Category Archives: General

New Laws Take Effect in Tennessee

By | General | No Comments

The Tennessee General Assembly adjourned on May 1, producing 597 new laws, including the following:

 “Loser Pays”: A party who is represented by an attorney can now be required to pay costs and attorney fees, up to $10,000, if a civil proceeding is dismissed for failure to state a claim. There are six exceptions to the rule, including withdrawing the complaint or in good faith amending the complaint to state a claim upon which relief may be granted, and filing a good faith, non-frivolous claim for the express purpose of extending, modifying, or reversing existing precedent. The new law applies to claims filed on or after July 1. 2012. 2012 PC 1046.

 Qualified Protective Orders: Effective July 1, 2012, upon the filing of any “healthcare liability action,” the defendant can now petition the court for a qualified protective order allowing the defendant and their attorneys the right to obtain protected health information during interviews, outside the presence of the plaintiff or his/her attorney, with the patient’s treating “healthcare providers.” 2012 PC 926.

 Trespassers:  An owner of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing an injury after May 10, 2012. The new law also addresses when a possessor of real property is subject to liability for physical injury or death to a child trespasser. 2012 PC 922.

 Pain Management in Workers Compensation Cases:  Effective July 1, 2012, a new law includes within the definition of “utilization review” the prescribing of one or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding 90 days from the initial prescription of such controlled substances.  As a condition of receiving pain management that requires prescribing of Schedule II, III, or IV controlled substances, an injured or disabled employee may sign a formal written agreement with a physician prescribing the controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions. 2012 PC 1100.

 Interest Rate on Judgments: The interest rate on judgments in Tennessee has been 10%.  A new law sets the interest rate for judgments entered between July 1 and December 31 at 2% less than a formula rate per annum published by the Commissioner of Financial Institutions for June of the same year. For any judgment entered between January 1 and June 30, the interest rate on judgments is 2% less than the formula rate per annum published by the commissioner for December of the prior year. 2012 PC 1043.

Tennessee Supreme Court denies workers compensation benefits to electrical lineman who did not use his rubber gloves.

By | General | No Comments

In TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES, the trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with T.C.A. Sec. 50-6-225(e)(3) (2008).  After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence established that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation were found not compensable by the Supreme Court. The judgment of the trial court was reversed and the case was dismissed.  This is another scary decision from the Supreme Court on this issue.  We fear it will only encourage more claims of wilfull violation of safety rules by employers, who frequently pressure employees to take short cuts while maintaining a facade of written safety rules.

Transportation Secretary LaHood Calls for a National Ban on Distracted Driving

By | General | No Comments

US Transportation Secretary Ray LaHood is pushing for a national law banning the use of cell phones while driving. While speaking at an anti-distracted driving summit, in San Antonio,which was attended by medical personnel, government officials, and safety advocates, LaHood characterized distracted driving as a “national epidemic” and said that a federal ban would be the way to prevent it. LaHood said that he doesn’t think other distracting behavior, such as eating or applying make-up, should be banned by the federal government since “not everyone does that.” LaHood added, “But everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”

        New survey finds distracted driving a growing problem. WRC-TV Washington (4/26, Wilkins) reported on its website, “New statistics from the NTSB show just how big of a problem distracted driving in work zones really is in the Washington region.” A new survey released “by Transurban-Fluor, in partnership with AAA Mid-Atlantic, shows that 40 percent of drivers in work zones use their cell phones.” NTSB Chairman Deborah Hersman commented, “NTSB issued a recommendation last December recommending to states that they ban talking or texting on the phone while behind a wheel, except for emergency situations.”

        The Washington Post (4/26, Halsey) reports, “With miles of highway construction underway in Northern Virginia, the region’s police officers say work-zone accidents have increased dramatically because drivers are using mobile devices to talk or text.” A new survey by AAA and Transurban “of 409 police officers who patrol Northern Virginia’s roadways, found that cellphone use was to blame in one in three work-zone accidents.” Approximately “80 percent said banning cellphone use behind the wheel would dramatically reduce road accidents.” The article also notes last year’s recommended ban on all cellphone use while driving from the NTSB.

Truck Driver Denied Workers Comp Benefits for Violation of Hours of Service Rules

By | General | No Comments

In a recent decision from the Tennessee Workers Compensation Panel, Keith v. Western Express (2/16/12) , a truck driver who says he was ordered to deliver a load in California by a certain time was denied workers compensation benefits because he violated Federal Motor Carrier Safety Regulations governing hours-of-service while trying to get there on time.   He apparently went to sleep at the wheel and wrecked his truck in New Mexico.  The driver presented the case as an example of damned if you do and damned if you don’t.  The driver felt that he would have been fired or disciplined for being late.  But, it was clearly impossible for him to have made the delivery deadline and not violated the hours-of-service rules.  When the wreck occurred, he had driven over 36 hours without a 10 hour break, according to the on-board Qualcomm system.  

 There is no excuse for a truck driver falling asleep at the wheel of a loaded tractor-trailer, and now Tennessee may deny workers compensation benefits to drivers who are injured while violating Federal Motor Carrier Regulations, provided there is a causal connection between the violation and the injury.

Verdict of $40,651.78 in Hamilton Circuit Court

By | General | No Comments

On March 1, 2012, a Hamilton County jury returned a verdict of $40,651.78 in Circuit Court in favor of Plaintiffs, Phyllis and Rick Bradley.  Phyllis had been struck in the head by a falling stroller at the Toys R Us store on Highway 153 in Chattanooga on September 2, 2008.  Toy R Us admitted liablity but contested the nature and extent of injury.  She suffered from head pain and burning on her head, with electrical like zaps.  The medical term for these conditions is posttraumatic injury to the nerve, scalp region which is resulting in the abnormal dysesthesias, paresthesias, with characteristics of complex regional pain syndrome, according to Dr. David Rankine.  Hu Hamilton and Patrick Cruise represented the Plaintiffs in Phyllis A. Bradley and Richard Bradley v. Toys “R” Us – Delaware, Inc.  09C957.

Hair testing and Truck Drivers

By | General | No Comments

 The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.  Mandatory drug testing is required for five specific categories of drugs (referred to as the SAMHSA 5, previously called the NIDA-5):

1.  Cannabinoids (marijuana, hash)

2.  Cocaine (cocaine, crack, benzoylecognine)

3.  Amphetamines (amphetamines, methamphetamines, speed)

4.  Opiates (heroin, opium, codeine, morphine)

5.  Phencyclidine (PCP)

There is an emerging trend with some of the more safety orriented trucking companies like JB Hunt, Schneider, C.R. England, Roehl Transport, Gordon Trucking, that have replaced the DOT required urine test with the radioimmuneassay of hair (RIAH) test, commonly known as hair testing.

Hair testing is more expensive, so why are some companies using it?  Hair testing reveals 12 times more positive tests, or failures, than urine testing.  Experts report that illegal drugs can be detected in hair for upwards of 90 days.  Not only does hair testing give a longer window of detection, detecting drug users who abstain for a short period of time, but there is an inability to tamper with the test, unlike mandatory urine testing.  Currently, there are no known adulterants for hair tests.  Since hair tests analyze the drugs inside the hairshaft, external contaminants/chemicals have no effect. 

 
drug detection periods 
The small percentage of carriers utilizing hair testing are more readily and accurately identifying illegal drug users.  In the long run, they are probably saving millions of dollars and keeping drug users out of their trucks, thereby reducing the number of catastrophic wrecks on our highways.

Improper Solicitation from a Lawyer?

By | General | No Comments

Lawyers in all states, including Tennessee and Georgia, are governed by a set of rules regarding conduct, ethics, and professionalism.  Subject to certain specific exceptions, it is generally inappropriate for a lawyer to “solicit” business from “specifically identified persons.”  In other words, the client is supposed to choose a lawyer, instead of the lawyer choosing the client.  Nevertheless, a very small number of lawyers obtain police accident reports in an attempt to identify individuals injured in car wrecks.  Once those individuals are identified, a letter from the law firm is sent to the accident victim in an attempt to obtain business.  In Tennessee, the Rules of Professional Responsibility permit such communications if the lawyer has a familial or prior professional relationship.  In all other cases, such communications (solicitation) shall not be sent until more than 30 days have passed since the accident or disaster occurred.   If you are contacted by an attorney immediately after you have been injured in a wreck, it is possible that you are being improperly solicited by a lawyer that is disregarding the rules of professionalism that govern lawyers.  Do you want that law firm representing you?  Improper solicitation is an unsavory practice that should not be tolerated. 

 

New Hours of Service Regs Fail to Reverse 11 Hour Rule for Truck Drivers

By | General | No Comments

New hours of service regulations for truck drivers have failed to reverse the 2003 change by the Bush administration increasing to 11 hours the time drivers can be behind the wheel each day.  The new rules by the Federa Motor Carrier Safety Administration, 49 CFR §395.3, offer some improvements, including a shorter work week and a required 30-minute rest break after eight hours on duty. For nearly 70 years, the limit had been 10 hours, until the 2003 change. 

 “It’s no secret that truckers often drive when they’re tired. In a 2005 survey the agency commissioned, 65% of truckers reported they sometimes or often felt drowsy while driving. And nearly 48% said they had actually fallen asleep while driving during the previous year. Putting weary drivers behind the wheels of 40-ton rigs hurtling down interstates is a formula for tragedy.”

 The foregoing is a good quote from a commentary on the change, or lack thereof, appearing in USA Today, entitled, “New Transportation Rules Fall Short.”  The full article can be viewed at:

 http://www.usatoday.com/news/opinion/editorials/story/2011-12-28/pilot-fatigue-trucker-rules/52258154/1  

 The Final Rule on hours of service can be reviewed at http://www.fmcsa.dot.gov/documents/hos-final/HOS-Final-Rule.pdf

Christmas Tree Fire Case on Front Page of Chattanooga Times Free Press

By | General | No Comments

Plaintiff, Norma O’Neal, was interviewed for an article entitled “Christmas tree fires rare but destructive” which appeared on the front page of the Chattanooga Times Free Press on Saturday, December 17, 2011.  Norma has only a small artifical Christmas tree on the table in her rental house this year, but it is the first Christmas tree she has had since her home burned down two years ago, just two weeks before Christmas 2009.    The 2009 fire started at the Christmas tree she had just put up the night before.  The article quotes Chattanooga Fire Department spokesman, Bruce Garner, who explains what can happen when a Christmas tree catches fire:  ” . . . it can be catastrophic.  It generates an incredible amount of heat and flames in seconds.”  Although Norma won her case against Nationwide in November, with a jury verdict totaling $784,676, she has “yet to receive a dime” as Nationwide has filed for a new trial.  Norma has lived in five different places in the past two years, including two motels, and the article concluded with her statement that  “It has been a terrible ordeal.” 

The Hamilton Firm reminds everyone to be very careful with real Christmas trees.  As beautiful as they are, they can explode like a firebomb inside your home, if the tree ever catches on fire.  Keep the tree branches away from electrical outlets and unplug the lights from wall when the tree is unattended.  Keep the tree far away from heaters and fireplaces.  And, keep the water resovoir full.

What should you look for when choosing a lawyer? How to Choose a Lawyer
Nav Map