Trial Court's Judgment in Favor of Plaintiffs in this Auto Tort Case Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Kindred v. Townsend, No. W2021-01481-COA-R3-CV (Tenn. Ct. App. Dec. 7, 2022). The syllabus from the slip opinion reads:

This negligence action arises from the collision of Plaintiff/Appellee’s Mercedes convertible with a tractor-trailer operated by Defendant/Appellant in the scope of her employment. The trial court determined that Appellant was more than 50 percent at fault for the accident and apportioned 75 percent fault to Appellant and 25 percent fault to Plaintiff/Appellee. The trial court also determined that Defendant/Appellant employer was vicariously liable for the damages awarded. Discerning no error, we affirm the judgment of the trial court.

The opinion can be found here:

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

NOTE: This is a good opinion for any Tennessee trial lawyer to read because it reminds us of the impact of forensic evidence at trial, the record on appeal, etc. It is just a good reminder in my humble opinion. 

New Health Care Liability Action: Dismissal of Complaint Against Hospital Upheld on Appeal Because Case Was a "Health Care Liability Action" (HCLA) as Defined by Tennessee Law and the Requirements for Filing a HCLA Were Not Met by Plaintiffs

The Tennessee Court of Appeals released its decision in Forsythe v. Jackson Madison Cnty. Gen. Hosp. Dist., No. W2021-01228-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2022). The syllabus from the opinion reads:

The trial court granted the defendant medical providers summary judgment on the basis of the plaintiff’s failure to comply with the Tennessee Health Care Liability Act’s pre-suit notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the defendants, argues that her claim does not relate to the provision of health care services and that she was therefore not required to give pre-suit notice or file a good faith certificate. Because we conclude that the trial court did not err in determining that the claim is related to the provision of health care services, we affirm.

Here is a link to the slip opinion: 

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

NOTE: This decision demonstrates how broad the definition of a "health care liability action" (HCLA) can be under Tenn. Code Ann. sec. 29-26-101(a)(1). When it doubt, treat these iffy cases like they are HCLAs—just to be safe.  

New Health Care Liability Action Opinion: Dismissal of Complaint Upheld on Appeal Because Proper Action Was Not Taken Before Statute of Limitations Expired

The Tennessee Court of Appeals has released its opinion in Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2022). The syllabus form the slip opinion reads: 

Patient, by next of kin, sued hospital alleging negligence during his treatment. Trial court granted hospital’s motion to dismiss based on patient’s failure to file the complaint prior to the expiration of the statute of limitations. Patient appealed the dismissal. Because the trial court correctly determined that the statute of limitations commenced running when the patient was discharged, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/thomas_w._jackson_deceased_by_next_of_kin_latisha_jackson_v._vanderbilt_university_medical_center_-_m2022-00476-coa-r3-cv.pdf.

NOTE: This case reminds us of what needs to be done to ensure that a health care liability action is timely filed. 

New Health Care Liability Action Opinion: Summary Judgment for Defense Upheld on Appeal Because Plaintiff's Expert Was Not Qualified to Render an Opinion under the Locality Rule

The Tennessee Court of Appeals has issued its opinion in Jackson v. Thibault, No. E2021-00988-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2022). The syllabus from the slip opinion reads:

Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial court to exclude the expert. Additionally, we affirm the grant of summary judgment to defendants. 

Here is the link to the opinion:

https://www.tncourts.gov/sites/default/files/e2021-00988_jackson_v._thibault.pdf.

NOTE: This case offers a good discussion of what it takes for an expert to be able to render an opinion in a health care liability action and the current state of summary judgment practice. 

New Health Care Liability Action Opinion: Summary Judgment for Physician Upheld on Appeal Due to Her Being an Employee of the University of Tennessee and Immune from Suit

The Tennessee Court of Appeals has released its opinion in Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV (Tenn. Ct. App. Oct. 20, 2022). The syllabus from the opinion reads:

This appeal involves a healthcare liability action. The plaintiff sued a physician who had interpreted the results of her fetal ultrasound. The physician was employed by a Tennessee state university as a professor. Her job duties included both educational responsibilities and clinical care to patients in the residency clinics. The trial court granted summary judgment in favor of the physician, finding that she had received no personal gain by her act of interpreting the ultrasound. Therefore, the physician possessed absolute immunity under the Tennessee Claims Commission Act for her actions within the scope of her state employment. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/alexandrea_parker_v_jeanie_d._dassow_m.d..pdf.

NOTE: This opinion offers a great discussion of Tennessee's current summary judgment standard and physician immunity in a health care liability action (née medical malpractice case) when the physician is a state employee only not acting for personal gain. 

New Health Care Liability Action Opinion: Summary Judgment for Hospital that Was a Governmental Entity Upheld on Appeal Because It Could Not Be Held Vicariously Liable for the Negligence of Nonemployee Physicians

The Tennessee Court of Appeals released its opinion Howell v. Chattanooga-Hamilton County Hospital Authority, No. E2021-01197-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2022). The syllabus from the slip opinion reads: 

This appeal involves a healthcare liability action. The plaintiffs filed suit against the defendant hospital, which is a governmental entity, alleging negligence by physicians practicing medicine within the hospital emergency department. The supervising physician was not an employee of the defendant hospital but an employee of a company contracting with the defendant hospital. The medical resident physician and medical student treating the patient in the emergency department also were not employees of the defendant hospital. During summary judgment proceedings, the plaintiffs presented no evidence of direct liability by the defendant hospital or of negligence by the nursing staff at the defendant hospital. Plaintiffs presented such evidence only as to physicians not directly employed by the defendant hospital. Determining that the physicians were not employees of the defendant hospital, the trial court held that the defendant hospital could not be held vicariously liable for the actions of these non-employee physicians under the Governmental Tort Liability Act []. As such, the trial court granted summary judgment in favor of the defendant hospital. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/jefferson_howell_v._chattanooga_hamilton_county_hospital.pdf.

NOTE: The bottom line from this opinion is this: a hospital cannot be held vicariously liable for the actions of nonemployee physicians under the Governmental Tort Liability Act.

Summary Judgment for a Defendant Upheld on Appeal: Trial Court Found that Movant Did Not Owe a Duty of Care to Injured Plaintiff

The Tennessee Court of Appeals has released its opinion in Lynch v. Poe, No. M2021-00867-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2022). The syllabus form the slip opinion reads:

This is a multi-party premises liability and general negligence action among a roofer who fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and the scaffolding company that rented the scaffolding to the homeowner, but did not erect the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then bounced over to the scaffolding before falling to the ground. The complaint also alleged that had a safety rail been installed on the scaffolding it could have prevented the roofer’s fall. The homeowner filed an answer denying liability and alleging comparative fault against the scaffolding company. Consequently, the roofer filed an amended complaint adding the scaffolding company as a codefendant. After discovery, the scaffolding company filed a motion for summary judgment, alleging that it owed no duty to the roofer or the homeowner because it had no control over the premises nor actual or constructive notice of a dangerous condition on the premises. The roofer and homeowner opposed the motion contending, inter alia, that this is a case of general negligence against the scaffolding company because the homeowner relied on the scaffolding company for guidance during the installation process and the scaffolding company assumed the duty of care to ensure the scaffold was installed safely. They also contend that summary judgment was not appropriate because material facts are in dispute. The trial court summarily dismissed all claims against the scaffolding company, and this appeal followed. We find that the material facts are not in dispute and that the scaffolding company was entitled to summary judgment as a matter of law on claims sounding in premises liability and general negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding company.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/david_lynch_sr._et_al._v._bradley_e._poe_et_al._-_m2021-00867-coa-r3-cv.pdf.

NOTE: This opinion offers an excellent discussion of the current state of the law on summary judgment procedure and of the elements of a premises liability and a general negligence. For the practitioner whose case involves any of these matters this is a must-read decision in my humble opinion. 

New Health Care Liability Action Opinion: Trial Court's Denial of Defense's Motion to Dismiss Based on a Finding of "Excusable Neglect" Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Moxley v. Amisub SFH, Inc., No. W2021-01422-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2022). The syllabus reads:

In this interlocutory appeal of a health care liability action, the only issue for review is whether the trial court erred in denying the defendants’ motions to dismiss based on its finding that “extraordinary cause” existed to excuse the plaintiff’s failure to comply with the statutory pre-suit notice requirem)nts. For the following reasons, we reverse and remand for further proceedings.

Here is a link to the slip opinion: 

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

NOTE: There is subsequent history to this case. Moxley v. Amisub SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2024). This latest opinion has been designated as a "MEMORANDUM OPINION" and "shall not be cited or relied on for any reason in any unrelated case." Id., slip op. at 2, fn. 1. Despite that designation, it still sheds light on the history of Moxley. 

New Health Care liability Action Opinion: Summary Judgment for Physician Reversed on Appeal Because the Trial Court Abused Its Discretion in Not Allowing Plaintiff to Obtain a New Standard-of-care Expert When that Expert Refused to Testify Through No Fault of Plaintiff, Etc.

The Tennessee Court of Appeals has issued its opinion in Blackburn v. McClean, No. M2021-00417-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/blackburn_v.mclean.pdf.

NOTE: The primary takeaway from this opinion is that it was an abuse of discretion by the trial court to not allow the plaintiff to obtain a new standard-of-care expert when the former expert in this area became unavailable through no fault of the plaintiff, which jibes with Tennessee's policy of deciding cases on their merits and not in procedural technicalities. The secondary takeaway is that the trial court also abused its discretion in severely limiting expert testimony that the plaintiff could offer to rebut a newly pleased defense based on the decedent's alleged comparative fault. Both of these abuses required reversal and a remand. 

P.S. This is the second appeal in this case. The first one is the subject of my from Aug. 1, 2020-post, to wit: http://theduncanlawfirm.blogspot.com/2020/08/new-case-on-certification-of-nonfinal.html.

Clarification Offered on Attorney's Fees Awarded under Tenn. Code Ann. sec. 20-12-119(c) upon the Granting of a Motion to Dismiss under Tenn. R. Civ. P. 12.02(6)

The Tennessee Court of Appeals has issued its opinion in Thomson v. Genesis Diamonds, LLC, No. M2021-00634-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12- 119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/michael.thomson.opn_.pdf.

NOTE: This opinion offers insight into attorney's fees under sec. 20-12-119(a), discretionary costs,  and appellate practice. It is of significance as to the first matter and instructs the bench and the bar that fees under -119(c) are only for the work done on the claims dismissed, to wit:

We hold that the limited scope of Tenn. Code Ann. § 20-12-119(c) allows an award of attorney’s fees only for the tasks performed regarding the claims that were actually dismissed by the Trial Court for failure to state a claim upon which relief can be granted. Therefore, we vacate the Trial Court’s award of attorney’s fees and remand to the Trial Court for recalculation of the attorney’s fee award in this case in compliance with our Supreme Court’s opinion in Donovan and this opinion. During remand, the Trial Court should consider the factors in Tenn. Sup. Ct. R. 8, Rule of Professional Conduct 1.5(a) when determining whether the award of attorney’s fees is reasonable and necessary. See Donovan, 2022 WL 2301177, at *6 n.13 (“Rule of Professional Conduct 1.5 sets forth the ‘correct legal standard’ when assessing the reasonableness of a cost and fee request.”). Further, in compliance with Donovan, the Trial Court on remand should consider Defendant’s request for attorney’s fees incurred prior to the amended complaint only to the extent that the claim or claims were pled by Plaintiff prior to the amended complaint and defense counsel’s fees prior to the amended complaint involved those specific claims that were dismissed pursuant to Tenn. R. Civ. P. 12.02(6).

Thomas, supra, at 12.

Summary Judgment for the Defense Affirmed on Appeal: Trial Court's Determination that No Duty of Care Existed Stands

The Tennessee Court of Appeals has issued its decision in Tino v. Walker, No. M2021-01230-COA-R3-CV (Tenn. Ct. App. July 18, 2022). The syllabus from the slip opinion reads:

In this premises liability case, the plaintiff appeals the trial court’s order granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint with prejudice. The plaintiff contends that the trial court erred by determining that the divot in the brick step that caused her to trip and fall amounted to a minor aberration and that, as a result, the defendants did not owe her a duty of care. Discerning no reversible error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/kathy.tino_.opn_.pdf.

NOTE: This opinion does a good job setting forth the current state of summary judgment jurisprudence in Tennessee as well as the law on duty of care in a premises liability case. I would submit that this is a must-read decision for any lawyer handling premises liability cases in Tennessee.  

New Laws Effective in Tennessee on July 1, 2022

Here is an abstract of the new laws that went into effect in Tennessee on July 1, 2022, to wit:

https://www.capitol.tn.gov/Archives/Joint/publications/EffectiveDate_2022-07.pdf

Dismissal of Plaintiffs' Claims (Sounding in Tort) Reversed on Appeal Because They Were Permissive Counterclaims and Not Barred by Res Judicata

The Tennessee Court of Appeals has issued its decision in Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022). The syllabus from the slip opinion reads:

This appeal requires us to consider the defense of res judicata in the context of two separate lawsuits filed by parties who were in a car accident. Following the car accident, the first lawsuit was filed and settled by agreement of the parties. An agreed judgment was entered dismissing the first lawsuit. Subsequently, the defendant from the initial lawsuit and her husband filed suit against the former plaintiff, alleging various causes of action sounding in tort. The trial court dismissed the second case, finding that all of the claims were barred by res judicata. The defendant in the initial suit and her husband—the plaintiffs in the second suit—appealed the dismissal of their lawsuit. We find that the tort claims alleged in the second suit were not compulsory counterclaims under Tenn. R. Civ. P. 13.01, and were not claims that would nullify the initial action or impair rights established in the initial action; therefore, we hold that the doctrine of res judicata does not bar those claims. The judgment of the trial court dismissing the case is reversed, and the case is remanded for further proceedings.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/lori.albers.opn_.pdf.

NOTE: This is a very interesting read for any civil procedure nerd like me. It offers up a great discussion of the tort exception under Rule 13 of the Tennessee Rules of Civil Procedure (which does not exist under its federal counterpart) and how tort claims are not barred under res judicata because they are generally permissive and not compulsory counterclaims. 

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. 

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. 

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.

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.

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. 

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. 

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).

Trial Court's Denial of Motion Seeking Recusal Reversed on Appeal Due to Judge's Internet Activity

The Tennessee Court of Appeals has released its opinion in Clay County v. Purdue Pharma, L.P., No. E2022-00349-COA-T10B-CV (Tenn. Ct. App. Apr. 20, 2022). The syllabus from the slip opinion reads:

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the denial of a motion that sought the disqualification of the trial court judge. As explained herein, because we conclude that concerns contributing to an appearance of partiality necessitate the trial judge’s recusal, we reverse. In addition, we vacate an order on substantive matters that was signed by the trial judge while the recusal motion was pending.

Here is a link to the 

opinion: https://www.tncourts.gov/sites/default/files/clay_county_et_al._v._purdue_pharma_l.p.____opinion.pdf.

NOTE: This is the first opinion I have ever posted on a recusal. It is worth reading in my humble opinion because it touches on the importance of fair trials and the appearance of impropriety in judicial proceedings. 

New Tennessee Health Care Liability Action Opinion: The Denial of the State's Motion to Dismiss Reversed on Appeal Due to a Defective Certificate of Good Faith Being Filed to Support the Claim

The Tennessee Court of Appeals has released its opinion in Gilbert v. State, E2021-00881-COA-R9-CV (Tenn. Ct. App. Apr. 14. 2022). The syllabus from the slip opinion reads: 

This appeal relates to a healthcare liability action, The Claims Commission denied the State’s motion to dismiss based upon the claimants’ failure to satisfy the requirements of Tennessee Code Annotated section 29-26-122 [(which concerns certificates of good faith that must be filed to support claims where expert testimony is required)]. We reverse the trial court and remand for dismissal.

NOTE: Look for the claimants to ask the Tennessee Supreme Court to take a look at this one. I will keep you posted.  

Trial Court's Denial of Defendants' Motion to Compel Arbitration Upheld on Appeal Because Family Member Who Signed Arbitration Agreement Was Not Authorized to Do So

The Tennessee Court of Appeals has issued its opinion in Williams v. Smyrna Residential, LLC, No. M2021-00927-COA-R3-CV (Tenn. Ct. App. Apr. 8, 2022). The syllabus form the slip opinion reads:

This appeal concerns the enforceability of an arbitration agreement in a wrongful death lawsuit. James Williams [], individually as next of kin and on behalf of the wrongful death beneficiaries of Granville Earl Williams, Jr., deceased [], sued Smyrna Residential, LLC d/b/a Azalea Court and Americare Systems, Inc. [] n the Circuit Court for Rutherford County []. Decedent was a resident of Azalea Court, an assisted living facility. Plaintiff alleged his father died because of Defendants’ negligence. Defendants filed a motion to compel arbitration, citing an arbitration agreement [] entered into by Decedent’s daughter and durable power of attorney Karen Sams [] on behalf of Decedent when the latter was admitted to Azalea Court. Notably, the durable power of attorney [] did not cover healthcare decision-making. The Trial Court held that Sams lacked authority to enter into the Agreement and that, in any event, the wrongful death beneficiaries would not be bound by the Agreement even if it were enforceable. Defendants appeal. We affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/james.williams.opn_.pdf.

NOTE: The Tennessee Supreme Court has reversed this opinion. That opinion from SCOTN can be found at this link, to wit: http://theduncanlawfirm.blogspot.com/2024/04/new-scotn-case-trial-courts-decision.html.

New Health Care Liability Action: Denial of Summary Judgment to Defense Reversed on Appeal Because Certificate of Good Faith Was Not Properly Presented

The Tennessee Court of Appeals has released its opinion in Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center,  No. E2021-00714-COA-R10-CV (Tenn. Ct. App. Mar. 30, 2022). The syllabus reads:

In this health[]care liability action, a decedent’s estate and her son sued a nursing home and the county that owned the nursing home, alleging that the nursing home was negligent in the care of the decedent. The nursing home and the county filed a motion to dismiss [(which was converted to a motion for summary judgment because matters outside the pleadings were considered)] the case for failure to comply with the certificate of good faith filing requirement in Tenn. Code Ann. § 29-26-122. The trial court denied the motion, finding that an exhibit attached to the complaint satisfied the certificate of good faith filing requirement. Because the exhibit did not contain all of the information required for a certificate of good faith, we reverse and remand.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/estate_of_beulah_blankenship_et_al._v._bradley_healthcare_and_rehabilitation_center_et_al..pdf .

NOTE: This is a must-read decision for anyone who is involved with medical malpractice cases (n/k/a health care liability actions) governed by Tennessee substantive law because it offers up a good discussions of certificates of good faith that are required under Tennessee Code Annotated section 29-26-122 in these types of cases.

Summary Judgment for Defense Reversed on Appeal Because Trial Court Failed to Support and Explain Its Reasoning in Its Order

The Tennessee Court of Appeals has released its opinion in Smith v. Walker, No. W2021-00241-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2022). The syllabus from the slip opinion reads:

Appellants purchased a home from Appellee that was contaminated with mold. Appellants therefore filed suit against Appellee. The trial court granted summary judgment in Appellee’s favor. Because the trial court’s order does not comply with Rule 56.04 of the Tennessee Rules of Civil Procedure or Smith v. UHS of Lakeside, Inc., we vacate and remand.

Here is a link to the opinion:

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

NOTE: While this is a memorandum opinion and cannot be cited by others as authority, Smith v. Walker, No. W2021-00241-COA-R3-CV, slip op. at 1, n.1 (Tenn. Ct. App. Mar. 22, 2022) (citing Tenn. Ct. App. R. 10), the authorities therein can be cited by others. Further, this opinion (and the authorities it cites) is instructive and a must read for anyone who is involved with a motion for summary judgment in a Tennessee state court.  

Constitutionality of a Metro. Davidson County (Tenn.) Ordinance and the Presumption Thereunder Upheld on Appeal

The Tennessee Court of Appeals has upheld the presumption under Section 12.68.180 of The Code of The Metropolitan Government of Nashville and Davidson County, Tenn. in Metro. Gove't of Nashville and Davidson County, Tenn. v. Gelle, No. M2020-01360-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2022). The syllabus from the majority slip opinion reads:

The defendant appeals the trial court’s judgment finding that he violated a reckless driving city ordinance, Metropolitan Code . . . § 12.68.180, when he drove 65 miles per hour in a 45-mile-per-hour zone. During trial, Metropolitan Government of Nashville & Davidson County, Tennessee [] presented evidence regarding the defendant’s speed to support its allegation that the defendant was driving recklessly. Following proof of the defendant’s excessive speed, the trial court found that the defendant had failed to rebut the presumption created by ordinance that he was driving in such a way as to demonstrate “a wilful and wanton disregard for the safety of persons or property.” The defendant challenges the constitutionality of such ordinance, which provides a rebuttable presumption that the defendant was driving recklessly when driving at least fifteen miles per hour over the speed limit. However, the defendant’s issues concerning constitutionality of the ordinance were not properly raised or decided by the trial court, and upon our determination that the ordinance is not facially unconstitutional, we hold that the defendant has waived his issues regarding the constitutionality of the ordinance. Upon our review of the record, we affirm the trial court’s judgment that the defendant violated Metropolitan Code . . . § 12.68.180.

Here is a link to the majority slip opinion: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.opn_.pdf.

Here is a link to Judge McClarty's dissent: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.separateopn.pdf.

Here's a link the Metro Code: 

https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinances.

NOTE: Judge McClarty makes some very good points here in the dissent.  Because of that, I would not be surprised if the Tennessee Supreme Court doesn't take this one up on appeal.

Trial Court's Grant of Motion to Dismiss Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Mack v. Cable Equipment Services, Inc., No. W2020-00862-COA-R3-CV (Feb. 9, 2022). The syllabus from the slip opinion reads:

This appeal arises from litigation involving an incident that occurred in 2010. Suit was originally filed in 2011. After a voluntary nonsuit, the complaint was refiled in 2014. Years later, the plaintiffs moved to amend their complaint to add additional defendants. The trial court granted leave to amend but reserved ruling on whether the claims against the new parties would relate back to the date of the original complaint under the provisions of Tennessee Rule of Civil Procedure 15.03. The amended complaint was filed in 2018. The newly added defendants moved to dismiss on the basis that none of the elements required for relation back under Rule 15.03 had been shown to exist. After a hearing, the trial judge agreed and provided an oral ruling in favor of the defendants. Before a written order was entered to that effect, the plaintiffs filed a notice of voluntary nonsuit without prejudice. The trial court subsequently entered an order granting the defendants’ motion to dismiss. The trial court found that at that point in the proceeding, the allowance of a nonsuit was discretionary, and permitting a nonsuit after its oral ruling would have been unfairly prejudicial to the defendants. As such, it granted the motion to dismiss for failure to state a claim on the basis that the claims were barred by the statute of limitations and did not relate back to the filing of the original or refiled complaint. The plaintiffs filed motions to alter or amend or set aside the order, arguing that the trial court lost jurisdiction at the moment the plaintiffs filed their notice of nonsuit, and therefore, the order of dismissal was void. They also argued that the trial court impermissibly relied on facts that were not found within the amended complaint in resolving the motion to dismiss. The trial court denied both motions. The plaintiffs appeal. We affirm.

Here is a link to the opinion: 

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

NOTE:  There is a lot going on in this opinion. It deals with whether an amendment adding defendants relates back for purposes of defeating a defense based on the expiration of the statute of limitations, how motions to dismiss should be handled by trial courts, etc. This opinion also addresses the waiver of issues on appeal due to an appellant's failure to properly present them on appeal as required by the Tennessee Rules of Appellate Procedure (the acronym being "T.R.A.P." for a reason). This is a must-read opinion for any lawyer who practices in Tennessee state courts.  

Judgment of Dismissal in a Health Care Liability Action in Tennessee Claims Commission Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Cavaliere v. State, No. M2021-00038-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2022). The slip opinion reads:

This appeal arises from proceedings in the Tennessee Claims Commission and follows a trial concerning care received by the decedent while at the Tennessee State Veterans Home. The Claims Commission ultimately found that the claimants had failed to establish a health care liability claim and therefore dismissed the case. For the reasons stated herein, we affirm the judgment of dismissal.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/wanda.cavaliere.opn_.pdf.

NOTE: This decision emphasizes just how difficult health care liability actions (f/k/a/ medical malpractice cases) are in Tennessee—especially in the Claims Commission. In addition to the normal issues that arise in these types of cases, this one involves waiver of issues on appeal due to counsel's failure to follow the appellate rules. This decision also offers a good explanation of the standard of review on appeal from Claims Commission cases. This one is worth reading in my humble opinion.  

Summary Judgment for One Defendant Reversed on Appeal Because a Duty Existed Due to Pigs Running at Large

The Tennessee Court of Appeals has released its decision in Cook v. Fuqua, No. M2021-00107-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2022). The syllabus from the slip opinion reads:

A woman sued a homeowner for negligence due to injuries she sustained when a potbellied pig maintained on the homeowner’s property jumped on her and knocked her off of the homeowner’s front porch. The homeowner filed a motion for summary judgment arguing that he did not owe the woman a duty of reasonable care because she was a trespasser. The trial court granted the motion for summary judgment, and the woman appealed. Determining that genuine issues of material fact still exist because the homeowner failed to establish that the woman was a trespasser, we reverse the trial court’s judgment.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/eltricia.cook_.opn_.pdf. 

NOTE: This is a very good read for anyone interested in the elements of negligence and summary judgment practice.  

Summary Judgment for the Defense Upheld on Appeal to Property Owner After Minor Was Injured by Felled Power Lines on the Property

The Tennessee Court of Appeals has released its opinion in Kelly v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church, No. M2019-02238-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2022). The syllabus form the slip opinion reads:

Parents sued a property owner after their child, while playing on the property, received an electrical shock from a downed [4,000-volt] power line. The property owner moved for summary judgment. Based on the undisputed facts, the trial court determined that the property owner was essentially a landlord and had neither actual nor constructive knowledge of the downed power line. So the court dismissed the parents’ claims against the property owner. On appeal, the parents argue that the property owner was a co-possessor of the portion of the property where the child was injured rather than a landlord. And, as a result, they contend that the property owner owed a duty to inspect the property to discover dangerous conditions such as the downed power line. At the very least, they contend that the question of constructive notice was for the jury. We affirm the grant of summary judgment. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/roy.kelly_._opn.pdf,

NOTE: This opinion offers a good analysis of premises liability claims and summary judgment practice under Tennessee substantive law. (While I am not familiar with all the facts of this case, I wonder if a theory of recovery based on inherently dangerous activity (coupled with in loco parentis) should have been pursued, too; I am just not sure.) 

Trial Court's Dismissal of Personal Injury Action as Time-barred (Because It Purportedly Did Not Fit Within the One-year Extension under Tenn. Code Ann. sec. 28-3-104(a)(2)) Overturned on Appeal Because the Court Below Failed to Support Its Ruling in a Way that Facilitated Appellate Review

The Tennessee Court of Appeals has issued its opinion in Peterson v. Carey, No. E2021-00430-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2021). The syllabus from the slip opinion reads:

This negligence case arises from a one-car accident in which the Plaintiff Jason M. Peterson, a passenger in a car driven by Defendant Jodi L. Carey, was injured. Plaintiff filed his complaint more than one year after he was injured. Defendant moved to dismiss on the ground that the one-year statute of limitations for personal injuries, Tenn. Code Ann. § 28-3-104(a)(1)(A), had run and the case was untimely filed. Plaintiff argued that because Defendant was given a citation for failure to exercise due care, Tenn. Code Ann. § 28-3- 104(a)(2), which provides for a two-year limitations period if “[c]riminal charges are brought against any person alleged to have caused or contributed to the injury,” applies. Defendant responded that because the police issued her citation under the Kingsport Municipal Code, the total fine was fifty dollars, a penalty that was civil and not criminal in nature. The trial court dismissed Plaintiff’s action with prejudice, holding it was filed too late. Because no evidence of the citation was presented to the trial court, and there is no indication in the trial court’s final judgment that it considered the arguments regarding the citation, we vacate and remand for the trial court to consider the evidence and rule on the issue presented.

Here is the link to the opinion: 

https://www.tncourts.gov/sites/default/files/e2021-00430_peterson_v._carey.pdf.

NOTE: Tenn. Code Ann. sec. 28-3-104(a) was amended in 2015 to extend Tennessee's one-year personal injury statute of limitations by one year if criminally charged conduct was involved. How this new part of that statute will be interpreted by the courts is still a novel concept that one who deals with personal injury actions governed by Tennessee substantive law would be wise to follow. This case is one to follow because it will surely be back before the Tennessee Court of Appeals soon.  My two cents' worth.   

Tennessee Court of Appeals Reverses Trial Court's Grant of Summary Judgment to the Defense Because the Trial Court Did Not Support Its Ruling as Required by Applicable Law

The Tennessee Court of Appeals recently released its decision in Boyd v. Gibson, No. W2020-01305-COA-R3-CV (Tenn. Ct. App. Jan. 10, 2022).  The syllabus from the slip opinion reads:

This is a lawsuit that challenges the appropriateness of care received by a cancer patient. Plaintiff originally filed suit in January 2018 and asserted a number of claims, some of which were predicated on alleged conduct occurring as early as August 2014. In an amended complaint, Plaintiff expanded her allegations, taking issue with conduct occurring as late as September 2016. The trial court ultimately dismissed Plaintiff’s complaint in toto as it concerned the Defendants at issue in this appeal. Due to a lack of clarity regarding the court’s specific bases for dismissal with respect to each of the claims involved, we vacate the judgment and remand for further consideration and findings. 

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/boydlisaopn1.pdf.

NOTE: This case offers a great analysis of what a trial court must do in granting summary judgment (in a health care liability action (f/k/a medical malpractice case)). This is a must-read decision for any lawyer dealing with summary judgment under Tennessee substantive law.    

Tennessee Supreme Court Holds that Tennessee's Health Care Liability Act Applies to Medical Battery and Intentional Misrepresentation Claims Against Health Care Providers for Injuries Arising from Surgical Procedures

The Tennessee Supreme Court has released its opinion in Copper v. Mandy, No. M2019-01748-SC-R11-CV (Tenn. Jan. 20, 2022). The syllabus form the slip opinion reads:

The issue presented in this interlocutory appeal is whether the Health Care Liability Act, Tennessee Code Annotated sections 29-26-101 to -122, applies to medical battery and intentional misrepresentation claims against health care providers for injuries arising from a surgical procedure. The defendant doctor told the plaintiff he was an experienced board-certified plastic surgeon, and the plaintiff consented to surgery. But the doctor was not a board-certified plastic surgeon, and the surgery did not go well. The plaintiff and her husband sued the doctor and his medical practice for her injuries, alleging medical battery and intentional misrepresentation. The defendants moved to dismiss because the plaintiffs had not complied with the pre-suit notice and filing requirements of the Health Care Liability Act. The plaintiffs, conceding their noncompliance, argued the Act did not apply to their medical battery and intentional misrepresentation claims. The trial court agreed with the plaintiffs, ruling that the defendants’ misrepresentations were made before any health care services were rendered and thus did not relate to the provision of health care services. On interlocutory review, the Court of Appeals affirmed. We reverse and hold that the Health Care Liability Act applies to the plaintiffs’ claims. The Act broadly defines a “health care liability action” to include claims alleging that a health care provider caused an injury that related to the provision of health care services, regardless of the theory of liability. Based on the allegations in the complaint, the plaintiffs’ medical battery and intentional misrepresentation claims fall within the definition of a “health care liability action” under the Act. We remand to the trial court for further proceedings consistent with this opinion. 

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/majority_opinion_-_sct_1-20-2022.pdf.

NOTE: This decision is a reminder of how broad the Tennessee Health Care Liability Act is; this decision is also a cautionary tale that must be read by any lawyer who handles health care liability actions under Tennessee law.  

This post relates to my December 15, 2020-post that can be found at this link: 

http://theduncanlawfirm.blogspot.com/2020/12/new-health-care-liability-action_15.html.

Tennessee Supreme Court Upholds Dismissal of Spouse's Loss of Consortium Claim in the Claims Commission Because Notice of It Was Not Submitted Before Complaint Was Filed as Required by Statute

The Tennessee Supreme Court has released its opinion in Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022).  The slip opinion reads:

This case involves claims against the State of Tennessee asserted by a husband and wife. The claimant husband suffered injuries when his car collided with a Tennessee state vehicle parked in the roadway. He gave written notice of his claim to the Tennessee Division of Claims and Risk Management. The Division did not resolve it, so the Division transferred the claim to the Tennessee Claims Commission. The husband and wife then filed a complaint with the Claims Commission. The complaint contained a loss of consortium claim by the wife that was not in the written notice the husband gave to the Division of Claims and Risk Management. The Claims Commission complaint was filed within the applicable one-year statute of limitations. The Claims Commission granted the State’s motion to dismiss the wife’s loss of consortium claim as time-barred because she did not give the Division of Claims and Risk Management written notice of her claim within the limitations period. The Court of Appeals affirmed. The claimants appeal, relying on the holding in Hunter v. State, No. 01-A-01-9210-BC00425, 1993 WL 133240 (Tenn. Ct. App. Apr. 28, 1993), that a complaint filed with the Claims Commission within the statute of limitations fulfills the requirement in Tennessee Code Annotated § 9-8-402(a)(1) that claimants give timely written notice of their claim against the State to the Division of Claims and Risk Management. We reject this argument, overrule Hunter v. State, and affirm the Claims Commission’s dismissal of the wife’s claim for loss of consortium

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/majority_opinion_14.pdf.

NOTE: This decision offers a good reminder of the importance of properly presenting a claim to the Tennessee Division of Claims and Risk Management when it comes to a spouse's loss of consortium claim.  Although such a claim is derivative of the injured spouse's claim, it must still be presented for presuit review just like the injured spouse's personal injury claim; if it is not, it will be subject to dismissal due to failure to comply with the statute,  

Trial Court's Grant of Summary Judgment to Defense Upheld on Appeal Due to Plaintiff's Counsel's Lack of Due Diligence in Suing the Correct Entity in a Timely Fashion

The Tennessee Court of Appeals has issued its opinion in Bodine v. Long John Silver's, LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022). The syllabus from the slip opinion reads:

This is a lawsuit that challenges the appropriateness of care received by a cancer patient. Plaintiff originally filed suit in January 2018 and asserted a number of claims, some of which were predicated on alleged conduct occurring as early as August 2014. In an amended complaint, Plaintiff expanded her allegations, taking issue with conduct occurring as late as September 2016. The trial court ultimately dismissed Plaintiff’s complaint in toto as it concerned the Defendants at issue in this appeal. Due to a lack of clarity regarding the court’s specific bases for dismissal with respect to each of the claims involved, we vacate the judgment and remand for further consideration and findings.

 Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/bonnie.bodine.opn_.pdf.

NOTE: There is a lot going on in this opinion. However, this is a must-read decision for any lawyer who seeks to amend a complaint to bring someone in as a party-defendant under Rule 15.03 of the Tennessee Rules of Civil Procedure after the statute of limitations has run. Read it as a cautionary tale.    

Summary Judgment for Defense in a Premises Liability Case Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Biggs v. Town of Nolensville, No. M2021-00397-COA-R3-CV (Tenn. Ct. App. Jan. 5. 2022).  The syllabus from the slip opinion reads:

This is an appeal from a governmental tort liability [act (GTLA)] case in which the trial court granted summary judgment in favor of the defendant governmental entity on the basis that it retained its immunity. Plaintiffs now appeal, arguing that the trial court erred in granting summary judgment. Specifically, plaintiffs contend that the trial court failed to consider their expert affidavit. On appeal, we reverse the trial court’s entry of summary judgment and remand for further proceedings.

Here is a link to that opinion:

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

NOTE: This is the correct decision; not sure why the trial court granted summary judgment in this one.  This opinion offers a good analysis of summary judgment along with premises liability in a GTLA case.  It is a must-read opinion for anyone handling this kind of case.  

 

Trial Court's Finding that No Underinsured Coverage Was Available to Plaintiff Is Upheld on Appeal

The Tennessee Court of Appeals has issued released its opinion in Hughes v. Liberty Mutual Fire Insurance Co., No. E2020-00225-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2021).  The syllabus from the slip opinion reads:

The driver of a vehicle covered by a general automobile liability policy notified the insurance carrier of a potential uninsured motorist [(UM)] claim. The insurance carrier responded that the named insured had rejected in writing uninsured motorist coverage for vehicles in use in Tennessee. The driver claimed that the prior rejection was no longer effective because the named insured had submitted a new application during the renewal process. After a bench trial, the court ruled that the policy did not include uninsured motorist coverage. We conclude that the prior written rejection remained in effect when the policy was renewed. And because the named insured did not submit a new application in connection with the renewal transaction, we affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/hughes_v._liberty_mutual_fire_insurance_opinion_unsigned.pdf.

NOTE: There is oftentimes a battle as to whether there is UM coverage at the time of a collision that causes personal injuries.  This opinion offers a good explanation as to when UM coverage is in fact available under Tennessee law.  

Summary Judgment for Defense in a Personal Injury Action Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021). The syllabus from the slip opinion reads:  

This is a negligence case arising out of an injury suffered by the plaintiff when he fell off a ladder at the defendant’s cabin which was then under construction. The trial court granted the defendant’s motion for summary judgment, holding that there was no genuine issue as to any material fact and that the plaintiff’s evidence was insufficient to establish his claim. The plaintiff appeals. We conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted. Accordingly, we affirm.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/malone_v._viele_opinion_e2021-637-coa_unsigned_opinion.pdf.

NOTE: This opinion offers up a good analysis of Tennessee summary judgment practice.  It is worth reading in my opinion.