Tennessee Injury Attorney Blog

February 20, 2020

Tennessee Court of Appeals Reduces Remittitur Issued by Trial Court in Tractor Trailer Accident Case

In a Tennessee truck accident case, an injured person may be able to recover money damages for several different types of loss, including loss of earning capacity. In simple terms, this means that the defendant has to pay the plaintiff the money that he or she would have been able to earn but for the accident.

Loss of earning capacity can be temporary (until the plaintiff physically recovers from the accident and returns to work), or it can be permanent (when the plaintiff is unlikely to ever be able to go back to work). The burden of proof is on the plaintiff to provide evidence of his or her lost earnings, both past and future, resulting from the wreck.

Sometimes, a jury may award an amount of damages that, when considered by the trial court judge or the court of appeals, was not in line with the evidence introduced at trial. Rather than start over with a new trial, the court may issue a “remittitur,” which reduces the amount the plaintiff ultimately receives as to one or more elements of damages but does not otherwise disturb the jury’s verdict in his or her favor as to liability or other issues. In other words, the plaintiff still wins; he or she just gets less money than the jury awarded.

February 6, 2020

Tennessee Appellate Court Finds Conflict Between City’s On-the-Job-Injury Policy and State Statute Setting Forth Presumption in Firefighter Death Cases

by Mark Hartsoe

Most workers in Tennessee are covered by workers’ compensation laws. However, some are not. For example, some public employees are not entitled to benefits under the same system that a fast food restaurant employee or factory worker would be covered.

In such cases, the employee (or, in a fatal illness or accident case, the worker’s family) may be entitled to some alternative type of benefits following an accident or sickness caused by the worker’s conditions of employment, but such a suit may be pursued more in the nature of a Tennessee personal injury or wrongful death lawsuit than a “regular” worker’s compensation case. Some governmental entities’ work injury coverage is administered through a third-party administrator who makes the initial decision in the case. This may be reviewed by an administrative law judge, a chancellor or circuit court judge, and, eventually, the appellate court.

Facts of the Case

In a recent case, the plaintiff was the widow of a city fireman who passed away in 2015. At the time of his death, the decedent had worked for the city’s fire department for some 20 years. His pre-hire physical examine revealed no signs of hypertension or other heart disease. After having completed a 24-hour workday that required him to manage calls on five separate calls, the decedent passed away within 12 hours of leaving his post. The widow sought on-the-job-injury benefits for the fireman’s death. The defendant’s third-party administrator denied the widow’s claim on the basis that no autopsy had been performed on the decedent as was required under the city’s on-the-job injury policy.

January 29, 2020

Class Action Lawsuit Accuses Insurance Company of Violating Tennessee Law in Handling of Uninsured Motorist Deductibles

by Mark Hartsoe

In a Tennessee car accident case, the defendant is usually the driver whose negligence caused the crash. If he or she was on the job at the time, his or her employer may also be named as a defendant based on the principles of vicarious liability. Sometimes, however, the negligent driver cannot be identified. This may happen in a hit-and-run accident, for example. In these cases, the plaintiff’s litigation opponent may be his or her own insurance company, provided that he or she had uninsured motorist insurance. A recent case dealt with the issue of whether an insured motorist insurance company violated Tennessee law in its dealings with own insureds in such cases.

Factual Allegations

In a recent case, the plaintiff filed a putative Tennessee state court class action lawsuit against the defendant insurance company, alleging that the defendant had unlawfully charged customers a deductible in accidents in which uninsured motorists were positively identified and solely at fault. The defendant admitted that this scenario did happen to the plaintiff but denied that there had been a policy or practice regarding charging deductible in uninsured motorist cases. The defendant further alleged that it was justified in denying the plaintiff’s claim because he had failed to accurately report that he was using his car to provide ridesharing services.

After the state court lawsuit had been pending for some time, the state court allowed the plaintiff to amend his complaint to add a request for punitive damages. This amendment increased the damages at issue to the threshold for removal to federal court, and the defendant removed the action to the United States District Court for the Western District of Tennessee. At the time of the removal, a motion to compel was pending.

January 22, 2020

Tennessee Court of Appeals Says Jury’s $0 Damages Award Was in Error, Given Plaintiff’s Serious Injuries

by Mark Hartsoe

Seeking fair compensation following an east Tennessee slip and fall accident can be a complex endeavor. Depending upon the circumstances, there may be multiple defendants, some of whom point the finger of blame at one another. In some situations, one or more of the defendants may seek to avoid liability by relying on a particular statute. One possible statute that may prevent an injured party from seeking compensation for his or her injuries is the Tennessee Workers’ Compensation Act, which prevents an employee from suing his or her employer for negligence in most circumstances. When a plaintiff is able to make out a viable case of negligence against a property owner, he or she may be able to recover payment for several different types of money damages for his or her physical injuries.

Facts of the Case

In a recent appellate court case originating in the Circuit Court for Hawkins County, Tennessee, the plaintiff was a man who was injured in a fall while helping build a house for the defendant landowner. The plaintiff brought a negligence action against the defendant, seeking compensation for his medical expenses, lost wages, pain and suffering, and other damages caused by the fall. In explaining why he did not seek workers’ compensation benefits, the plaintiff averred that the defendant had failed to have a certificate of insurability and had not insured him at the time of the accident; according to the plaintiff, his appropriate remedy was thus in tort, not in workers’ compensation.

The case proceeded to a jury trial, during which the defendant attempted to point the blame for the plaintiff’s injuries toward a third-party who was not involved in the lawsuit. According to the defendant, this third party was a handyman who was helping the defendant build the house. The jury found that the plaintiff was the employee of the handyman rather than the defendant, that the handyman was 60% at fault for the plaintiff’s injuries, that the plaintiff was 30% at fault for his injuries, that the defendant was 10% at fault for the plaintiff’s injuries, and that the plaintiff was not entitled to any money damages. The plaintiff appealed.

December 27, 2019

Alleged Nursing Home Arbitration Agreement Held Invalid by Tennessee Court of Appeals

by Mark Hartsoe

Doctors, nurses, hospitals, and nursing homes have a strong aversion to being sued. Of course, no one wants to be accused of carelessness or wrongdoing, and defendants facing claims of nursing home negligence or patient abuse are no different.

However, as compared to many other defendants, the medical establishment goes above and beyond in their efforts to dissuade injured individuals from seeking justice. Sometimes, such efforts begin very early in the process – with a requirement that a patient agree to arbitrate, rather than litigate, any possible claims as a condition to admission into a treatment facility. Fortunately, not all such attempts to deprive an injured person or his or her family of their day in court are successful. A Knoxville nursing home negligence lawyer may be able to challenge the validity of the agreement.

Facts of the Case

In a case filed in the Circuit Court for Shelby County, the plaintiff was a woman whose mother suffered a fractured tibia and fibula in a fall while she was a resident at the defendant nursing home. The plaintiff, acting as her mother’s next friend, filed suit against the defendant, asserting claims of ordinary negligence and violations of the Tennessee Healthcare Liability Act, codified at Tennessee Code Annotated §§ 29-26-101, et seq. In response, the defendant filed a motion to compel arbitration and to stay the proceedings, relying upon a 2013 agreement signed by the plaintiff on her mother’s behalf when the mother entered the defendant’s facility.

December 16, 2019

Distracted Driving – a Huge Problem on Tennessee Roadways

by Mark Hartsoe

We’re all busy these days. It isn’t surprising that many drivers attempt to “multi-task” by making phone calls or texting while driving. However, any time that a driver focuses his or her attention on something other than the road, he or she increases the chances of being in a Tennessee car accident.

Statistically speaking, about three people lose their lives in car crashes in Tennessee each day. Far too many of these accidents are caused by distracted driving, including cell phone and smart phone usage. The problem isn’t just in Tennessee, of course. Nationally, the National Highway Traffic Safety Administration estimates that over 3000 lives are lost annually in the United States because of distracted driving.

Distracted Driving is Extremely Dangerous

A driver can be distracted by many different things – carrying on a heated conversation with a passenger, eating or drinking, and applying cosmetics or engaging in other grooming (such as shaving) are all considered to be forms of distracted driving. However, the usage of electronic devices – especially smart phones, but also navigation systems, radios, and the like – is especially problematic.

November 20, 2019

Tennessee Court of Appeals Reverses Summary Judgment Granted to Insurance Agent and Agency in Insureds’ Failure-to-Procure Excess Uninsured Motorist Coverage Case

by Mark Hartsoe

Uninsured motorist insurance coverage is very important because it can be the only protection available to a person who is involved in an east Tennessee car accident with an uninsured driver (similarly, underinsured motorist coverage protects against situations in which the at-fault driver has some, but not enough, liability insurance. In cases in which coverage is triggered due to a defendant’s lack of coverage (or lack of sufficient coverage, as the case may be), the insurance company essentially “stands in the shoes” of the negligent driver. This means that the insurance company can offer defenses to liability, just as the driver would do under the same circumstances. An insurance company is an insurance company, after all, and the fact that its insured is on the other side of the suit does not change the insurer’s desire to limit the payout on the claim.

This can be very upsetting to policyholders who have been loyal customers, always paying their premiums on time and being careful drivers. What can come as an even worse surprise, however, is a customer thinking that he or she has uninsured motorist insurance coverage in place and then finding out – after an accident caused by another motorist – that he or she does not have such coverage.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who had previously lived in Georgia. When they lived in that state, they had $2,000,000 worth of excess uninsured motorist coverage, and their policy included a separate “line item premium” for the excess uninsured motorist coverage. After they moved to Tennessee in 2013, the plaintiff husband approached the defendant insurance broker and insurance agency about obtaining a personal umbrella insurance policy with the same coverage that the couple had in Georgia. According to the husband, he provided a copy of the Georgia policy so that the agent could help him obtain similar coverage in Tennessee.

November 13, 2019

Federal District Court Denies Defendant’s Motion to Exclude Doctor’s Testimony in Tennessee Tractor-Trailer Accident Case

by Mark Hartsoe

In an east Tennessee truck accident case, the plaintiff has the burden of proof. This means that he or she must provide proof sufficient to convince the jury, by a preponderance of the evidence, that the defendant’s failure to act in a reasonably prudent manner was the proximate cause of his or her injuries. In most cases, this evidence includes the testimony of one or more physicians who are qualified to explain to the jury the nature and extent of the plaintiff’s physical injuries, treatment, and limitations. If the defendant disagrees with the qualifications of the plaintiff’s proposed expert witness(es), a motion to exclude the testimony may be filed. The trial court will then rule upon the motion, and whichever party is aggrieved thereby may eventually seek the review of an appellate court regarding the decision.

Facts of the Case

In a recent federal court case, the plaintiff filed suit against the defendants, seeking compensation for personal injuries he allegedly suffered in a rear-end collision involving his van and their tractor-trailer. The defendants filed a motion to exclude the testimony of the plaintiff’s treating physician and medical expert, arguing that the doctor did not state in his deposition that he was serving as an expert witness, the doctor did not examine any documents other than the plaintiff’s medical records and was not aware of any facts related to the accident, the doctor’s report lacked a method of reasoning as to his conclusion that the accident at issue caused the injuries complained of by the plaintiff, the doctor did not connect his experience to his conclusions, and/or the doctor did not take into account possible causes of the plaintiff’s injuries other than the accident.

The plaintiff responded that, even if the doctor’s report was “technically deficient,” it would not be appropriate for the court to exclude it because any alleged failure to disclose it was harmless in that it did not prejudice the defendants.

October 30, 2019

Tennessee Supreme Court Rules That Claimant Was Not a Necessary Party to Declaratory Judgment Action Between Insurance Company and Insured

by Mark Hartsoe

When someone has automobile accident liability insurance and he or she is sued due to a Tennessee car accident, the insurance company has two responsibilities: to provide a defense for the insured and to indemnify him or her in the event of a judgment. The insured individual also has certain obligations, perhaps the most important of which is the duty to cooperate with the insurance company during the legal proceedings arising from the accident.

When the insured does not cooperate in the way that he or she should, the insurance company may not have a duty to defend or indemnify him or her. Unfortunately, innocent people – namely, those injured by the insured’s negligence – may be negatively affected in such a situation.

Facts of the Case

In a recent case that was heard by the state’s highest court, the plaintiff was an insurance company that filed a declaratory judgment action against the defendant insured, seeking a declaration that it did not have to provide a defense to the insured in a personal injury lawsuit that had been file against him pertaining to an automobile accident or to indemnify him for any damages ultimately awarded to the claimant in that lawsuit. The insured reportedly did not respond, and the trial court entered a default judgment for the insurance company, holding that it did not have a duty to defend or indemnify the insured under the circumstances.

October 16, 2019

Tennessee Appeals Court Reverses Summary Judgment in Medical Malpractice Suit Arising From Woman’s Death Following Emergency Craniotomy

by Mark Hartsoe

Under Tennessee medical malpractice law, an individual who seeks to recover fair compensation (including acts of negligence resulting in a loved one’s alleged wrongful death) must provide pre-suit notice to those against whom the lawsuit will eventually be filed.

Generally speaking, failure to provide this notice can result in dismissal of the plaintiff’s lawsuit based on failure to comply with the state’s health care liability statute. However, there are exceptions to this general rule, as the appellate court held in a recent case.

Facts of the Case

The plaintiff in a recent case was the husband of a woman who died in April 2016, following an emergency craniotomy that was performed due to stroke-like symptoms the woman suffered shortly after being released from a hospital where she had sought medical treatment for an apparent aneurysm. The plaintiff filed suit against the defendant medical providers in the Circuit Court for Hamilton County, alleging that the defendants had failed to adequately and timely treat the decedent, thereby causing her various personal injuries and, ultimately, her death. Pursuant to the requirements of Tenn. Code Ann. § 29-26-121, the plaintiff attempted to provide pre-suit notice of his intent to bring a health care liability action against each defendant named in his complaint and filed his complaint within the 12o-day extension of the statute of limitations provided by the statute.