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.

New Motor Vehicle Collision Case: Jury Verdict for Defendant Upheld on Appeal

The Tennessee Court of Appeals recently rendered its decision Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a motor vehicle accident in a shopping center complex during the Christmas season. Plaintiff appeals the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial. Finding that the jury’s apportionment of fault is supported by material evidence and that the trial court did not abuse its discretion in denying the motion for a new trial, we affirm the trial court in all respects.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/justice.james_.opn_.pdf.

NOTE: There is a lot going on in this opinion for it to be only six pages long: namely, comparative fault, motions for new trial, the material evidence rule, the thirteenth juror rule, abuse of discretion, etc.  Primarily, what I took from it is the discussion of the material evidence rule, which is great in my opinion.  For that reason alone, this is a must-read decision for any lawyer who has handles auto cases governed by Tennessee substantive law.  

Also, I think the plaintiff left out a potentially culpable person by not suing the driver who waived the defendant into the lane, which probably cost him a win here.  That could have been accomplished via the discovery rule or Tenn. Code Ann. sec. 20-1-119 (the comparative fault joinder statute), even if that driver was unknown (with -119 being the more likely way to have done that).  Here is why: while a "phantom" tortfeasor or a "John Doe" is generally not allowed in Tennessee under our system of modified comparative fault, see Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000) ("[W]e conclude that the defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119 . . . ."), they are allowed in auto cases, see, e.g., Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001) (allowing fault to be attributed to an unknown tortfeasor in a auto case and a monetary recovery for that fault to be made from plaintiff's underinsured-motorist insurance (UIM)); Marler v. Scoggins, 105 S.W.3d 596, (Tenn. Ct. App. 2002) (allowing fault to be attributed to a John Doe in an auto case under Tennessee law even if there is no UIM to pay plaintiff for fault attributed to the Doe).  Doing that would have made a difference in the outcome here because under our state's system of modified comparative fault, a plaintiff may only recover if he is 49% at fault of less.  Had the driver been made a party and been found to be more than 10% at fault, which is probable, the plaintiff would have recovered something (minus his fault, of course (which would probably not have been 60% and would have been less than 50% had the driver been added as a John Doe party-defendant)).  

Trial practice is not easy, folks.  There are so many moving parts in a case at times that it is like herding cats. Lord willing, me all make our way.  

P.S.  And, of course, if the driver's identity was known (or became known), the plaintiff could have added her as a named party-defendant and the fault calculations above would probably have played out the same way in my opinion.  Assuming the addition was timely done.  

New Case on Service of Leading Process and the Tolling of the Statute of Limitations: Dismissal of the Case Vacated and Remanded Because Trial Court Did Not Consider Enlargement of Time to Effect Service of Leading Process First

The Tennessee Court of Appeals has released its opinion in Stafford v. Lucas, No. W2019-01438-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

The trial court dismissed this lawsuit for failure to timely serve the defendants after finding that it was “unaware of an exception to this rule or authority to expand the time for service.”  Prior to the hearing, however, the plaintiffs filed a motion for enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court did not specifically address this motion. As such, the trial court’s dismissal of the complaint is vacated, and this matter is remanded with instructions for the trial court to rule on plaintiffs’ motion for an enlargement of time. 

Here is a link to the opinion:

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

NOTE: This case is a "MEMORANDUM OPINION" and "shall not be published, and shall not be cited or relied on for any reason in any unrelated case."  Stafford, No. W2019-01438-COA-R3-CV, slip op. n.1, at 1 (quoting Tenn. Ct. App. R. 10).  However, even with that admonition in mind, this is still a must-read opinion for any lawyer who practices in Tennessee state courts.  Here's why: even though this case appears to be a "health care liability action," compare id., passim, with T.C.A. § 29-26-101(a) (LEXIS through 2020 Reg. Sess.) (defining a "health care liability action" in Tennessee to be an a civil action against a health care provider or providers arising from an injury caused by the provision of, or failure to provide, health care services to a person), the enlargement of time dealt with herein applies to all cases in Tennessee trail courts of record.  Tenn. R. Civ. P. 1 (2005) (noting that "the Rules of Civil Procedure shall govern procedure in the circuit or chancery courts in all civil actions, whether at law or in equity, and in all other courts while exercising the civil jurisdiction of the circuit or chancery courts" (emphasis added)).  And, of course, the authorities cited in this opinion can be cited in other cases based upon their respective weight of authority.  See generally Tenn. Sup Ct. R. 4(G) (2015) (discussing weight to be given to Tennessee decisions).  

To cut to the chase, this case deals with the enlargement of time to effect service of leading process upon a defendant.  Stafford, supra, passim.  While the plaintiff in this case could have made things a lot easier on the trial court by paying better attention to the service-of-process issue and not letting the issue arise, I think this opinion is correctly decided.  Assuming the plaintiff can meet the criteria to establish excusable neglect upon remand, see id. at 6, the case should be allowed to proceed for at least two reasons: first, continued litigation in and of itself is not prejudicial to a defendant in Tenn., see Henry v. Goins, 104 S.W.3d 475, (Tenn. 2003) ("Simply having to proceed to trial does not constitute prejudice, nor does the mere passage of time."  (Citations omitted.)); second, Tennessee has a long-established policy of settling cases upon their merits and not upon procedural technicalities, Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975) (noting that civil actions are to be determined upon their merits and not on procedural technicalities); accord Karash v. Piggott, 530 S.W.2d 775, 777 (Tenn. 1975) (same); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (same); Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001) (same); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn. Ct. App. 2004) (same); Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn.2006) (same); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 432 (Tenn. 2011) (same); see also Abraham Caruthers, History of a Lawsuit § 1, at 2 (Sam B. Gilreath & Bobby R. Aderholt eds., 8th ed. 1963, The W.H. Anderson Co.) (discussing, inter alia, the reasons our state's courts exist). 

New Health Care Liability Action Opinion: Trial Court's Denial of Sanctions Sought by Defendant-Physician Against Other Defendants for the Latter's Failure to Support Claim Against Defendant-Physician with Competent Expert Testimony Under Tenn. Code Ann. sec. 29-26-122 Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Smih v. Outen, No. W2019-01226-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2020).  The syllabus from the slip opinion reads:

In this health care liability action, the defendant pharmacists were sued for dispensing the wrong medication to the plaintiff. The defendants then alleged comparative fault against Appellant doctor, who was treating the patient. The plaintiff amended her complaint to allege fault against the doctor. However, the doctor was eventually granted summary judgment when no expert was produced to support the claim. Appellant doctor then sought sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that, inter alia, the defendants’ certificate of good faith was supported by the written statement of an incompetent expert witness. The trial court denied the motion for sanctions. We affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/smithdebraopn_0.pdf.

NOTE: This opinion analyzes the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-122.  It is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice cases) governed by Tennessee law.  

P.S. On February 5, 2021 this opinion was designated as "Not for Citation" by the Tennessee Supreme Court under its Rule 4.  

New Health Care Liability Action Opinion: Summary Judgment and Multiple Defendants; Respondeat Superior Claim to Be Considered upon Remand

The Tennessee Court of Appeals issued its opinion yesterday in Kidd v. Dickerson, No. M2018-01133-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2020).  The syllabus reads:

In this health care liability action, the surviving daughter of a woman who died as a result of a stroke brought suit as executrix of her mother’s estate and as her next-of-kin against two physicians and their practice group as well as a pharmacist who filled a prescription for her and the pharmacist’s employer. Plaintiff alleged that the death occurred due to a stroke her mother suffered as a result of taking the drug Pradaxa, which had been prescribed by the defendant doctors and filled by the defendant pharmacist and the defendant pharmacy (the “pharmacy defendants”). The trial court granted summary judgment to the pharmacy defendants on all claims, holding that the proof submitted by Plaintiff was insufficient to establish the element of causation; the court granted summary judgment to the defendant doctors on Plaintiff’s claims that their negligence caused and hastened the decedent’s death, and the claim that the doctors did not have the decedent’s informed consent to administer Pradaxa; the court granted summary judgment to one doctor on all claims; and the court denied summary judgment to one doctor and the practice group on the remaining claims. Plaintiff appeals the grant of summary judgment to the pharmacy defendants and the doctors; the remaining doctor and practice group appeal the denial of their motions for summary judgment on the remaining claims. Upon our de novo review, we affirm the grant of summary judgment to the pharmacy defendants; we affirm the grant of summary judgment to Dr. Thomas Farmer in toto; we affirm in part the grant of partial summary judgment to the doctors and their group and remand for further proceedings on whether the nurse practitioner’s actions caused Ms. Grimes’ injury and suffering during the period of October 20 until she was stabilized in the hospital, as well as whether the remaining doctor and practice group are liable for that negligence under a respondeat superior theory. 

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/kidd.teresa.opn_.pdf

NOTE: This opinion is long for a state-court opinion.  However, it is a good read if one handles health care liability cases (f.k.a. medical malpractice cases) governed by Tennessee substantive law.  

New Health Care Liability Action Opinion: Defendant-Physician Blamed Nurses Without Pleading Their Comparative Fault as Required by Law, Which Necessitated a New Trial, Etc.

The Tennessee Court of Appeals released its opinion today in Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a health care liability lawsuit. In 2013, Sandra Kanipe . . . died from an undiagnosed aortic dissection while in the care of Dr. Pragnesh Patel, M.D. . . .  Travis Kanipe . . . , Ms. Kanipe’s son, sued Dr. Patel in the Circuit Court for Hamblen County . . . .  After a trial, the jury found in favor of Dr. Patel. The Trial Court granted Mr. Kanipe’s motion for a new trial on grounds that Dr. Patel had, through his testimony, shifted blame to a non-party despite having never pled comparative fault. After a second trial, the jury found in favor of Mr. Kanipe. Dr. Patel appeals, arguing among other things that he never shifted blame. From our review of the record, we conclude that Dr. Patel did, in fact, shift blame to a non-party when he testified in the first trial that the nurses never notified him of Ms. Kanipe’s ongoing chest pain. In view of our Supreme Court’s holding in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), the Trial Court did not abuse its discretion in ordering a retrial. We affirm the judgment of the Trial Court. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/kanipe_v._patel_e2019-01211.pdf

NOTE: This is a must-read opinion for any lawyer who handles tort cases governed by Tennessee substantive law where our system of modified comparative fault comes into play.  Oftentimes, defendants will try to shift blame (and fault) to nonparties in an attempt to avoid liability without complying with Rule 8.03 of the Tennessee Rules of Civil Procedure (which requires facts to be pleaded to support such a defense as well as the identity or description of any alleged nonparty tortfeasor).  As this opinion reminds us, Rule 8.03 is to be "strictly adhered to" by the courts.  Kanipe,  No. E2019-01211-COA-R3-CV, slip. op. at 14 (emphasis added) (citations omitted).    

This opinion also offers up a good explanation of Tennessee's peer review privilege and the "thirteenth juror" rule.  Id. at 15–18.  

New Tennessee Health Care Liability Action Opinion (Nursing Home): Case Remanded to Trial Court to Determine Whether an Agreement to Arbitrate Was Formed Under Federal Arbitration Act

The Tennessee Court of Appeals recently issued its opinion in Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2020).  The syllabus from the slip opinion reads:

After a nursing home resident died, her daughter filed a wrongful death action against the facility. The nursing home moved to compel arbitration based on an arbitration agreement signed by the daughter when her mother was admitted to the facility. The daughter claimed that she lacked authority to sign the arbitration agreement for her mother. The trial court agreed and denied the motion to compel. On appeal, we conclude that the Federal Arbitration Act required the trial court to resolve the issue of whether an agreement to arbitrate had been formed. Because the nursing home failed to establish an agreement to arbitrate had been formed with the patient, we affirm. 

Here is a link to the slip opinion:

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

NOTE: This opinion, like my prior post, offers a good explanation of arbitration in Tennessee.  It also offers a good discussion of agency (implied and apparent).  A good read.  

New Tennessee Health Care Liability Action Opinion (Nursing Home): Trial Court's Denial of Motion to Compel Arbitration Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Stokes v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2019-01983-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2020).  The syllabus reads:

In this health care liability action, the defendant moved to compel arbitration based upon an agreement entered into between the parties that provided for binding arbitration. The plaintiff opposed the defendant’s motion, taking specific umbrage at a provision in the parties’ agreement that indicated the expenses of arbitration would, by default, be subject to a [fifty-fifty] split. Contending that he was unable to pay for arbitration expenses, the plaintiff opposed enforcement of the arbitration agreement by advancing a cost-based unconscionability defense. Although the defendant acted to relieve the plaintiff of this asserted burden by offering to pay for the costs of arbitration, the trial court held that the subject fee-splitting provision in the agreement was unconscionable and denied the motion to enforce the agreement and compel arbitration. For the reasons stated herein, while we agree with the trial court that, under the facts of this case, the fee-splitting provision was unconscionable, we hold that the trial court erred in denying the defendant’s motion to compel arbitration.

Here is a link to the slip opinion:

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

NOTE: This opinion offers a good explanation of arbitration agreements in Tennessee and whether they are enforceable or not.  It also discusses severability in contract interpretation.  It is worth reading in my opinion.  

New Case on the Relation Back of Amended Complaints Under Rule 15 of the Tennessee Rules of Civil Procedure

Today, the Tennessee Court of Appeals issued its opinion in Hensley v. Stokely Hospitality Properties, Inc., No. E2019-02146-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2020).  The syllabus from the slip opinion reads:

In this premises liability case, the plaintiff appeals the trial court’s dismissal of her claims against a hotel based on her failure to satisfy the notice requirements of Tennessee Rule of Civil Procedure 15.03 for amending her complaint to add a new party. We affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/hensley_v._stokely_e2019-02146.pdf

NOTE: This is a darn good opinion by Judge Davis.  While this is a premises liability case, the opinion explains the relation back of amended complaints under Rule 15.03 (as well as motions to dismiss under Rule 12 and motions for summary judgment under Rule 56) of the Tennessee Rules of Civil Procedure.  This is a must-read opinion for any lawyer who practices civil litigation in Tennessee state courts.  

As a practical matter, I have found that good ways to discover who owns (or controls) realty are: (1) check the property records (deeds, leases, etc.); (2) check business licenses with the county clerk (what name is the business operating under); (3) check with the county assessor's office to see who is paying the personal and real property taxes, and (4) check those names with the Tennessee Secretary of State's records (via the Secretary's website).  In Tennessee, one should be able to determine who owns and controls the realty in question in a premises liability case by doing these things.  

Dismissal of Spouse's Loss-of-consortium Claim Upheld on Appeal Because Notice of That Claim Was Not Filed with the Division of Claims and Risk Management Prior to Suit Being Filed

The opinion of Kampmeyer v. State, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020) was released today by the Tennessee Court of Appeals.  The syllabus from the slip opinion reads:

Appellants, Husband and Wife, filed a complaint for damages, including Wife’s loss of consortium claim, with the Tennessee Claims Commission. The State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Wife’s loss of consortium claim because she did not file notice of her claim with the Division of Claims Administration within the applicable statute of limitations. The Claims Commission dismissed Wife’s claim for failure to comply with the notice requirement. See Tenn. Code Ann. § 9-8- 402(b). Discerning no error, we affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/kampmeyer.steven.opn_.pdf

NOTE: The takeaway from this decision: notice of a spouse's derivative loss-of-consortium claim must be filed with the Division of Claims and Risk Management before suit is filed for it and the injured spouse's claim.    

New Opinion on Vicarious Liability and the Tennessee Saving Statute

The Tennessee Court of Appeals released its opinion today in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020).  The syllabus from the slip opinion reads:

The dispositive issue in this personal injury action is whether the claims against the defendant trucking company for the tortious acts of its employee/truck driver are time-barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105, Tennessee’s “savings statute.” After the plaintiffs commenced the new action, the company filed a motion to summarily dismiss the complaint, asserting the plaintiffs’ claims against the employee were procedurally barred before the new action was commenced. The trial court denied the motion because the first action was instituted before the plaintiffs’ right of action against the employee became extinguished by operation of law, and the second complaint was timely filed pursuant to the savings statute. For the same reason, we affirm and remand for further proceedings.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/volodymyrhelyukh.opn_.pdf

NOTE: This is a good opinion to read about vicarious liability and the saving statute.  The key to the plaintiffs' prevailing on appeal here is that the vicarious liability of the principal-defendant was pleaded against it before the one-year statute of limitations expired in the first action.  See Abshure, 325 S.W.3d at 100; id. at 112.  That is why they were able to use the saving statute to refile against the principal-defendant in this case.  

Also, because the plaintiffs had not effected service of leading process upon Heller in the first suit, they could have sent a copy of the complaint with the notice of voluntary dismissal and the saving statute would have preserved their claims against him for a year after entry of the order dismissing him from the first action.  Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 711 (Tenn. 2002).

New Opinion on Hospital Charges and Their Reasonableness

The Tennessee Court of Appeals released its opinion in Blount Memorial Hospital v. Glasgow, No. E2019-00776-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The slip opinion reads:

This appeal arises from a hospital’s action against a patient to recover payment for medical services. After a bench trial, the court determined there was not an enforceable contract between the parties, but the hospital was entitled to recover the value of its services under a quantum meruit theory and ruled that the charges billed to the patient represented the actual value of the hospital’s services. The court based its determination on the testimony of the hospital’s witness that, because the rates that a hospital could charge were set by Medicare, the amount charged to the patient was comparable to what other hospitals would charge for the same or similar services. The patient appeals and asks this court to consider whether the hospital proved by a preponderance of the evidence that the amount it charged for medical services represented the actual value of those services. We affirm the trial court’s decision.

Here is the link to the opinion:

http://www.tncourts.gov/sites/default/files/blount_memorial_hospital_v._glasgow_e2019-00776.pdf

NOTE: This case offers a good explanation as to the value of medical services provided.  

New Health Care Liability Action Opinion: Directed Verdict in Favor of Hospital on Direct Negligence Claim Upheld on Appeal

The Tennessee Court of Appeals recently issued its decision Surber v. Mountain States Health Alliance d/b/a Johnson City Medical Center, No. E2019-01494-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The syllabus from the slip opinion reads:

This is a medical malpractice action in which the plaintiff filed suit against the hospital for treatment he received following an eye injury, raising claims of direct and vicarious liability. The case proceeded to a jury trial, at which the court granted a directed verdict on the claim of direct liability at the close of the plaintiff’s proof. The plaintiff filed this appeal, claiming the trial court erred in limiting his expert witness testimony. We affirm.

The link to the majority opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494.pdf

Judge Swiney's concurring opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494_b.pdf

NOTE: This case offers a good discussion of direct hospital liability under a negligence theory.  This difference between this case and Barkes v. River Park Hospital, Inc., 328 S.W.3d. 829 (Tenn. 2010) is explained herein: it is nuanced, but worth noting: the standard of care is not the same thing as hospital rules and regulations (although the rules and regulations can be in accord with the standard of care required of a hospital).  

New Health Care Liability Action Opinion: Denial of Motion to Strike Upheld on Appeal; Dismissal of the Case, However, Was Reversed

The Tennessee Court of Appeals has released its opinion in Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/eskridge_v._nhc_e2019-01671.pdf

NOTE: This is the correct decision as to the motion to dismiss.  Defendants, as movants of that motion, had the burden of proving that the delay in service was intentional under Rule 4.01(3),  Tenn. R. Civ. P., Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 12, which they failed to do.  This is where one must be mindful of one of the common law maxims of pleading: "affirmanti, non neganti, incumbit probatio–the burden of proof rests upon him who affirms, not upon him who denies."  City Nat’l Bank v. Barnes, 51 S.W.2d 503, 504 (Tenn. 1932). 

Further, service of a summons within the ninety-day window of it effectiveness suffices; to hold otherwise would be to require a court to look into any service effected in less than ninety days that might otherwise not be prompt, etc.  See Tenn. R. Civ. P. 4.01, -.03; Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) ("[I]f [a plaintiff] establishes that [a defendant] was served within ninety days of [the issuance of the summons for that defendant], then [plaintiff's] lawsuit is not barred by the statute of limitations and may proceed.").  See also Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (noting that inferior courts in Tennessee must follow a "pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar" (emphasis added)); Barger v, Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (noting same).  I am a little surprised that Fair, which is a SCOTN case, was not mentioned in this appeal.  

Additionally, it appears that the motion to strike should have been granted because the affirmative defense in question, Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 9–10, did not comply with Rule 8.03, Tenn. R. Civ. P., because it was mot supported by any pleaded facts.  Tenn. R. Civ. P. 8.03 (requiring, inter alia, facts to be pleaded in support of any affirmative defense); George v. Alexander, 931 S.W.2d 517, (Tenn. 1996) ("Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes."  (Emphasis added.)).

While I admire the defense's zeal here, their argument was just wrong.  See Fair, 418 S.W.3d at 546.  I am glad the Tennessee Court of Appeals reached the correct result by reversing the dismissal of the case.  (I also think any affirmative defense concerning service of leading process can be disposed of upon remand via partial summary judgment.  See id.)

P.S.  For purposes of information, Fair was one of my cases.  Plaintiff's counsel was kind enough to let me help them with the appeal to SCOTN, which we won.  Id. at 543.

P.P.S.  For a case involving intentional delay of service of a summons, read Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008).  

New Case on the Certification of Nonfinal Orders Under Rule 54 of the Tennessee Rules of Civil Procedure

The Tennessee Court of Appeals recently released its opinion in Blackburn v. McLean, No. M2019-00428-COA-R3-CV (Tenn. Ct. App. July 31, 2020).  The syllabus from the opinion reads:

This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/blackburn.barry_.opn_.pdf

NOTE: There is a lot going on in this opinion.  However, the quick takeaway from it is that trial courts need to be careful when certifying nonfinal orders as final under Rule 54.02, Tenn. R. Civ. P.  The Tennessee Court of Appeals has been focused on this issue over the last few years because it has dealt with it in a number of cases where trial courts have erred in certifying nonfinal orders as final so that an appeal can be taken while a case is pending. This is a good opinion to read to understand the current state of the law on this issue.  

New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020).  The syllabus from the slip opinion reads:

This is a premises liability action arising from an injury suffered by a guest who slipped on ice in the parking lot of a hotel. The plaintiffs appeal the trial court’s grant of summary judgment to the defendant. Upon a thorough review of the record, 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:

http://www.tncourts.gov/sites/default/files/chittenden.geoge_.opn_.pdf

NOTE: The ice that caused the fall was the result of a snow storm.  See Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV, slip op. at 1–2 (Tenn. Ct. App. July 15, 2020).  While I haven not seen the operative complaint in this case, since it was venued here in Nashville, it probably would have behooved the plaintiffs to have pleaded a negligence per se claim due to a violation of a local code provision, to wit:

     It shall be the duty of every owner or proprietor of any dwelling house, business house or other house abutting on any public street, square or avenue within the fire district to remove or cause to be removed from the sidewalk immediately in front of his premises all snow and ice which may each day accumulate thereon.

The Code of the Metro. Gov't of Nashville and Davidson County, Tenn. § 13.32.040 (2017) (emphasis added), https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinancesnodeId=CD_TIT13STSIPUPL_DIVIIURSEDIRE_CH13.32STSIRE_13.32.040SNICREWNRE; but see Shaw v. Metro. Gov't of Nashville & Davidson Cnty., 596 S.W.3d 726, 734–39 (Tenn. Ct. App. 2019) (discussing when negligence per se applies as to the violation of a municipal code), no app.

Lastly, this slip opinion has been designated as a memorandum opinion and may not be cited or relied upon as authority in any other case.  Chittenden, slip op. at 1, n.1 (citing Tenn. Ct. App. R. 10).  However, this opinion may, obviously, still be used to aid one is doing research on the law of premises liability in Tenn.