Search This Blog

Wednesday, March 16, 2016

New Tennessee Supreme Court Opinion on the Saving Statute

On March 7, 2016, the Tennessee Supreme Court issued its opinion in Circle C Construction, LLC v. D. Sean Nilsen, No. M2013-02330-SC-R11-CV (Tenn. Mar. 7, 2016).  The summary from the majority opinion states as follows:
The issue we address is whether the savings statute applies to save an action that was filed within the extended statute of limitations set by a tolling agreement, was voluntarily nonsuited, and was refiled within one year, but after the extended statute of limitations in the tolling agreement. The trial court granted summary judgment, ruling that the case was not timely filed. The Court of Appeals affirmed, holding that the tolling agreement precluded application of the savings statute. We hold that the party filing the suit complied with the tolling agreement by filing the first suit within the extended statute of limitations set by the agreement. The savings statute applies to save the action; therefore, the refiled suit was timely filed. We reverse the decision of the Court of Appeals and remand this case to the trial court.
Here is a link to the majority opinion:

Here is a link to Justice Kirby's opinion where She concurs in part and dissents in part:

NOTE: This is a good read for the Tennessee practitioner.

Saturday, March 12, 2016

New Wrongful Death Opinion: Hataway Redux

On March 11, 2016 the Tennessee Court of Appeals issued its opinion in Sterchi v. Savard, No. E2015-00928-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2016).  This opinion involves a wrongful death case where the death actually occurred in Florida but suit was filed here in Tennessee.  It serves as a reminder that Tennessee abandoned the doctrine of lex loci delicti in Hataway v. McKinley, 820 S.W.2d 53 (Tenn. 1992) and adopted the "most significant relationship" approach when determining what substantive law applies when a conflict of law arises as described herein.  

The summary from the majority opinion states as follows:
This appeal concerns a conflict of law choice between Tennessee and Florida law.  James R. Sterchi, Jr. (“Mr. Sterchi”) sued L. Basil Savard (“Mr. Savard”) in the Circuit Court for Bradley County (“the Trial Court”) for the wrongful death of Mr. Sterchi’s mother Rosalind Savard (“Mrs. Savard”) in a car accident in Florida.  Mr. Savard filed a motion for summary judgment. Florida law prevents Mr. Sterchi from pursuing his claim while Tennessee law does not.  All interested parties were domiciled in Tennessee.  The Trial Court held that Florida law applies and granted Mr. Savard’s motion for summary judgment.  Mr. Sterchi filed an appeal to this Court.  We hold that under “the most significant relationship” test as adopted by our Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), Tennessee has the more significant relationship to the occurrence and parties in this case, and, therefore, Tennessee substantive law applies to Mr. Sterchi’s wrongful death action. We reverse the judgment of the Trial Court.
Here is a link to the majority opinion:

Here is a link to Judge Frierson's concurring opinion (which deals with the applicability of Tenn. Code Ann. sec. 20-16-101):

Tuesday, March 01, 2016

Tenth Anniversary!

This post is a little belated, but, as of January of this year, this blog is ten years old!  

Doesn't seem like it's been a decade already.  Whew!

Thanks to all of you who read this blog and email me with questions, comments, etc

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to One Defendant Reversed on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals just issued its opinion in Rogers v. Blount Mem'l Hosp., Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016).  The summary from the opinion states as follows:
This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity. The court subsequently granted summary judgment to the defendant doctor based on the statute of limitations. The plaintiff timely appealed. Determining that a genuine issue of material fact exists regarding when the plaintiff was aware of facts sufficient to place him on notice that his injury was allegedly the result of the defendant doctor's wrongful conduct, we conclude that summary judgment was improperly granted to the defendant doctor. We affirm the trial court‟s grant of summary judgment in favor of BMHI.
Here is a link to the opinion:

Just Swiney issued a separate concurring opinion also, which can be found at this link:

NOTE: This opinion offers a good discussion of the discovery rule in health care liability actions.