Day on Torts

June 29, 2020

Determining reasonable attorneys’ fees in post-settlement dispute.

When determining the amount of attorneys’ fees to award in a post-settlement attorney fee dispute, the trial court should have considered the relevant facts and factors contained in Tennessee Rules of Professional Conduct 1.5(a).

In Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. Ct. App. May 19, 2020), the issues at play were “post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of post-settlement discretionary costs against the carrier.” In the underlying case, Sergio Lopez had died from injuries he sustained at work. The injuries were caused by a third party (defendant), and Mr. Lopez’s employer’s workers’ compensation insurance carrier had been paying benefits to his wife and children. The wife filed a wrongful death claim against defendant company and its employee, alleging that the employee caused her husband’s death and that the company was vicariously liable.

In the wrongful death action, plaintiffs were initially represented by attorney Gary Hodges, whose fee agreement “entitled him to 33% of the gross recovery obtained through arbitration, settlement conference or trial.” The agreement also provided that if Mr. Hodges was discharged and plaintiff recovered after the discharge, Mr. Hodges would be entitled to “a reasonable attorney’s fee and reimbursement for all costs advanced.” Notably, the agreement did not differentiate between “discharge for good cause and discharge without cause.” After he was hired by the plaintiffs, “Mr. Hodges entered a separate fee-sharing agreement with another solo practitioner, Robert L. Martin.” Plaintiffs never had an agreement with Mr. Martin and were not told about the agreement between Mr. Hodges and Mr. Martin.

June 24, 2020

Jury Verdict Finding Plaintiff 77% at Fault Vacated

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

Where defendant introduced no material evidence at trial to support a finding that plaintiff was 77% at fault for a fall cased by a faulty automatic door, the jury’s verdict was vacated.

In Gilmore v. NOL, LLC A/K/A Premier Radiology, No. M2019-01308-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiff* was an 84-year-old physical therapy patient. When she was exiting defendant’s building after her physical therapy appointment, “the automatic door closed while she was standing just outside the threshold of the doorway,” causing her to fall and break her arm and leg.

Plaintiff filed a negligence and premises liability suit against defendant, and defendant asserted the defense of comparative fault in its answer. After a jury trial, the jury returned a verdict finding plaintiff 77% at fault and defendant 23% at fault, meaning that plaintiff did not recover any damages. Plaintiff filed a motion for a new trial, which the trial court denied. On appeal, plaintiff asserted that the trial court used the wrong standard in its role as thirteenth juror and that there was no evidence to support the comparative fault finding.

June 22, 2020

Case dismissed for negligent spoliation of evidence.

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

Where plaintiffs sued for $500,000 in flood damages to a bus and trailer, but disposed of the bus and trailer shortly after the flood before defendant could examine the alleged damages, the Court of Appeals affirmed dismissal of the gross negligence claim based on spoliation of evidence.

In Legacy Five Leasing, LLC v. Busforsale.com, LLC, No. M2019-01615-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiffs leased a parking space for their bus and trailer from defendant. When leasing the space, plaintiffs signed an agreement that stated that defendant “assumed no liability or responsibility for damages to [the bus and/or trailer] due to theft, vandalism, fire, flood or other acts of God or man,” and the agreement stated that plaintiffs’ equipment would be “parked in a floodway or floodplain.”

Less than a year after the agreement was signed, the parking lot flooded, and plaintiffs claimed their bus and trailer were extensively damaged. Plaintiffs “confronted” defendant just four days after the flood regarding defendant’s actions with respect to the flood. The following day, plaintiffs gave control of the bus and trailer to their insurance company, and the property was disposed of before defendant could examine any of the alleged damage.

June 19, 2020

Summary Judgment for Convenience Store Reversed in Slip-and-File Case

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

Where a premises liability plaintiff produced photographs showing possibly damp conditions around a gas pump where she fell, testified that the EMTs who arrived to help her slipped, and relied on an incident report stating that the store was “not for sure if it was slick from oil or gas,” plaintiff had shown that there were genuine issues of material fact and summary judgment for defendant was reversed.

In Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Cr. App. May 19, 2020), plaintiff was fueling her car at defendant convenience store. As she stepped towards her car to get trash out, she slipped and fell. Two EMTs came to help plaintiff, and the manager at the store took photos of the area, completed an incident report, and wrote down another customer’s contact information who had witnessed the incident.

Plaintiff filed this premises liability case, and plaintiff, the EMTs, the store manager, and an HR representative from defendant were deposed. Plaintiff testified that her foot slipped, though she admitted that “she did not see any oil, gas, or spills before or after her fall…” Plaintiff also claimed that the two EMTs “both slipped and almost fell while tending to her.”

June 16, 2020

Notice letter could not cure deficiencies in HIPAA authorization.

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

Where plaintiff failed to include one of the core elements in the HIPAA authorizations sent with her HCLA pre-suit notice, she could not rely on her notice letter to “cure any deficiency on the authorization document.”

In Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020), plaintiff sued defendants as power of attorney for patient, who allegedly suffered skin problems, pressure sores, and severe sepsis after his treatment by defendants. Plaintiff sent a timely pre-suit notice “packet” to defendants, which included a cover letter directed to each provider, an attached list of the names and addresses of all providers being sent notice, and a HIPAA authorization.

June 15, 2020

Exclusion of Defense Expert Reversible Error in Civil Battery Case

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

Where the probative value of an expert witness’s testimony outweighed the risk that such testimony would confuse the jury, the expert testimony should have been allowed and the jury verdict was vacated.

In Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020), plaintiff filed a complaint for assault, battery and intentional infliction of emotional distress related to an alleged sexual assault committed by defendant. According to plaintiff, she was working as a caregiver in defendant’s home. Defendant needed in-home care after sustaining injuries in a car accident and receiving a diagnosis of stage four lymphoma. While plaintiff was in defendant’s home, she alleged that he sexually assaulted her for approximately three hours.

June 12, 2020

No magic words required to make HIPAA authorization compliant

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

Where a HIPAA authorization included with HCLA pre-suit notice “permits a defendant to obtain medical records in actual fact but simply does not include the word ‘obtain,’ it is still compliant.”

In Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020), plaintiffs filed a health care liability suit against several defendants based on a surgically inserted port that became infected and caused permanent injuries. Before filing their complaint, plaintiffs sent the defendants pre-suit notice and included a HIPAA authorization as required by the HCLA. The authorization was accompanied by a letter that stated: “Attached please find a list of providers to whom a substantially similar notice is being sent…[Plaintiff] has executed a HIPAA-compliant medical authorization authorizing you to obtain complete medical records from [same list of providers].”

June 9, 2020

Minimal damages affirmed where plaintiff offered no expert testimony on medical expenses

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

Where a car accident plaintiff was granted summary judgment as to liability but offered no evidence regarding her medical damages beyond her own testimony, including no expert testimony that any of her medical expenses were reasonable and necessary, the trial court did not err by awarding her only $5,000.

In Marsh v. Lowe, No. E2019-00697-COA-R3-CV (Tenn. Ct. App. April 29, 2020), plaintiff was rear-ended on the interstate, and she filed suit against both the driver and the owner of the car. Plaintiff alleged that the driver was negligent by failing to slow appropriately for traffic, and she specifically pointed out that the driver was cited for DUI and for using a cell phone/ distracted driving by the police. Plaintiff alleged that the car owner was negligent by “entrusting [the driver] to operate the vehicle.”

June 8, 2020

Analyzing prejudice to defendant when HCLA pre-suit notice is deficient.

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

When a defendant has filed a motion to dismiss challenging whether an HCLA plaintiff fulfilled the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121, “prejudice is relevant to the determination…but it is not a separate and independent analytical element.”

In Martin v. Rolling Hills Hospital, LLC, No. M2016-02214-SC-R11-CV (Tenn. April 29, 2020), plaintiffs filed an HCLA case against multiple defendants based on the death of their daughter. Plaintiffs gave timely pre-suit notice, but the HIPAA authorization they sent with their notice failed to include “three of the six core elements federal law requires for HIPAA compliance.” Specifically, the authorizations “failed to list the name and address of the provider authorized to release medical records,” failed to list an expiration date, and “failed to provide a description or documentation of [plaintiff’s] authority to act for the decedent.”

June 5, 2020

Nuisance claim arising from construction fails

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

Where plaintiff claimed that defendant created a nuisance by allowing debris to drain onto her land and by causing a sewage smell, but the only evidence consisted of conflicting witness testimony with the trial court crediting defendant’s testimony, dismissal of the nuisance claim was affirmed.

In Magness v. Couser, No. M2019-01138-COA-R3-CV (Tenn. Ct. App. April 27, 2020), the parties were neighbors who had been involved in contentious litigation since 2004, including claims and counterclaims from both parties. At issue in this appeal was Ms. Couser’s (hereinafter plaintiff) nuisance claim against Mr. Magness (hereinafter defendant). In June 2004, defendant had begun constructing a large commercial building on his property that was located close to plaintiff’s property line. Plaintiff alleged that “the construction of the large building resulted in gravel and debris draining onto her land” even after the completion of the construction in 2006. Plaintiff alleged that the runoff created a gully on her property, destroyed her fence, and that it was destroying a natural spring. In addition to the claim based on runoff, plaintiff alleged defendant created a nuisance by incorrectly installing a septic tank and causing a “sewage smell and foul odor” to permeate her property.