Day on Torts

April 1, 2021

Cross-examination Tips

Lane Haygood, of Haygood Law in Odessa, Texas, offered a series of tweets on conducting cross-examination. They are repeated below.

Cross-examination is an essential skill for a trial lawyer, and one most lawyers are truly, mind-bogglingly terrible about, because they overcomplicate the process. To be a good cross-examiner, you have to be a good listener. /2

Most lawyers try to script their crosses. This is bad. Most lawyers don’t listen to what the witness is saying, because they’re too busy thinking of their next devastating Perry Mason question. Stop that. You’re not Perry Mason and this isn’t TV. /3

March 30, 2021

Case against deceased defendant time-barred.

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

Where the other driver in a car accident case died before suit was filed and the plaintiff failed to “timely file his tort action against the personal representative within the applicable statute of limitations,” summary judgment for the personal representative was affirmed.

In Mott v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021), the plaintiff was in a car accident with another driver on March 22, 2016. Plaintiff filed a civil action in general sessions court against the driver on March 3, 2017, but the driver had died on December 7, 2016. After the plaintiff learned of the driver’s death, he filed a petition on August 30, 2017, to have the defendant appointed as the personal representative of the estate, and the probate division of the chancery court entered an order appointing the defendant on October 31, 2017. Plaintiff filed a “re-issued” civil summons in the sessions court on January 31, 2018, which was served on the defendant as the personal representative. The matter was transferred to the trial court by agreement of the parties, and then in February 2019, the defendant filed a motion for summary judgment based on the statute of limitations. The trial court agreed that the case was time-barred and thus granted summary judgment, which was affirmed on appeal.

March 26, 2021

SCOTUS Addresses Personal Jurisdiction in Products Liability Lawsuits

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

Ford Motor Company can be required to face a product liability suit in a state where the plaintiff, a resident of the state, was injured even though the vehicle involved in the crash was not manufactured or originally sold in the state.

Ford Motor Co. v. Montana Eighth Judicial District and Ford Motor Co. v. Bandemer were consolidated in a March 25, 2021 opinion by the SCOTUS.

The 8-0 opinion of the court found that Ford had the requisite minimum contacts with the forum states even though the vehicles involved were not manufactured or sold there. Instead, the court found that Ford’s advertising, marketing, servicing, selling, etc. activities in the state where the wreck occurred were sufficient to permit it to be sued in the state.

March 19, 2021

Landlord liable for negligent misrepresentation based on false statement that roof could be quickly repaired.

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

Where the landlord misrepresented the state of a building’s roof at the time the lease was executed, knowing that it could not be quickly repaired and that previous repair attempts had failed, the trial court’s finding for the tenant on the negligent misrepresentation claim was affirmed.

In Pryority Partnership v. AMT Properties, LLC, No. E2020-00511-COA-R3-CV (Tenn. Ct. App. Mar. 10, 2021), landlord and tenant executed a lease agreement for a commercial warehouse with the understanding that the tenant would operate a factory/machine shop in the building. At the time the lease was executed, the tenant knew that the roof leaked, but the landlord had represented that the roof would be quickly repaired. When the roof was not repaired six months into the lease, tenant did not make the scheduled payment under the lease, and the landlord brought this suit for breach of contract. The tenant filed a counter-complaint for breach of contract and negligent misrepresentation, and the trial court found for the tenant on both claims, which the Court of Appeals affirmed.

March 12, 2021

Court clarifies factors to consider for fraud allegation related to attorney-client fee agreement.

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

Where plaintiff alleged that defendant attorney fraudulently charged a higher hourly rate than what was agreed upon, the trial court should have engaged in a three-factor analysis to determine whether the written fee agreement could be used to defeat the fraud claim.

In Vazeen v. Sir, No. M2019-01395-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2021), plaintiff filed a fraud claim against defendant attorney who had represented him for a portion of plaintiff’s previous divorce case. Plaintiff asserted that defendant had engaged in fraudulent billing and that defendant had “charged a higher hourly rate than agreed.” After an initial appeal and remand, the trial court held a bench trial where plaintiff and defendant were the only witnesses. The trial court ultimately ruled for defendant on all claims, and this ruling was affirmed in part and reversed in part on appeal.

March 10, 2021

Doctor’s Alleged Misrepresentation of Credential’s Falls Outside of HCLA requirements.

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

Where plaintiff alleged that defendant doctor committed intentional misrepresentation and medical battery by stating that he was board-certified in plastic surgery when he was not, the Tennessee Court of Appeals affirmed the ruling that these claims were not governed by Tennessee’s HCLA. In Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020), plaintiff saw advertisements for NuBody and went to their office in Brentwood for a consultation regarding surgical breast reduction. Plaintiff met with Ms. Norris, a NuBody representative, and defendant Dr. Mandy, at which time they told plaintiff that Dr. Mandy was board-certified in plastic surgery. Plaintiff alleged that she entered into an agreement to have the surgery in reliance on these statements, but that the subsequent surgery was not properly performed, leaving her “disfigured and with grotesque and painful bacterial infections.” Plaintiff later learned that Dr. Mandy was not board-certified in plastic surgery, and was actually not board-certified in any field at the time of her treatment.

March 3, 2021

Dismissal of negligent retention claim affirmed

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

A plaintiff alleging negligent retention “has the burden of showing that the employee or independent contractor was not qualified to perform the work for which he was hired,” and that “the employer had knowledge of the employee’s unfitness for the job.” (internal citations omitted).

In Parker v. ABC Technologies, Inc., No. M2020-00675-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2021), plaintiff filed a pro se action against his former employer and two managers from the former employer for negligent retention, among other claims. In a brief analysis, the Court of Appeals affirmed dismissal of this case, finding that plaintiff had not pled sufficient facts to support his claim.

The Court explained that a plaintiff alleging negligent hiring, supervision, or retention of an employee must show, “in addition to the elements of a negligence claim[,] that the employer had knowledge of the employee’s unfitness for the job.” (internal citation omitted). In this case, plaintiff named two managers from his former place of employment as defendants. The Court ruled that these managers, as employees of the company, “could not also assume the role of employer and ‘retain’ their own employment,” so the negligent retention claim against them failed.

February 24, 2021

Statutory presumption of insurance acceptance applies in action against insurance agent.

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

The statutory presumption created by Tenn. Code Ann. § 56-7-135(b) that payment of an insurance premium “creates a rebuttable presumption that the coverage provided has been accepted by all insureds under the contract” applies in claims against insurance agents for negligent failure to procure an insurance policy.

In Parveen v. ACG South Insurance Agency, LLC, 613 S.W.3d 113 (Tenn. Dec. 4, 2020), plaintiffs lived in Georgia and had an umbrella insurance policy that included $2,000,000 in excess uninsured motorist coverage. When plaintiffs moved to Tennessee, they worked with defendant agent to obtain new insurance, and they alleged that they provided him with a copy of their old policy and asked for the exact same coverage. Defendant agent obtained an umbrella policy for plaintiffs, but the policy did not include any excess uninsured motorist coverage. There was no “separate line item” for uninsured motorist coverage on the quote given to plaintiffs, the policy premium did not “reflect the inclusion of such coverage,” and the declarations page did not include uninsured motorist coverage. Further, the policy itself specifically excluded uninsured or underinsured motorist coverage.

Plaintiffs initially paid for the policy obtained by defendant in 2013, and they renewed the policy in 2014 and 2015. In 2015, plaintiff wife was involved in an accident with an underinsured motorist. After this accident, plaintiffs added uninsured motorist coverage to their policy, but because such addition was not retroactive, the insurance company was found not liable for damages from the accident.

February 19, 2021

Tennessee’s “Common Knowledge” Exception to Use of an Expert in Health Care Liability Act Cases

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

Those seeking to learn the current state of the law on whether and when one can avoid the use of an expert witness on the negligence issue in Tennessee medical malpractice litigation may wish to read my recent article, “Flies, Buttermilk and Malpractice.” The article appeared in the Jan./Feb. issue of Tennessee Bar Journal.

February 18, 2021

HCLA statute of limitations for claim against doctor and hospital began to run on same date.

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

HCLA statute of limitations for claim against doctor and hospital began to run on same date.

Where plaintiff knew on October 31, 2017 that her surgeon had wrongly positioned screws during a previous spine surgery, the statute of limitations for her Tennessee HCLA claims against the hospital defendants who allegedly employed the surgeon began to run on that day.

In Karr v. Saint Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021), plaintiff had spine surgery in July 2016 performed by Dr. McCord at defendant hospital. Plaintiff continued seeing Dr. McCord until October 31, 2017, when she discovered that he had “malpositioned screws during the surgery.” Plaintiff did not return to Dr. McCord after this date, and instead began treating with Dr. Cheng. Dr. Cheng performed surgery on plaintiff on May 14, 2018, at which time he “discovered…that both the number and the extent of the malpositioned screws was greater than previously known,” and he told plaintiff that the surgery performed by Dr. McCord did not properly address the diagnosis she had been given.