New Case Concerning Motions to Dismiss Under Rule 12.02(6) of the Tennessee Rules of Civil Procedure and When a Duty Arises in Negligence Cases

The Tennessee Court of Appeals recently released its decision in Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020).  The syllabus from the slip opinion reads:

This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”), who was working as a plumber connecting a sewer line when the trench he was in collapsed and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design Builders, LLC, general contractors for the building project, alleging negligence. The trial court granted Focus Design’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court held that Focus Design did not owe a duty of reasonable care under the circumstances because Decedent’s death was unforeseeable. We hold the complaint states a cause of action for negligence and consequently reverse the judgment of the trial court.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/thompson.melanie.opn_.pdf.

NOTE: This is a great opinion because it gives us a good overview of the current state of the law on motions to dismiss under Rule 12.02(6), Tenn. R. Civ. P., and when a duty arises in negligence cases. 

New Case on Who Is Able to Bring a Tort Claim on Behalf of a Decedent Who Died Before Suit Is Filed from Causes Unrelated to the Tort Action in Question

The Tennessee Court of Appeals recently released its opinion in Jones v. Martin, No. W2019-02047-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2020).  The syllabus from the slip opinion reads:

Appellant and her son were driver and passenger, respectively, in a motor vehicle when they were struck in the rear by a vehicle driven by one of the Appellees. Appellant’s son later died from medical causes not related to the accident. Appellant then filed suit for injuries in her own name and as next of kin of her deceased son. Following arguments by the Appellees that Appellant had no authority to prosecute the case on behalf of her son, the trial court dismissed the claim corresponding to the injuries allegedly sustained by the son. Appellant then took a nonsuit of her remaining claim. This appeal concerns initially whether or not the judgment on appeal is a final judgment and, if so, the application of Tennessee Code Annotated section 20-5-102 to this case. Tennessee Code Annotated section 20-5-102, which provides for the survival of actions despite the death of the person wronged, specifies that the right of action shall pass “in like manner as the right of action described in § 20-5-106.” By way of that referenced authority, it is clear that a next of kin is one of the persons authorized to bring an action that survives under section 20-5-102. For the reasons set out herein, we conclude that we have jurisdiction to hear this appeal and reverse the trial court’s dismissal. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/jonesgloriaopn.pdf.

NOTE: As the title of this blog post indicates, this opinion does a good job of explaining who may bring a tort claim on behalf of a decedent who dies before suit is filed from causes unrelated to the tort action in question.  Pay attention to footnote 4 and its citation to Tenn. Code Ann. sec. 20-5-104; a prerequisite to being able to revive the tort suit via the deceased's heirs is that it be shown that no person will administer the deceased's estate.   (Be mindful, too, that any recovery made in instances like the one presented in this case is property of the deceased's estate.)  

New Health Care Liability Action Opinion: Dismissal of Claim Against Provider Upheld on Appeal Due to Improper Service of Presuit Notice of the Claim to the Provider

The Tennessee Court of Appeals recently released its opinion in Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020).  They syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against a long-term care facility. The trial court dismissed the complaint without prejudice because the plaintiff did not provide the long-term care facility with pre-suit notice of her claim as required by statute. The plaintiff argues that the notice she mailed to the facility’s administrator at the facility’s business address satisfied the statutory requirement. Because her letter was not directed to the facility, we affirm the dismissal of her complaint. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/webb.judy_.opn_.pdf.

NOTE: This opinion emphasizes the importance of proper service of presuit notice of a potential health care liability action claim.  It is very difficult to do that a lot of the time due to one not being able to determine what entity is the correct one to send notice to before suit is filed.  However, in this instance, it appears that the procedure set out under Tenn. Code Ann. sec. 29-26-121(a)(3)(B)(ii), which governs notice that must be sent to "a health care provider that is a corporation or other business entity," was not followed.        

New Opinion on Prejudgment Interest in Uninsured Motorist Cases: Propriety of Prejudgment Interest to Be Determined by the Trial Court on Remand

The Tennessee Court of Appeals recently released its opinion in Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

Appellant was injured in an automobile accident, and a jury found that an unknown motorist was 100% at fault and awarded damages in favor of Appellant. Thereafter, the trial court denied Appellant prejudgment interest on its finding that Appellant’s uninsured automobile insurance policy with Appellee State Farm Mutual Automobile Insurance Company precludes an award of prejudgment interest. We conclude that the policy language “all damages” is sufficiently broad to include prejudgment interest. However, because the award of prejudgment interest is an equitable consideration within the discretion of the trial court, we decline to address Appellant’s issue concerning whether prejudgment interest is necessary and equitable in this case. This question is remanded to the trial court. Vacated and remanded.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/lewisalvinopn.pdf.

NOTE: This opinion offers a good analysis of prejudgment interest in a uninsured-motorist case.  

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case (Erroneously?) Upheld on Appeal Due to Defective HIPAA-compliant Authorizations

Yesterday, the Tennessee Court of Appeals released its opinion in Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The defendants moved to dismiss the complaint due to the plaintiff’s failure to comply with Tennessee Code Annotated section 29-26- 121(a)(2)(E), arguing that the plaintiff had not provided them HIPAA compliant medical authorizations allowing them to receive medical records from the other providers being sent statutorily-required pre-suit notice. The trial court agreed with the defendants’ argument and, upon observing that the plaintiff was not entitled to rely on the 120-day extension of the statutory limitation period pursuant to Tennessee Code Annotated section 29-26-121(c), held that the complaint was time-barred and should be dismissed with prejudice. Discerning no error, we affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/dialjudithopn.pdf.

NOTE: I think this opinion missed something, respectfully, because the defendants could have actually gotten the decedent's protected health information without a authorization at all as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.