Day on Torts

May 6, 2020

Suing a Deceased Defendant in Tennessee

Where a plaintiff filed a personal injury action against the personal representative of the estate of the deceased tortfeasor, but the estate had already been closed and the statute of limitations had run by the time the plaintiff sought to extend the time to file correctly, dismissal based on untimeliness was affirmed.

In Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31. 2020), plaintiff was injured in a car accident allegedly caused by Nancy Craig on September 25, 2017. Nancy Craig died the following January, and her estate was opened with Defendant David Craig as her personal representative in February 2018. The estate was closed on July 13, 2018.

May 3, 2020

Deaths in Car Crashes Down Almost 25% in Tennessee

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

Every Tennessean noticed a decline in motor vehicle traffic in the the month of April 2020. The reduced number of vehicles on the roads showed up in the death rate on the state’s highways.

In 2019, 88 people died on Tennessee highways during the month of April. In April 2020, 67 people died.

To be sure, every death on our highways results in a horrible loss for someone – each person who dies is someone’s parent, child, spouse or sibling. But last month 21 fewer families received bad news as a result of a motor vehicle crash in Tennessee.

April 30, 2020

Plaintiff previously convicted of kidnapping and bank robbery was libel proof

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

Where a plaintiff who had been convicted of multiple violent crimes filed a defamation claim asserting that a reporter damaged his reputation by stating in a written article that the FBI suspected he might have murdered his girlfriend, the Court of Appeals affirmed dismissal based on the theory that the plaintiff was libel-proof.

In Benanti v. Satterfield, No. E2018-01848-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2020), plaintiff filed a pro se defamation claim against a newspaper reporter. Plaintiff had previously been convicted in a very public trial of a scheme involving bank robbery through the kidnapping and extortion of bank employees and their families. Defendant reporter had written articles about plaintiff and his trial, several of which plaintiff attached to his complaint. While the articles contained information about plaintiff kidnapping entire families, pointing a gun at a baby’s head, and strapping a fake bomb to an elderly mother, plaintiff’s defamation claims were based on the portions of the articles that stated that plaintiff was suspected of possibly murdering his girlfriend because she found out about the criminal activities (though her death was ruled a suicide), as well as portions that alleged his business that focused on helping prisoners re-enter society was a sham.

April 27, 2020

Texas Supreme Court Reverses Sanctions Against Lawyer Alleged to Have Engaged in Push-Poll

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

The Texas Supreme Court has reversed the imposition of sanctions by a trial judge against a lawyer who was alleged to have engaged in push-polling in a case shortly before it was set for trial by jury.

The movants argued that a law firm employed by defendant product manufacturer “had improperly commissioned a telephone survey to be conducted in the county of suit mere weeks before the scheduled jury trial without ensuring witnesses, represented parties, judges, and court personnel were excluded from the survey database and without voluntarily disclosing the survey to the trial court or the litigants.” Maj. Op., p. 3. The manufacturer did not commission the poll or know it was being done. Maj. Op., p. 8. The poll is appended to the court’s opinion.

April 27, 2020

Fall Off Examination Table Within Health Care Liability Act

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

Plaintiff’s allegation that the examination table provided during a doctor’s appointment was unsafe fell under the Health Care Liability Act (HCLA) and was thus subject to dismissal due to plaintiff’s failure to provide pre-suit notice.

In Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2020), plaintiff had suffered from dizziness and fatigue, and he had a pacemaker implanted. In a later visit “for reprogramming of his pacemaker and other issues,” plaintiff fell off the examination table and hit the wall at defendant’s office “due to a fainting spell, resulting in injuries to [his] neck.”

Plaintiff filed suit alleging negligence, and his allegations were couched in premises liability language. Plaintiff asserted that defendants were negligent by failing to provide an examination table with railing and/or by failing to have padding. Plaintiff argued that “because Defendants knew that he suffered from fatigue and dizziness, they should have been aware of the risk associated with leaving him unattended on the examination table.”

April 22, 2020

Court: No Fraudulent Concealment Present

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

Where an HCLA plaintiff sought to add a nurse practitioner’s supervising doctor and employer more than three years after the negligent act occurred, and plaintiff could not show that the new defendants were “aware of the wrong,” plaintiff could not prove the fraudulent concealment exception to the HCLA statute of repose and summary judgment should have been granted.

In Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020), plaintiff had a bad cough on Christmas Eve 2009 and believed she had bronchitis. Plaintiff’s friend, Ms. Johnson, suggested that her friend, Nurse Iveson, might be able to help. “Nurse Iveson was employed as a nurse practitioner at Sun Medical Express Walk In Clinic,” but she was not working that day and was out on personal business when Ms. Johnson contacted her. Either Ms. Johnson or plaintiff explained plaintiff’s symptoms to Nurse Iveson, who then wrote plaintiff a prescription for an antibiotic, oral steroids, and an inhaler. Ms Johnson retrieved the prescription and took it into Walgreens, and plaintiff later picked the prescription up. Some time after taking the medications plaintiff began experiencing tendonitis and was told by her physician “that the most likely cause of her condition was the medication prescribed by Nurse Iveson.” Plaintiff alleged that neither Nurse Iveson nor anyone at Walgreens told her that “one potential side effect of the antibiotic was tendonitis or that the risk of tendonitis increased if the antibiotic was taken with steroids.”

April 20, 2020

Summary Judgment and Rule 56.03 Statements

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

Where plaintiff presented a statement of undisputed material facts that called into question the check cashing policies of defendant, but that statement of facts was ignored by the trial court in granting summary judgment for defendant, summary judgment was reversed.

In Great American Insurance Company v. Pilot Travel Centers, LLC, No. E2019-00649-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2020), plaintiff filed a negligence suit against defendant in relation to checks that were cashed by defendant’s stores. Plaintiff was a Comdata customer and used the Comdata system to pay certain independent contractors. Using this system, plaintiff would request a code for a Comdata check to be issued, and the check would be printed by defendant Pilot Travel Centers, which was a Comdata vendor. Independent contractors could then retrieve these checks from Pilot stores.

From June 2010 to March 2011, an employee of plaintiff, “without the knowledge or permission of [plaintiff,]” presented 689 codes at Pilot stores and both retrieved and cashed the checks, totaling over $368,000. Neither the employee nor plaintiff were the payee on the checks, and she cashed the checks wearing her work uniform, but defendant’s policy was to allow the “person presenting the code” to cash the check and “did not require that the payee of the check match the identification presented when the Comchek was cashed.” The employee used the controller’s password to request the codes, and there was a General Manager at plaintiff company in charge of “reviewing and signing off on the Comdata transactions.”

April 16, 2020

Arbitration Right in Underinsured Motorist Statute Not Triggered

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

When a person allegedly liable for the injury of a claimant “offers the limits of all liability insurance policies available to the party,” the Uninsured Motorist (UIM) statute provides an avenue through which the claimant may accept the offer but also “preserve the right to seek additional compensation from his or her UIM insurance carrier…” (internal citations omitted). In order to trigger the portion of the UIM Statute that requires a claimant’s insurance company to “elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights…,” the requirement that the insurance company of the person responsible for the injury notify the UIM carrier that the party is willing to cooperate with arbitration is mandatory, and the UIM carrier is not required to request this assurance.

In White v. State Farm Mutual Automobile Insurance Company, No. W2019-00918-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2020), plaintiffs were injured in a car accident. The other driver was insured by USAA, who offered the limits of the driver’s policy as settlement for plaintiffs’ claims. Plaintiffs had car insurance with defendant State Farm, which included UIM coverage.

In April 2018, plaintiffs informed State Farm by letter that they intended “to settle with USAA for the liability insurance policy limits…[and that they] were willing to submit their UIM claim to arbitration and that they hoped to work amicably toward a settlement with State Farm.” The next month, State Farm responded that plaintiffs had permission to settle with USAA and that it was still evaluating the UIM claim. Two weeks later, State Farm told plaintiffs that “it would not offer a settlement for their UIM bodily injury coverage because State Farm believed [plaintiffs] had been fully compensated for their injuries.” Plaintiffs responded by invoking Tenn. Code Ann. § 56-7-1206 and stating that State Farm should “tender $25,000 to each insured in order to proceed to a jury trial or waive jury and go to arbitration.” State Farm responded that the provisions of the UIM statute had not been triggered.

April 10, 2020

New Executive Order on Notarizing Documents

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

Tennessee’s Governor has issued Executive Order 26, which permits the remote notarization and witnessing of documents. The Executive Order outlines the procedure that must be followed for the remote notarization to be effective.

The Order is effective today but expires on May 18, 2020.

April 9, 2020

Where Can A Product Manufacturer Be Sued?

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

Under what circumstances can a product manufacturer be hauled into state court to defend a products liability claim when the injury occurred in that state ? Or, as put by Ford Motor Company in Ford Motor Company v. Montana Eighth Judicial District Court:

Whether the “arise out of or relate to” requirement for a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.

The United States Supreme Court has accepted Ford Motor Company v. Montana Eighth Judicial District Court for review, consolidating it with the Minnesota case of Ford Motor Corporation vs. Bandemer.