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Tuesday, November 04, 2014

Offer of Judgment Made under Tenn. R. Civ . P. 68 Held to Be Irrevocable During Ten-day Period

The Tennessee Court of Appeals released its opinion Friday in McGinnis ex rel. McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014).  The summary from the opinion states as follows:
Plaintiffs presented Defendants with an offer of judgment pursuant to Rule 68 of the Tennessee Rules of Civil Procedure. Prior to Defendants’ acceptance, Plaintiffs attempted to rescind the offer. Defendants nevertheless accepted the offer within the time allowed by Rule 68 and attempted to enforce the offer of judgment. The trial court concluded that Plaintiffs were not entitled to revoke the offer of judgment and entered an order granting the motion to enforce the judgment. We affirm and remand.
Here is a link to the slip opinion:

NOTE: the ten-day life of an offer of judgment can be extended via Rule 6 of the Tennessee Rules of Civil Procedure.  This is all the more reason that one must be very careful before making an offer of judgment under Rule 68.

Monday, November 03, 2014

New Health Care Liability Action Opinion: 120-day Extension to Statute of Limitations Applies to Governmental Entities

The Eastern Section of the Tennessee Court of Appeals released its opinion last week in Harper v. Bradley Cnty., No. E2014-00107-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014).  The summary from the slip opinion states as follows:
The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.
(Emphasis and italics in original.)

Here is a link to the opinion:

NOTE: This post should be read with my May 9, 2013 post discussing the Cunningham case cited in the summary above (with its footnotes foreshadowing this decision).  Here is a link to that post: 

Further, this is a must-read opinion for any lawyer who handles health care liability cases (f.k.a. medical malpractice cases).  If this case is taken up by the Tennessee Supreme Court, which is very likely, the Court will more than likely affirm the trial court as the lower appellate court did.  It is the correct decision in my humble opinion.

Lastly, it would be a safe assumption for one to think that the three-year statute of repose would be extended by 120 days via the 2011 amendment to Tenn. Code Ann. sec. 29-26-101, too. Compare Harper, supra, with T.C.A. § 29-26-121(c).  However, I am not aware of any case holding that way at this time.