Day on Torts

November 20, 2019

Utilities Commission Had No Jurisdiction Over Negligence Suit

When a plaintiff brought a negligence action against two public utility companies for damages allegedly done to her real property when the gas was turned off and waters pipes subsequently froze and burst, the trial court erred by holding that the Tennessee Public Utility Commission (TPUC) had exclusive jurisdiction of the claim. In Jetter v. Piedmont Natural Gas Company, Inc., No. M2019-00206-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2019), plaintiff owned an unoccupied residence which was “damaged when frozen water pipes ruptured during the winter after gas service to the property was terminated.” Plaintiff filed this negligence suit, alleging that defendant public utility companies failed to provide her with proper notice of their actions and failed to “take proper steps to reconnect the service.” In her complaint, plaintiff cited certain TPUC rules that were allegedly violated by defendants.

Defendants filed a motion to dismiss, arguing that the TPUC “had exclusive and original jurisdiction over the claims at issue.” According to defendants, the TPUC rules cited by plaintiff in her complaint could only be enforced by the TPUC. Defendants also argued that the administrative remedy set up by the TPUC rules was not exhausted by plaintiff before she filed this suit.

The trial court agreed with defendant and dismissed the case, but the Court of Appeals reversed. Continue reading

November 5, 2019

Law Firms Made to Pay for Failure to Honor Medicare Subrogation

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

Medicare makes conditional payments to health care providers on behalf of its beneficiaries who are injured or killed and later assert personal injury or wrongful death claims. Federal law requires that the monies advanced by Medicare be paid back subject to a formula that allows for the reduction of the advanced, conditional payments for certain expenses incurred by the beneficiary in securing the funds. Occasionally, further reductions are granted. Law firms have the obligation to use reasonable efforts to determine if Medicare has made conditional payments and if so, work with Medicare to determine the proper amount of its gross and net financial interest and then ensure those monies are withheld from the proceeds and paid to Medicare.

The federal government has recently collected money from three plaintiff’s law firms for the alleged failure to do so. One firm was required to pay $28,000, another $250,000, and, most recently, another $90,000. It is unclear from the attached documents whether the payments in each case were entirely from firm funds or whether the payments also included client monies. It does seem clear, in the case involving the $28,000 payment, the monies came from the owner of the firm:

Under the terms of the settlement with the DOJ, the firm’s principal agreed to pay a lump sum of $28,000.00. In addition, the firm agreed to (1) designate a person responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance. In addition, the firm acknowledged that any failure to submit timely repayment of Medicare secondary payer debt may result in liability under the False Claims Act.

November 1, 2019

Defamation Claim Asserted by Public Figure

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

To defeat summary judgment on a defamation claim, a public figure needed to “produce clear and convincing evidence of actual malice at the summary judgment stage.” In Elsten v. Coker, No. M2019-00034-COA-R3-CV (Tenn. Ct. App. Oct. 4, 2019), plaintiff and defendant were both running for mayor of Hendersonville. Before the election, defendant’s campaign disseminated a pamphlet with two statements about plaintiff that plaintiff found objectionable: (1) that as an alderman plaintiff was “caught in an insider deal to sell stolen property to the Hendersonville Parks Department” and (2) that plaintiff was “currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner.”

Plaintiff filed this defamation action, and the trial court granted defendant summary judgment, finding that plaintiff “did not produce clear and convincing evidence of actual malice[.]” The Court of Appeals affirmed.

October 31, 2019

HCLA Statute of Limitations Started Before Plaintiff Consulted Expert

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

Where an HCLA plaintiff was aware of injuries suffered by a decedent and had been told by a nurse that she should look into the decedent’s care at the hospital, the statute of limitations began running well before an expert reviewed the decedent’s medical files and opined that the injury was caused by the hospital.

In Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019), plaintiff filed a wrongful death action under the HCLA based on the death of her father. The father had diabetes, and plaintiff had been caring for him for some time before he was admitted to the hospital. Plaintiff knew that her father required specific skincare to avoid the development of bed sores. When the father was admitted to defendant hospital, he had no sores, but on November 11, 2013, just 10 days after he was admitted, plaintiff discovered that he had two bed sores on his buttocks. He eventually needed two debridements to treat these sores.

October 5, 2019

Tennessee Supreme Court Overturns Application of Judicial Estoppel

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

Where a plaintiff had previously signed a marital dissolution agreement that stated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

October 4, 2019

Tennessee HCLA defendants required to identify other potential defendants.

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

Where HCLA (Tennessee medical malpractice) defendants knew that their hospital employer was a necessary party under the GTLA yet failed to identify them to plaintiff pursuant to Tenn. Code Ann. §29-26-121(a)(5), plaintiff was entitled to add the hospital under comparative fault statute when it was later identified in defendants’ answers. Plaintiff’s failure to give the hospital pre-suit notice did not change this result.

In Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff brought suit on behalf of his wife, who died after being treated, released, and treated again by defendants. Plaintiff gave proper pre-suit notice to the defendants named in his complaint, including two physicians, Dr. Colburn and Dr. Strait. Unbeknownst to plaintiff, both of these doctors were actually employed by Erlanger hospital at the time of the incident, and because Erlanger is a governmental hospital authority, this claim fell under the GTLA.

October 3, 2019

Fraud Affirmed Where Foundation Repair Company Found to Have Sold Useless Services

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

Where a foundation repair company was sold a set of products and services to a plaintiff that did not actually work to stabilize her home, and where the company made many misrepresentations about the services and the processes used, the Court of Appeals affirmed an award to plaintiff for fraud.

In Maddox v. Olshan Foundation Repair and Waterproofing Co. of Nashville, L.P., No. M2018-00892-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff had purchased a home in 2003 that was built on a steep lot. When she began noticing water issues, cracking in the bottom level, and felt the house was tilting, she called defendant foundation repair company. Defendant sent Kevin Hayman to plaintiff’s home, who was identified as a “certified structural technician.” Hayman recommended that plaintiff utilize three systems to stabilize her home: a “Cable Lock system to support the front part of the home’s foundation with pillars,” a Wall Lock system that would anchor the back wall to the ground behind it, and a Water Lock system that would allegedly address the home’s water issues. Each of the systems came with a “lifetime warranty.”

September 30, 2019

Fall Down Stairs Not Enough to Win – Need Causation

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

Where a plaintiff fell down stairs but could not identify what caused his fall, summary judgment should have been granted in a premises liability case.

In Cartee v. Morris, No. M2018-02272-COA-R9-CV (Tenn. Ct. App. Sept. 6, 2019), plaintiff worked for defendant, and part of his job entailed delivering checks to a two-story building that was a residence turned office space. On the day of the fall, plaintiff ascended the main wooden staircase to the second floor offices, and at the top of stairs an employee had placed a dog gate. According to affidavits from employees, the dog gate was not secured to the wall, but was instead simply propped up “so it could be easily moved,” and it was about one and half feet tall. Plaintiff did not recall how he got over the dog gate on his way up the stairs. After delivering the checks, plaintiff fell down the staircase, causing him to be unconscious for two days. Plaintiff did not remember the accident and could not remember what caused his fall. Two employees who were present on the second floor heard the fall, but neither of them witnessed the fall. They both testified that when they went to check on plaintiff after hearing the fall, he and the dog gate were on the landing.

September 27, 2019

Plaintiff’s Damages Not Limited By Amount Specified in Complaint

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

Where 23 months had passed between the filing of the complaint and the conversion of a truck, and where plaintiff sought “such other relief as he may be entitled to” in his ad damnum clause, the trial court did not err by awarding him a sum much larger than the amount specified in his complaint.

In Parker v. Clayton, No. M2017-02556-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2019), plaintiff filed a conversion claim related to his former friend taking possession of his truck. According to plaintiff, he and defendant had been friends for many years. When plaintiff was preparing to have surgery, he had to take time away from his work as a commercial truck driver. Around this time, defendant asked plaintiff for help getting his CDL. Plaintiff believed defendant already had some knowledge about operating a truck, so he offered to have defendant essentially work under him for a period of time with plaintiff’s former trucking employer, and plaintiff and defendant would split the profits made. To facilitate this arrangement, however, plaintiff had to add defendant’s name to his truck’s title. The title was changed to reflect both plaintiff and defendant as owners, and the transfer was noted as a gift by the clerk. According to plaintiff, the truck was to be titled back to plaintiff alone once defendant obtained his CDL. Plaintiff and defendant also opened a joint account in which money from their employer could be deposited and divided. Sometime during this time period, plaintiff took his RV to defendant’s property and began living there with defendant’s permission.

September 26, 2019

Tennessee Court Offers Insight on Judicial Estoppel

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

Where a plaintiff had previously signed a marital dissolution agreement that sated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”