice (HCLA) claim on behalf of their stillborn child and made no claims “for damages for harm or injury to Savannah Jackson (‘Mother’),” the HIPAA authorization form provided by plaintiffs that identified the stillborn child as the patient and released records in his name was proper, and the claims commission was correct to deny summary judgment to defendants. The fact that the health care providers did not have records under the child’s name and thus did not disclose any records in response to defendants’ request did not change that analysis. In Jackson v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. April 20, 2021), plaintiffs were the parents of a stillborn child. Plaintiffs sent proper pre-suit notice with a HIPAA authorization to defendant, and the authorization stated that the patient name was “Branson Vance Jackson,” the name of the deceased child. Plaintiff mother signed the authorization in her capacity as the mother, but no HIPAA authorization was sent regarding the mother’s files, as no “claim was presented for damages for harm or injury” to the mother.

The State sent the HIPAA authorization to four medical providers who were sent notice and identified by plaintiff, and none of the providers produced any medical records in response to the request. Two providers specifically responded that they had no record of a patient with that name or date of birth on file.