• Underinsured Motorist Coverage

In Brown v. Roland, Plaintiff sued Defendant after a car accident for an amount “under $25,000.”  This was the limit of Defendant’s insurance coverage, but Plaintiff apparently sustained significantly higher damages.  After Defendant settled for the full $25,000, Plaintiff served notice to her insurance company of the proposed settlement and her willingness to enter into binding arbitration to settle her claim for underinsured motorist benefits for a higher amount.  The trial court dismissed Plaintiff’s claim against her insurance company, even though she followed all of the procedural requirements, because Plaintiff had already been “made whole” by the settlement for her claimed damages, and there was no remaining claim to arbitrate.  The Court of Appeals affirmed, and the Tennessee Supreme Court granted review on February 16, 2011.

Prediction:  Sarah believes the Court will affirm as a cautionary lesson to attorneys to allege the total amount of damages in their complaint, even if they know the defendant’s insurance company will not be able to match it.  This is a tough result for the Plaintiff and her attorney, who otherwise followed the various statutory requirements to obtain underinsured motorist coverage.  However, one of these requirements is to notify your own insurance company of the initial claim to give it an opportunity to intervene in the suit.  This rule would be pointless if the insurance company is not put on notice of the full amount of damages for which it may be responsible, particularly when, as here, the defendant’s insurance company can pay the entire alleged claim.

• Writ of Certiorari

In Brundage v. Cumberland County, Petitioners filed a Statutory Writ of Certiorari, seeking the review of Respondents' action in granting the right to develop a landfill to Smith Mountain Solutions pursuant to Tenn. Code Ann. § 68-211-704 (the “Jackson Law”).  The statute allows de novo judicial review of county landfill decisions but does not specify procedure.  The Trial Judge dismissed the action on the ground that Petitioners did not file sworn affidavits within 60 days of the decision being appealed, as required by Tenn. Code Ann. §§ 27-8-104 and 106.  The Court of Appeals affirmed, and the Supreme Court granted review on February 16, 2011.

Prediction:  Sarah believes the Court will affirm.  There is discussion in the lower court opinion about the distinctions between statutory and common law writs of certiorari, which the Supreme Court could be looking to clarify.  However, since a sworn affidavit is always required in either action, any clarification on writs will not change the result. 

• Liability for Subcontractors

In Federal Ins. Co. v. Winters, Plaintiff Insurance Company sued Defendant Roofing Company after Defendant’s subcontractor accidentally burned down a house insured by Plaintiff.  The Trial Court granted summary judgment to Defendant, finding that it could not be liable in tort for the negligent act of a subcontractor, unless the Defendant was shown to have negligently hired the subcontractor or exercised control over the work.  The Court of Appeals reversed, holding that there is an implied non-delegable duty under contract law for construction to be performed in a workmanlike manner.  Moreover, Defendant was bound by representations on his website that he had liability insurance, since it was relied upon by the homeowners.  The Supreme Court granted review on February 16, 2011.

Prediction:  Sarah believes the Supreme Court will affirm.  As the appellate court discussed in its opinion, this rule has been recognized by several states and is based upon sound contract principals and public policy.

• Savings Statute and Statue of Limitations in Medical Malpractice Action

In Shaw Howell, Individually and as Administrator for the Estate of Jesse Franklin Browning, Jr. v. Claiborne and Hughes Health Center, Appellant filed a claim in 2007 in the name of an estate which was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. S 29-26- 121. On appeal, the court reversed the decision of the trial court and remanded the matter for further proceedings. The Supreme Court granted review on December 13, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely reinstate the dismissal of plaintiff's claim based on the statute of limitations.

• Discovery Doctrine under the Statute of Limitations

In Norman Redwing v. The Roman Catholic Diocese of Memphis, Plaintiff filed an action against the Catholic Bishop for The Diocese of Memphis, asserting the Diocese was liable for damages arising from the negligent hiring, retention and supervision of a priest, who Plaintiff alleged abused him when he was a child. The Diocese moved to dismiss for lack of subject matter jurisdiction and on the grounds that the statute of limitations prescribed by Tennessee Code Annotated S 28-3-104 had expired. The trial court denied the motions as well as the Diocese's motion for permission to seek an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Diocese's motion for extraordinary appeal under Rule 10 and affirmed the trial court's judgment with respect to subject matter jurisdiction over Plaintiff's claim of negligent supervision, but held that Plaintiff's claims of negligent hiring and negligent retention were barred by the ecclesiastical abstention doctrine. The court also reversed the trial court's judgment with respect to the expiration of the statute of limitations. The Supreme Court granted review on December 13, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely address Judge Kirby's dissent and reinstate the decision of the trial court relating to the expiration of the statute of limitations.

• Evidence of an Acquittal

In State v. Alfred Turner, the defendant was convicted of facilitation of murder. The defendant argues that the trial court erred in allowing the State to reference the acquittals of Rodney Blades and George Tate following their trial for the murder of the victim. Specifically, the defendant argues that by informing the jury that a previous jury had acquitted Mr. Blades and Mr. Tate, the jury was not given an opportunity to independently decide whether the two men were responsible for the victim's murder. The defendant contends that the previous jury verdict would likely weigh heavily in the minds of the present jury and that any probative value of the evidence of the acquittals was substantially outweighed by the danger of unfair prejudice. ...... Here, the defendant's theory of defense was that Mr. Blades and Mr. Tate actually committed the murder. The defendant used the testimony of witnesses from their trial to establish his defense, but he sought to prevent the State from telling the jury that the two had been acquitted at trial. The trial court denied the defendant's motion in limine regarding the issue. The basis of the defendant's argument on appeal is that he was denied a fair trial because he contended that Mr. Blades and Mr. Tate were responsible for the victim's murder, the jury was allowed to hear that they had been acquitted following their own trial. The general rule is that the admission of evidence of a judgment of acquittal is inadmissible as being irrelevant. Evidence of a prior acquittal is not relevant because it does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime. .... Even if a court were to find the information of the acquittal relevant, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and the possibility of misleading the jury. ... The trial court should not have allowed the evidence of the prior acquittals. The inclusion of this information was likely to have affected the result of the trial; therefore, we are compelled to remand the case to the trial court for a new trial. Judge McMullen, dissented. Here, the State did not attempt to introduce the actual judgments of acquittal in this case. Rather, the acquittal evidence in this case originated from witness/defendants who were present at the previous trial, intimately involved in the case, and available to be cross-examined by the defense. As such, their testimony does not constitute hearsay. Moreover, the probative value of the testimony regarding Tate's and Blade's acquittal was not outweighed by the prejudicial effect that the jury would be misled or confused in Turner's case. In fact, this case demonstrates exactly the opposite. Over half of the proof at trial, submitted by the State and the defense, consisted of evidence and testimony from the previous trial, which occurred over ten years ago. The proof detailed Tate and Blade's involvement. Aaron Williams, another prosecution witness charged with various crimes related to this case, also testified that he was testifying against Turner in exchange for a reduced sentence. Given these unique facts and circumstances, it is more likely that the jury would have been misled and confused the issues had they not heard that Tate and Blades were arrested, charged, and acquitted. The Supreme Court granted review on December 13, 2010.

Prediction: David believes the Tennessee Supreme Court will likely adopt Judge McMullen's dissent and reinstate the conviction. The Supreme Court will tailor a highly fact-specific exception to the general rule prohibiting evidence of an acquittal.

• Products Liability Statute of Limitations when Manufacturer Becomes Insolvent

In Lind v. Beaman Dodge, plaintiff was injured in a Chrysler truck sold by Beaman and sued the seller in June 2007. In December 2007, the trial court entered an order of nonsuit in which Beaman was dismissed without prejudice. Tenn. Code Ann. S 29-28-106 bars products liability actions against sellers unless certain conditions are met, including insolvency of the manufacturer. In 2009, Chrysler was declared bankrupt and plaintiff again filed suit against Beaman. Beaman moved to dismiss on the ground that the suit arose more than one year from the date of the previous nonsuit. The trial court denied the motion, holding that the one year statute of limitation did not begin to run until the manufacturer was declared insolvent. The trial court then granted Beaman's motion for interlocutory appeal, which was declined to be heard by the Court of Appeals. The Supreme Court granted review of the interlocutory appeal on November 15, 2010.

Prediction: Although Sarah has reviewed the trial court's order denying Beaman's motion to dismiss and its order granting appeal, Sarah will not make a prediction due to the lack of a full appellate record. She will, however, note that the trial court considered and relied upon a similar case, Braswell v. AC and S, Inc., 105 S.W.3d 587 (Tenn. Ct. App. 2002), in which the court held that construing the limitations period to run before bankruptcy would render the statute meaningless.

• Double Jeopardy; Lesser Included Offense

In State v. Cross, the defendant led police on a high-speed chase and was convicted of two counts of reckless endangerment with a deadly weapon and felony evading arrest with risk to others. On appeal, the Court of Criminal Appeals held that the trial court erred by enhancing the sentence based on "lack of hesitation about committing a crime when the risk to human life was high" because the same proof required to show the enhancement was used to convict of the underlying offense. However, the court held the error harmless because the guidelines are advisory and the record showed the trial court would not have altered its sentence in the absence of the enhancement. The court, sua sponte, vacated one of the reckless endangerment convictions on the ground that the simultaneous conviction for evading arrest constituted double jeopardy: "Although the statutes require proof of different elements and appear to serve different goals, the way the prosecution was carried out in this case overwhelmingly demonstrates that the appellant is being punished for the same conduct in both counts." The court noted that it had previously addressed the same issue in two cases with differing results. On November 15, 2010, the Supreme Court granted review. In its order, the Court also directed briefing on "whether, in light of State v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002), it was plain error to convict Mr. Cross in count one of felony reckless endangerment when that offense is not a lesser-included offense of the charged offense."

Prediction: Because this case appears to present exactly the same lesser-included offense issue as in Moore, David believes the Court will vacate the reckless endangerment conviction stemming from the first count, which was aggravated assault. He also believes the Court will uphold the double jeopardy ruling and the finding of harmless error on the enhancement issue.

• Default Judgment

In Discover Bank v. Morgan, Discover Bank filed a collection claim against Ms. Morgan for a $16,341.52 debt on a credit card issued to her now-deceased husband. Morgan filed a counterclaim asserting libel and other claims pursuant to the federal Fair Credit Reporting Act and the Tennessee Consumer Protection Act. A default judgment was issued against Discover after its attorney did not file a response or show up at the hearing. Discover then filed a Motion to Set Aside Default Judgment "pursuant to Rule 60.02," which was denied. On appeal, Discover argued that the trial court erred by applying the standard for Rule 60 motions, rather than Rule 54 motions, and that its attorney's actions constituted excusable neglect. The Court of Appeals upheld the denial of the Motion to Set Aside because the record did not show excusable neglect and "If the Trial Court should have analyzed the motion and amended motion pursuant to Rule 54, then it was Discover who led the Trial Court astray." On November 15, 2010, the Supreme Court granted review.

Prediction: Sarah believes that the Court will remand the denial of the Motion to Set Aside and instruct the lower court to consider the appeal under Rule 54. David thinks the Court will uphold the denial and is using the case to reinforce the message to attorneys that they should not neglect their cases and should avoid default judgments.

Continue Reading