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Wednesday, June 22, 2022

Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Her Counsel's Failure to Make a Proper Substitution for Her After She Died from Causes Unrelated to the Complained-of Injuries

 The Tennessee Court of Appeals has released its opinion in Cunningham v. Fresenius Medical Care, Inc., No. M2021-01087-COA-R3-CV (Tenn. Ct. App. June 22, 2022). The syllabus from the slip opinion reads:

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/barbara.cunningham.opn_.pdf.

NOTE: This case serves as a cautionary tale of what happens when a party to a lawsuit dies during the pendency of the action from causes unrelated to the complained-of injuries and a motion to substitute is not filed within ninety-days of the filing of a suggestion of death. What I am not sure about is why did Plaintiff's counsel file the suggestion of death. It was not necessary. Once it was filed, however, Plaintiff's counsel was put "on the clock" and had ninety days to get a motion for substitution filed under Rule 25.01 of the Tennessee Rules of Civil Procedure (or move for an enlargement of time). The quick takeaways from this opinion are: (1) Counsel for a plaintiff does not need to file a suggestion of death when a client dies; (2) a motion for substitution under Rule 25.01 should be filed within ninety days of the filing a suggestion of death; and (3) if a motion for substitution cannot be filed within ninety days of the filing of a suggestion of death, a motion seeking an enlargement of time should be filed under Rule 6.02 of the Tennessee Rules of Civil Procedure. 

Thursday, June 16, 2022

New Health Care Liability Action Opinion: Motion for Extension of Time to File a Certificate of Good Faith Is Governed under "Good Cause" Standard, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Vickers v. Diversicare Leasing Corp., No. M2021-00894-COA-R3-CV (Tenn. Ct. App. June 13, 2022). The syllabus from the slip opinion reads:

A nursing home resident commenced this health care liability action after she had 18 teeth extracted, after which she suffered excessive bleeding. Before suing, the plaintiff’s daughter, acting as her mother’s attorney in fact, provided each prospective defendant with a form that purported to authorize the release of the plaintiff’s health information as required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff filed her complaint and a certificate of good faith as required by § 29-26-122(a). The defendants responded by moving to dismiss the complaint, arguing that the pre-suit authorizations were invalid because the daughter lacked the authority to make “health care decisions” for the plaintiff. The trial court denied the motions, finding the general power of attorney authorized the daughter to release the plaintiff’s medical records. After the plaintiff filed an amended complaint to add a claim for lack of informed consent, the defendants moved to dismiss all claims set forth in the amended complaint based on the plaintiff’s failure to file a new certificate of good faith. The plaintiff argued that a new certificate was unnecessary; nevertheless, she moved for an extension of time to comply. Following a hearing, the court found that a new certificate of good faith was required by § 29-26-122(a) because the amended complaint asserted a new claim. The court also denied the plaintiff’s motion for an extension of time to comply on the ground that the plaintiff failed to establish “extraordinary cause” to justify an extension. Based on these findings, the court granted the defendants’ motions to dismiss all claims. This appeal followed. We agree that a new certificate of good faith was required; however, we find that the trial court applied an incorrect legal standard to deny the motion for an extension of time in which to comply. This is because the standard applicable to a motion for an extension of time to comply is “good cause,” not “extraordinary cause,” and good cause is a less exacting standard than extraordinary cause. See Stovall v. UHS Lakeside, LLC, No. W2013-01504- COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015). Accordingly, this issue, along with the trial court’s decision to dismiss the entire amended complaint, are vacated and remanded for further consideration by the trial court. As a result, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/estate.of_.jennifer.d.vickers.opn_.pdf.

NOTE: This is an informative read for any lawyer who handles Tennessee health care liability actions (f/k/a medical malpractice cases). It lets one know when an new certificate of good faith is needed and how that is to be handled if not filed with the complaint or an amended complaint (under a "good cause" standard), etc. It also offers a great analysis of when an attorney-in-fact may authorize the release of a principal's medical records via a general power of attorney in these types of cases. 

Saturday, June 04, 2022

A Tenn. Claims Commission-Case Consolidated with a Governmental Tort Liability Act-Case in Circuit Court: Trial Court's Denial of State's Motion for Summary Judgment Upheld on Appeal Due to State's Nondelegable Duty to Inspect and Maintain State Highways

The Tennessee Court of Appeals has released its opinion in Polhamus v. State, No. E2021-01253-COA-R9-CV (Tenn. Ct. App. June 2, 2022). The opinion's syllabus reads:

This case arises from a single-vehicle motorcycle accident at the intersection of State Route 1 and State Route 36 within the city limits of Kingsport, Tennessee. The cyclist contends the accident was caused by the failure of the State of Tennessee and the City of Kingsport to properly maintain the state highways; specifically, he alleges that their failure to repair a pothole caused the accident. The plaintiff filed a claim against the State with the Tennessee Division of Claims Administration, and shortly thereafter he commenced this action against the City in the Sullivan County Circuit Court. The claim against the State was later transferred and consolidated with the action against the City. Both the State and the City claimed immunity and moved for summary judgment. The State asserted that it had immunity because the City contractually agreed to maintain the highways where the accident occurred. The City asserted that it had immunity because the State owned the highways where the accident occurred. The trial court granted summary judgment in favor of the City upon the finding the City had immunity because it did not “own” the state highways; however, it denied the State’s motion because “[t]o hold that both the State and the City [were] immune from suit would be against public policy.” We granted this interlocutory appeal to address whether the State owed a duty to the plaintiff even though it contracted with the City to maintain the highways where the plaintiff’s accident occurred. Having closely reviewed the State’s contract with the City of Kingsport, we find nothing in the contract or in Tennessee Code Annotated §§ 54-5-201 and -203 that authorizes the State to delegate its responsibilities under § 9-8-307(a)(1)(I) “to exercise reasonable care under all the attendant circumstances in . . . maintaining the State system of highways” and (J) for “[d]angerous conditions on state maintained highways.” On the contrary, and as § 54-5-201 expressly provides, “the state’s obligation for maintenance of its system of highways shall be governed by those limitations now set out by law, it being the intent of this section neither to enlarge nor to diminish present obligations for this maintenance.” Because the State bears the ultimate responsibility for inspecting and maintaining state highways, we find the contract did not absolve the State of potential liability for failing to do so. Therefore, we affirm the trial court’s decision.

The slip opinion can be found at this link: 

https://www.tncourts.gov/sites/default/files/e2021-1253_polhamus_v._state.pdf.

NOTE: This opinion is one of the rare ones discussing the state's liability under the Claims Commissions Act and how that interacts with a municipality's liability under the Governmental Tort Liability Act.  It discusses the state's liability due to a nondelegable statutory duty imposed on it "to inspect and maintain state highways." Polhamus, No. E2021-01253-COA-R9-CV, slip op. at 7. A must-read decision for any lawyer who handles these types of cases.


Wednesday, May 25, 2022

New Health Care Liability Action: Trial Court's Denial of Dismissal Upheld on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals has released its decision in Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV (Tenn. Ct. App. May 25, 2022). The opinion's syllabus reads:

This interlocutory appeal arises from a health care liability action. The defendant filed a motion to dismiss based on the statute of limitations. In response, the plaintiff invoked the discovery rule and argued that his claim was timely filed after he learned the identity of the defendant. The plaintiff submitted an affidavit of counsel in an effort to detail the due diligence undertaken by the plaintiff to ascertain the identity of the defendant. Upon considering the affidavit, the trial court denied the defendant’s motion to dismiss. However, the trial court granted permission for the defendant to seek an interlocutory appeal. This Court granted the defendant’s application. We now affirm the trial court’s order and remand for further proceedings. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/archerstevenopn_0.pdf.

NOTE: This decision offers up a great explanation of the current state of the discovery rule in health care liability actions (HCLA)  (f/k/a medical malpractice cases). It is a must-read case for any lawyer who handles HCLAs under Tennessee substantive law. 

New Health Care Liability Action: Trial Court's Dismissal of the Lawsuit as a Nullity Upheld on Appeal Because Suit Was Filed in the Name of the Deceased Plaintiff

The Tennessee Court of Appeals has released its opinion in Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022). The syllabus from the opinion reads:

Appellant appeals the trial court’s dismissal of this cause of action on the basis that it was filed by a deceased plaintiff and therefore a nullity that could not be corrected via amendment. We affirm.

Here is a link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/dennis.owen_.opn_.pdf.

NOTE: To boil this opinion down to its essence, a personal injury lawsuit (not a wrongful death suit) that is filed on behalf of a deceased plaintiff is a nullity and void ab initio; it is of no consequence and that error cannot be remedied via substitution of a proper representative plaintiff after the statute of limitations has run.

Tuesday, May 24, 2022

New Health Care Liability Action: Trial Court's Dismissal of Plaintiffs' Claims Upheld on Appeal Due to Statutorily Defective Presuit Notice Given to Defendant

Today, the Tennessee Court of Appeals issued its decision in Breithaupt v. Vanderbilt University Medical Center, No. M2021-00314-COA-R3-CV (Tenn. Ct. App. May 24, 2022). The syllabus from the slip opinion reads:

This appeal is a health care liability case involving issues of pre-suit notice and the statutory requirements under Tennessee Code Annotated section 29-26-121. The trial court denied the plaintiff’s motion for partial summary judgment; granted the defendant’s motion for summary judgment; and dismissed the plaintiff’s claims with prejudice after determining she failed to give the defendant pre-suit notice in compliance with Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/jack.breithaupt.opn_.pdf.

NOTE: This opinion demonstrates the harsh and unfair effects of noncompliance with the statutory presuit notice requirements. 

Tuesday, May 10, 2022

Trial Court's Denial of Leave to Amend a Defendant's Pleading to Add a Cross-claim Reversed on Appeal

The Tennessee Court of Appeals has issued its opinion in Roach v. Moss Motor Co., Inc., No. M2021-00511-COA-R3-CV (Tenn. Ct. App. May 6, 2022). The syllabus from the slip opinion, which is short and sweet, reads: "The trial court denied a defendant’s motion to amend to include a cross-claim against another defendant. We reverse."

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/rita.a.roach_.opn_.pdf.

NOTE: If you are a civil procedure junkie like I am, this opinion is a little slice of heaven because it offers a great analysis of multiparty litigation via consolidation coupled with the amendment of pleadings, etc. It also offers up a rare look at the application of Tennessee Code Annotated section 28-1-114(a) (which sets the timeliness of a cross-claim, inter alia, on the timeliness of the (original) complaint filed in a civil action). Any lawyer who is handling any civil action in a Tennessee state court should read this opinion. 

Friday, April 22, 2022

Summary Judgment for Defense Reversed on Appeal Because Trial Court Did Not Follow the Proper Procedure in Granting Summary Judgment

The Tennessee Court of Appeals has released its decision in Auto Owners Insurance v. Thompson, No. W2021-00268-COA-R3-CV (Tenn. Ct. App. Apr. 21, 2022). The syllabus from the slip opinion reads:

The plaintiff challenges the trial court’s order granting the defendant’s Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss as a Tennessee Rule of Civil Procedure 56 motion for summary judgment and dismissing the plaintiff’s cause of action with prejudice. The trial court granted the defendant’s motion both as a Rule 12.02(6) motion to dismiss and as a Rule 56 motion for summary judgment despite stating in its order that it had not excluded extraneous evidence presented by the defendant and that it would treat the motion as one for summary judgment. We conclude that the trial court erred by granting the defendant’s motion as a Rule 12.02(6) motion to dismiss after having considered extraneous evidence and that the trial court erred by failing to include in its order the legal grounds for its decision to grant the defendant’s motion as a Rule 56 motion for summary judgment. Inasmuch as the plaintiff failed to file a proposed amended complaint in the trial court, we are unable to address the issue raised concerning the motion to amend the complaint. We vacate the trial court’s order and remand for further proceedings consistent with this opinion and Rule 56.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/autoownersinsuranceopn.pdf.

NOTE: There is a lot going on in this opinion but the gist of it is that the trial court converted the defendant's motion to dismiss to one for summary judgment and then it did not comply with the Tennessee Rules of Civil Procedure in granting summary judgment. 

This opinion does a good job of summing up the current standard or review applicable to motions for summary judgment in a Tennessee state court. Accordingly, this is a must-read case in my opinion.

As an aside, the plaintiff could have amended its complaint as a matter of right before an answer was filed and while the motion to dismiss was pending because a motion to dismiss is not a responsive pleading that would prevent amendment as of right under Rule 15 of the Tennessee Rules of Civil Procedure. (It does not appear that the plaintiff in this case was aware of that fact.) Adams v. Carter Cnty. Mem'l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion is not a responsive pleading that would prevent an amended complaint from being filed as a matter of right under Rule 15); Vincent v. CNA Ins. Co., No. M2001-02213-COA-R9-CV, 2002 Tenn. App. LEXIS 907, 2002 WL 31863290, at *5 n.4 (Tenn. Ct. App. Dec. 23, 2002), (same).