Articles Posted in Tennessee Law

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.

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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.

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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.

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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.

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The so-called “Opioid Epidemic” is big news these days, as more and more claims are being filed against the makers of pharmaceutical products like hydrocodone, oxycodone, oxymorphone, OxyContin, Roxicodone, and Opana by both individuals and government officials.

Here in Tennessee, several attorneys general have sought to assert claims against those who make these and other opioid drugs, but of course the manufacturers have done their best to resist these efforts if at all possible.

Earlier this month, the Tennessee Court of Appeals issued a decision in one such matter, holding that a case previously dismissed by a state court judge could go forward against certain pharmaceutical companies under a state statute that provides a civil remedy against those who participate in the illegal drug trade. If you or a loved one is suffering from the use of such medications, a Tennessee personal injury attorney may be able to determine whether you have a claim.

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A Knoxville medical malpractice case is never easy. Doctors and their insurance companies fight incredibly hard against a finding of liability, and, even if a case makes it to a jury trial, jurors can be reluctant to find that a doctor is hospital has been negligent. This much is to be expected.

However, it may come as a surprise to an average Tennessean that many medical malpractice cases are dismissed annually based not on a finding that the plaintiff failed to prove negligence but because of some technicality in the voluminous amount of paperwork that must now accompany a malpractice claim.

This is one of the many reasons that it is critically important to contact an attorney as soon as you suspect you or a family member has suffered from an act of medical malpractice; the sooner you can get started on your case, the more likely you are to be able to jump through the many “hoops” that have become part of our law through the endless lobbying efforts of the medical establishment and their insurers.

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A Tennessee personal injury case can involve multiple defendants, some of whom may point to finger of blame at one or more of the others. In some situations, the plaintiff may be able to settle his or her claim(s) against one or more of the defendants, leaving the defendants to continue to fight among themselves about how much each rightfully owes. When this happens, it is not usual for a liability insurance company to be substituted as a real party in interest.

Facts of the Case

In a federal district court case in which a decision was issued earlier this year, the plaintiff was man who was reportedly electrocuted while working at a fair and music festival in Memphis in 2016. The accident happened when a ride that was plugged into the same generator as the ride upon which the plaintiff was working became energized by an overhead powerline, causing electricity to flow through the first ride, through the generator, through the second ride, and into the plaintiff’s body.

The plaintiff brought suit against four different amusement companies in the United States District Court for the Western District of Tennessee. Two of the defendants brought crossclaims against a third defendant, seeking indemnification and a defense. That defendant sought summary judgment on the crossclaims, urging that its contract with one of the two defendants did not obligate it to indemnify the two defendants for their defense costs in the case. The plaintiff and the two defendants filed a joint motion to dismiss the crossclaims based on a settlement agreement. As part of the settlement agreement, the plaintiff had the right to purchase an annuity; the first two defendants paid $2,075,000 to fund the annuity. The other two defendants did not contribute to the settlement payment.

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Generally speaking, a Tennessee personal injury lawsuit must be filed within the one-year statute of limitations for negligence cases if it is to survive a motion for summary judgment. This seems like a straight-forward rule, but this is not always so. For example, in some cases, exposure to a product may cause serious injury or even death, but these effects may take many years to manifest themselves.

Tennessee also has a statute of repose that places additional limitations on the plaintiff in a personal injury or wrongful death case, including one stemming from injuries caused by exposure to asbestos. In some situations, an injured person may have been exposed to multiple sources of asbestos over a multi-year period, creating further issues that must be hashed out during the litigation process.

Facts of the Case

In a recent case, the plaintiff was a man who developed mesothelioma after working at a chemical plant in east Tennessee for approximately 20 years. He (along with his wife) filed multiple product liability claims against the defendants (an asbestos manufacturer and others), asserting claims for the defendants’ respective alleged involvement in the male plaintiff’s exposure to asbestos in the workplace.
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Negligence can arise in many different contexts – automobile accidents, medical malpractice, and even situations in which someone slips and falls on business premises. Slip and fall (or “premises liability” cases) are often hotly disputed, as the landowner typically seeks to avoid liability for the accident by casting blame on the injured party. However, some east Tennessee premises liability cases are successful, resulting in an award of monetary compensation to the plaintiff, so it is important to talk to a lawyer if you think you may have a claim.

Facts of the Case

In a recent case, the plaintiff was a visitor who reportedly slipped and fell in an icy parking lot at the defendant hospital. The plaintiff had been at the hospital for some 12 hours on the day of her fall (for the birth of a grandchild); at the time of her arrival, the parking lot appeared wet but did not contain snow or ice. As the plaintiff returned her car that evening, she walked between two parked vehicles, slipping on a patch of ice that had apparently refrozen during the evening hours and fracturing her patella.

According to the plaintiff’s allegations in her complaint against the defendant, the defendant was negligent because it failed to remedy the dangerous condition created by accumulated ice in its parking lot, insomuch as it did not take affirmative steps to prevent melted snow from refreezing prior to the time of the plaintiff’s fall. The defendant filed a motion for summary judgment, which the circuit court granted. The plaintiff appealed.
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Under current Tennessee law, claims that were once referred to as “medical malpractice” cases are now referred to as “healthcare liability” actions. Although the basic idea is the same – a doctor, nurse, or hospital breached the standard of care owed to a patient, proximately causing injury or death to a patient – the rules are more complex than they used to be.

Timing is important, as there should be strict compliance with the applicable statute of limitations and statute of repose, and there are now several pre-suit requirements (including consultation with an expert medical witness) that must be met if the plaintiff is to ever have his or her day in court.

Of course, even when all of the procedural “i”s are dotted and “t”s crossed, most medical negligence defendants will still seek to have the plaintiff’s case dismissed if at all possible.

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