All posts by Injury & Disability Lawyers

It’s Hard to Live Your Life in Color and Tell the Truth in Black and White!

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How to Properly Prepare Your Personal Injury Client to Testify, by Hubert E. Hamilton and Patrick A. Cruise, has been published by the Tennessee Trial Lawyers Association in the Winter 2018/2019 edition of The Tennessee Trial Lawyer. 

(To read the article, click here, and then go to the Legislative/Press tab, and select TTLA Magazine, and then TTLA Winter 2018/19 Issue Part 2)

In the article, Hamilton and Cruise highlight a quote from musician Gregg Allman:  “It’s hard to live your life in color and tell the truth in black and white.”  The article provides insight into preparing real people to testify in deposition under the intense scrutiny of insurance defense lawyers, with checklists for plaintiff’s counsel to use in making sure nothing is overlooked.

The Hamilton Firm is honored to have its two Super Lawyers published again in a professional journal, sharing their knowledge and experience, gained through years of trial work on behalf of personal injury clients and their families.

 

Sixth Circuit Finds Tennessee’s Caps on Punitive Damages Unconstitutional and Upholds $3,000,000 Punitive Damage Award Against Insurance Company

By | Tort Reform | No Comments

Tamarin Lindenberg had to sue Jackson National Life Co. to recover $350,000 she was owed as the primary beneficiary of a life insurance policy on her ex-husband, Thomas, after he died in 2013. There were contingent beneficiaries listed, to his “surviving children equally”, but there appeared to be no question but that Tamarin was entitled to receive the proceeds of the policy as the primary beneficiary. A district court jury awarded her the $350,000, plus $87,500 (25%) in bad faith damages, and $3,000,000 in punitive damages. The jury found that Jackson Life’s refusal to pay was “either intentional, reckless, malicious, or fraudulent.”

Jackson Life argued that the district court must apply T.C.A. § 29-39-104 and reduce the punitive damages to twice the amount of the compensatory damages. The plaintiff challenged the constitutionality of the cap. The Tennessee Supreme Court declined to answer the certified questions, and the district court reduced the punitive damages to $700,000, rejecting plaintiff’s constitutional challenge.

However, the Sixth Circuit took up the challenge in Lindenberg v. Jackson Nat’l Life Ins. Co., 2018 U.S. App. LEXIS 36097 (12/21/18), and found the caps to be unconstitutional:

“Upon our assessment of Tennessee law, we find that the punitive damages bar set forth in § 29-39-104 violates the individual right to a trial by jury set forth in the Tennessee Constitution. The Declaration of Rights in the Tennessee Constitution provides that “the right of trial by jury shall remain inviolate . . . .” Tenn. Const. art. I, § 6. This broad language does not guarantee the right to a jury trial in every case. “Rather, it guarantees the right to trial by jury as it existed at common law under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.” Young v. City of LaFollette, 479 S.W.3d 785, 793 (Tenn. 2015) (internal quotation marks, alteration, and citation omitted). “Among the essentials of the right to trial by jury is the right guaranteed to every litigant in jury cases to have the facts involved tried and determined by twelve jurors.” State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991).”

Keeping in mind that Tennessee law appears to limit recovery against insurance companies who are guilty of acting in bad faith to 25% plus attorney’s fees, T.C.A. § 56-7-105(a), the Sixth Circuit also held that the district court properly refused to dismiss plaintiff’s punitive damages claim for breach of contract. The Court concluded that the statutory remedy for bad faith was not the exclusive extracontractual remedy for an insurer’s bad faith refusal to pay on a policy. The defendant’s motion for judgment, as a matter of law, on the plaintiff’s statutory bad faith claim was properly denied because Jackson Life’s refusal to pay had no apparent basis under the law. The Court found that clear and convincing evidence demonstrated that the defendant’s refusal to pay and its pursuit of litigation with the plaintiff was at least reckless:

“In this case, the jury faced the question of whether Defendant’s breach of contract involved egregious conduct. As previously discussed, reasonable minds could find that Defendant’s uncertainty defense was merely a post hoc explanation for its refusal to pay on the Policy. Based on the following evidence, reasonable minds could go further, finding that clear and convincing evidence demonstrated that Defendant’s refusal to pay was at least reckless.”

Lindenberg is significant, not only for declaring Tennessee’s punitive damages caps to be unconstitutional, but also for illustrating how an insured, who is mistreated by an insurance company, can eventually obtain justice, after years of litigation and appeals.

No Lien for the County on Personal Injury Case

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Mr. Slaughter, an EMT for Hamilton County, Tennessee, was injured as the result of a car wreck on April 5, 2010. The injury took place while Mr. Slaughter was working for the County. Hamilton County opted out of the Tennessee workers’ compensation program. Instead, the County operated a self funded on-the-job injury program. As part of the on-the-job injury program, the County paid Mr. Slaughter $7,512.29 in benefits related to his injury. Mr. Slaughter also had a tort claim against the at-fault driver. The County filed a lien on the tort case, seeking to recover the amount of money paid to Mr. Slaughter per the on-the-job injury program.
Mr. Slaughter’s claim was settled for $24,600.00. For whatever reason, Mr. Slaughter’s case went to trial after settlement, and he was awarded $58,000.00 in damages by a jury. Thereafter, the trial court held a hearing on the issue of whether the County could recover from Mr. Slaughter’s settlement. The trial court denied the County’s claim, and the matter was appealed.
The reviewing court upheld the trial court’s decision, holding: (a) there was no statutory or contractual lien; and, (b) Mr. Slaughter was not made-whole by the settlement, and as a result, the County was not entitled to subrogation. (Slaughter v. Mills, (Tenn.Ct.App. 12/19/2019).
A few additional notes: As indicated above, the case was settled before trial, and then proceeded to a jury trial. Typically, settlement make a trial unnecessary. One can only guess that there was an additional defendant involved, who was found by the jury at trial to have not been at-fault. Second, the wreck at issue in this case took place in 2010, and yet the issue of a relatively small subrogation/lien claim was not resolved until 8 years later. For a case that was ultimately worth less than $25,000.00 to not be resolved (assuming no further appeals) for more than eight years is troubling.
Regardless, the Slaughter case is important for personal injury lawyers representing individuals who were injured on the job while working for an governmental entity that may not be subject to the workers’ compensation act, and thus, may not have a right of recovery.

Hubert Hamilton & Patrick Cruise Recognized as Plaintiff’s Personal Injury Super Lawyers

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The Hamilton Firm is pleased to announce that two of its four trial lawyers have again been recognized by Thomson Reuters Super Lawyers Magazine as among the state’s Top Rated Plaintiffs’ Personal Injury Attorneys. Both Hubert Hamilton and Patrick Cruise have achieved Super Lawyer status for the current year, as published in Mid-South Super Lawyers, which recognizes top ranked attorneys in Alabama, Arkansas, Mississippi and Tennessee who have attained a high degree of peer recognition and professional achievement.

Hu Hamilton also has the unique distinction of again being recognized as a Top Rated Plaintiffs’ Personal Injury Attorney in Georgia, as just announced by Georgia Super Lawyers.  Mr. Hamilton is licensed in Georgia, North Carolina and Tennessee.

The selections by Thomson Reuters are made by the research team at Super Lawyers. Each year, the team undertakes a multiphase selection process that includes a statewide survey of lawyers, an independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. Only five percent of attorneys are selected to the Super Lawyers list.

Essentials of Tennessee Tort Law: Injury and Death Cases, 2018 Edition

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The Statute of Limitations is ONE YEAR:

  • For “injuries to the person”, T.C.A. § 28-3-104(a)(1)(A).
    • Exception: Where criminal charges are brought against the defendant, the period is extended to two years if listed conditions are met, C.A. § 28-3-104(a)(2).
  • SOL tolled for minors, but statutes of repose will still apply, T.C.A. § 28-1-106.
  • In wrongful death cases, the cause of action accrues on the date of the negligent act or omission, which is NOT necessarily the date of death, Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829 (1872).
  • Medical malpractice:
    • One Year SOL is automatically extended 120 days by complying with the pre-suit notice requirements of T.C.A. § 29-26-121.
    • If the injury is not discovered within the one year period, the SOL can run from the date of discovery, T.C.A. § 29-26-116(a)(2).

Statutes of Repose:

  • Products Liability: Six years from date of injury, and within ten years from date the product was first purchased (exceptions for asbestos and silicone breast implants), T.C.A. § 29-28-103.
  • Construction deficiency causing injury: Four years after substantial completion, T.C.A. § 28-3-202, unless injury occurs during fourth year, T.C.A. § 28-3-203 adds 1 more year.
  • Medical malpractice cases: Three years, T.C.A. § 29-26-116(a)(3).

$750,000 Cap on Noneconomic Damages:

  • Increases to $1,000,000 for “catastrophic loss or injury” (spinal cord injury resulting in paraplegia or quadriplegia, amputation of two hands or feet, 3rd degree burns over 40% of the body), T.C.A. § 29-39-102(d).
  • Caps do not apply where there was specific intent to injure; falsification, destruction or concealment of records; under the influence of drugs or alcohol; or conviction of felony T.C.A. § 29-39-102(h).

Comparative Fault:

  • Modified comparative fault, Plaintiff must be less than 50% at fault, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
  • A defendant is only liable for the percentage of the plaintiff’s damages caused by that defendant’s negligence,
  • Non-parties can be added within 90 days of answer alleging such other person to be at fault even if the statute of limitations has expired, T.C.A. § 20-1-119.

Liability Insurance is Not Discoverable in State Courts:

  • TRCP 26, Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2008).

UM/UIM Coverage (policies issued in TN):

  • Does not stack, offset by liability limits.

 Products Liability:

  • Strict liability can be imposed on manufacturers and sellers under T.C.A. § 29-28-105.

Premises Liability:

  • Generally there must be an unsafe condition creating an unreasonable risk of harm, either created by the defendant, or that defendant knew or should have known about.
  • There is no real distinction between licensees and invitees under TN law. Social guests are owed a duty of reasonable care, Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984).

Medical Malpractice (Health Care Liability):

  • Attorney’s fees are limited to one-third, T.C.A. § 29-26-120.
  • Collateral sources cannot be recovered except for privately purchased insurance benefits, T.C.A. § 29-26-119.
  • Experts must come from TN or a contiguous state (with exceptions) and must have been practicing in that profession or specialty within one year preceding date of injury or wrongful act, T.C.A. § 29-26-115(b).
  • Locality rule applies, T.C.A. § 29-26-115(a)(1).
  • Complicated pre-suit notice, good faith requirements, T.C.A. §§ 29-26-121, 122.

Governmental Tort Liability:

  • Tort claims against the State (T.C.A. § 9-8-307), and against counties and cities (T.C.A. §29-20-403) are capped at $300,000 per claimant/$1,000,000 per occurrence.
  • Claims against the State must be filed with the Claims Commission.

Wrongful Death:

  • Scheme is a confusing “hybrid between the survival and wrongful death statutes”, T.C.A. § 20-5-102, 106, Beard v. Branson, 528 S.W.3d 487, 497 (Tenn. 2017).
  • Suit can be filed by personal representative, parent, surviving spouse (or children or next of kin if no surviving spouse), T.C.A. § 20-5-106, 107.
  • Damages include pecuniary value and consortium damages for next of kin (capped by T.C.A. § 29-39-102 at $750,000, or $1,000,000 for parent leaving minor child), T.C.A. § 20-5-113, Jordan v. Baptist Three Rivers Hospital, 984 S.W. 2d 593 (Tenn. 1999)

Punitive Damages:

  • Clear and convincing evidence, bifurcated trial, limitations on vicarious liability, capped at twice compensatory damages or $500,000, whichever is greater, subject to various exceptions including specific intent, falsifying records, being under the influence of drugs or alcohol, or conviction of felony, T.C.A. § 29-39-104.

Miscellaneous:

  • Hospital liens are limited to one-third of the total recovery (T.C.A. § 29-22-101), and only include charges that were reasonable and necessary, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014)

How to Comply With Georgia’s New Hands-Free Law

By | Highway Safety | No Comments

Effective July 1, 2018, Georgia became the sixteenth state in the nation to adopt a hands-free law for cell phone use while driving. O.C.G.A. § 40-6-241(c) now provides that:

“(c)  While operating a motor vehicle on any highway of this state, no individual shall:

(1)  Physically hold or support, with any part of his or her body a:

(A)  Wireless telecommunications device, provided that such exclusion shall not prohibit the use of an earpiece, headphone device, or device worn on a wrist to conduct a voice based communication; or

(B)  Stand-alone electronic device;

(2)  Write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data on a wireless telecommunications device or stand-alone electronic device; provided, however, that such prohibition shall not apply to:

(A)  A voice based communication which is automatically converted by such device to be sent as a message in a written form; or

(B)  The use of such device for navigation of such vehicle or for global positioning system purposes.”

In our area, thousands of Tennessee drivers cross back and forth between Tennessee and Georgia each day, often several times per day.  Everyone must comply with the new law.  While driving a motor vehicle in Georgia, do not hold your smartphone or cell phone, and do not support such a device with other parts of your body, such as resting it on your leg or in your lap.  You can talk using a hands-free device, however.

Using a phone while “lawfully parked” is okay, O.C.G.A. § 40-6-241(g)(4).

Texting continues to be prohibited, including writing, reading or sending any “text based communication”, O.C.G.A. § 40-6-241(c)(2).

Watching videos or movies, or recording or broadcasting video from wireless telecommunications devices is also prohibited, O.C.G.A. § 40-6-241(c)(3) and (4).

“Use of such device for navigation . . . or for global positioning system purposes” and “watching data related to the navigation” of the vehicle is okay, however, as spelled out by O.C.G.A. § 40-6-241(c)(2)(B) and (3).  It is not entirely clear whether holding a smartphone for navigation purposes is acceptable or not, but the basic principle of the new law is stated in O.C.G.A. § 40-6-241(b):

“A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.”

In a signing ceremony earlier this year in at Georgia Southern University, Governor Deal mentioned one of many tragic events that motivated passage of the new law, House Bill 673:  “Here at the home of Georgia Southern, I think is an appropriate place to sign this legislation,” he said, with pictures of five Georgia Southern nursing students beside him who died because of distracted driving.

Georgia Court of Appeals Enforces One-Year Contractual Limitation Period Against Injured Tenant

By | Premises Liability, Uncategorized | No Comments

In Langley v. MP Spring Lake, LLC, 2018 Ga. App. LEXIS 258 (5/1/18), the Court of Appeals affirmed dismissal of the plaintiff’s personal injury case against her landlord, based on a provision in her lease which required “any legal action” against management or owner within one year of the date the claim or cause of action arose.  The plaintiff had alleged that she fell in a common area of the apartment complex when her foot got caught on a crumbling portion of a curb on March 3, 2014.  She did not file suit until March 3, 2016, exactly two years later.  However, the lease she signed contained the following clause:

“Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.”

The landlord moved for summary judgment, which was granted by the trial court, and the Court of Appeals quickly rejected the plaintiff’s arguments that the clause was ambiguous and contrary to public policy, and affirmed:

“. . . our Supreme Court’s explicit holding that parties to a contract have the power to “agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law,” leads us to conclude that the unambiguous provision at issue is enforceable. Accordingly, any cause of action that accrued during the duration of Langley’s lease—including a cause of action for personal injuries—was subject to the one-year contractual limitation period.””

Cert has been applied for, but unless the Supreme Court overrules this decision, we are likely to see more such language in apartment leases throughout Georgia. Lawyers should now be careful to review leases before deciding whether or not to accept representation in a Georgia premises liability case.

FMCSA expands Personal Conveyance exemption to Hours of Service Rules

By | Trucking | No Comments

Effective immediately, the Federal Motor Carrier Safety Administration (FMCSA) has said it will allow drivers to use personal conveyance status to get to the nearest safe parking spot/rest location after hours are exhausted by a shipper/receiver, or off-duty periods are interrupted by law enforcement.  Will this expansion of the “personal conveyance” exemption be abused by some drivers?  Probably, and so the logs and actual movements of tractor trailers should be carefully examined in any case where time and distance traveled before a wreck looks suspicious.

“The movement from a shipper or receiver to the nearest safe resting area may be identified as personal conveyance,” text of the clarification reads, “regardless of whether the driver exhausted his or her HOS, as long as the CMV is being moved solely to enable the driver to obtain the required rest at a safe location.” (p. 7)

The new interpretation of when it is legal to use a truck for personal conveyance allows use of personal conveyance whether the truck is loaded or not.

Generally, personal conveyance use has not been allowed for any move intended to further the direction of the current or next dispatch, and is intended as truly personal use of the truck, outside the stream of commerce. Further clarifying the change in personal conveyance interpretation, the agency noted it recognized that “the driver may not be aware of the direction of the next dispatch and that in some instances the nearest safe resting location may be in the direction of that dispatch. If the driver proceeds to the nearest reasonable and safe location and takes the required rest, this would qualify as personal conveyance.”

Any driver using personal conveyance should “annotate on the log if he/she cannot park at the nearest location and must proceed to another location.”

Personal conveyance is also newly specifically allowed in other similar circumstances, the agency noted — when a safety official (such as a law enforcement officer) requires a driver to move during an off-duty period. Such a use should be “no farther than the nearest reasonable and safe area to complete the rest period,” according the Federal Register publication.

Travel to home after working “offsite,” as long as the driver’s home is not in the direction of the current or next dispatch, is also explicitly allowed as personal conveyance by the new guidance.

Tennessee Court of Appeals Affirms Severe Spoliation Sanction Against Plaintiff

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A recent opinion, Gardner v. R & J Express, LLC, 2018 Tenn. App. LEXIS 248 by the Tennessee Court of Appeals demonstrates that spoliation is not a one-sided affair. Plaintiffs may be subject to sanctions as well as defendants who do not preserve material evidence. Mr. Gardner was an owner/operator pulling a trailer owned by R & J Express. His wife was a passenger in the tractor.  The tandem axle on the trailer allegedly became loose, while they were on the highway, causing the tractor-trailer to overturn. The plaintiffs’ tractor was damaged and Ms. Gardner was seriously injured.

The plaintiffs filed suit against R & J alleging that the defendant was negligent in its inspection and maintenance of the trailer, and that it failed to comply with federal motor carrier safety standards.  R & J filed an answer denying all allegations of negligence, and then, months later, filed a motion for spoliation sanctions against the plaintiffs, arguing that “Gardner had discarded his tractor by allowing the insurance company to take possession of it, such that he no longer knew of its whereabouts”, and that their “expert needed to inspect the tractor in order to determine whether there existed a mechanical problem that may have caused the accident.”

The plaintiffs’ tractor had been badly damaged in the wreck, and so their insurance company had settled up with them after the wreck, and paid the property damage claims.  As typically occurs, when a vehicle is “totaled”, the insurance company took possession of the tractor.  At a hearing the trial court determined “that R & J had been “severely prejudiced” in its ability to defend against the Gardners’ claims due to the unavailability of the tractor, which the court described as a “key piece of evidence.””  The court ordered the plaintiffs to locate and produce the tractor or their complaint would be dismissed.  Unfortunately for the plaintiffs the tractor had been dismantled and sold for salvage by their insurance company. The trial court dismissed the complaint with prejudice, even though R & J did not request preservation of the tractor until 242 days after the accident had occurred.

Dismissal of a claim is a very severe sanction.  One of the factors the trial apparently considered in imposing such a severe sanction was a spoliation letter plaintiffs’ counsel had sent to the defendants shortly after being retained and only a month after the accident.  “[T]heir attorney sent a letter to Defendant informing him of Plaintiffs’ intention to file an action and Defendant’s responsibility to preserve the relevant evidence. After sending the preservation letter to the Defendant, Plaintiffs signed over the title to the tractor and the tractor was destroyed.”

The Court of Appeals concluded that “[c]learly, Mr. Garner and his counsel should have known that the tractor was relevant to the foreseeable litigation,” and affirmed dismissal of the complaint.

Gardner highlights an aspect of Tennessee law that differs from common law concerning spoliation.  Rule 34A.02 does not require “intent” when it comes to spoliation.  At common law, intent was a crucial element of spoliation; however, in Tennessee intent is not required, and instead, a totality of the circumstances analysis is employed.  (See Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015)). Whether the conduct was intentional is only one of the factors to be considered by the court. In fact, Rule 34A.02 specifically addresses this point: “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.”

The relevant factors to be considered by the trial court can be summarized as follows: (1) culpability; (2) prejudice; (3) whether party knew or should have known the evidence was relevant; and, (4) the least severe sanction available to remedy the prejudice.

Gardner case is a must-read for any attorney attempting to handle cases in Tennessee in involving tractor trailers and other commercial vehicles. Besides just giving the adverse expert an opportunity to inspect the damage to the tractor, the data from the tractor’s “black box” or event data recorder (EDR) should have been downloaded and preserved.  It would have provided crucial information as to the speed of the unit at the time of the accident, including when and whether the brakes were applied, and whether the tractor was on cruise control.   This case emphasizes the importance of hiring experts and investigators on behalf of the plaintiff very quickly, and preserving all evidence, including data from the Plaintiff’s vehicle.

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