Category Archives: Uncategorized

Tennessee Supreme Court Holds That Wrongful Death Claim Belongs to Surviving Spouse

By | Uncategorized | No Comments

Although the circumstances were unusual, the Tennessee Supreme has clarified that under Tennessee law a wrongful death claim did not belong to the decedent, but passed to decedent’s husband upon her death, Linda Beard v. James William Branson and Trinity Hospital, L.L.C.   The husband had filed a pro se wrongful death malpractice lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, he retained an attorney and filed an amended complaint. The decedent was also survived by two daughters. The defendants filed motions for summary judgment arguing that the husband’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio.  They contended that the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was therefore time-barred. The trial court denied the summary judgment motions and held a jury trial where the jury found both defendants liable and awarded damages.  The Court of Appeals had reversed and held that the claim belonged to the decedent and therefore the husband could not file a lawsuit without a lawyer.

This all started back in 2004, when Ruth Hartley was admitted to Trinity Hospital in Erin, Tennessee for elective colon surgery.  She developed complications from the surgery and died.  It is a sad commentary on our judicial system that this case has gone on for 13 years.  A unanimous Supreme Court held that under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106, reversing the Court of Appeals, but sending the case back to the intermediate appellate court for consideration of other issues.

The opinion by Justice Holly Kirby is recommended reading, as she discusses Tennessee’s confusing statutory wrongful death scheme, which she describes as “a hybrid between the survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.'”

Only New Law Taking Effect in Georgia July 1st Affecting Tort Cases Involves Minor Change to Venue Provisions of State Tort Claims Act

By | Uncategorized | No Comments

Typically, many laws passed by the Georgia legislature take effect July 1st.  This year, the only substantive change affecting some civil lawsuits is a minor change to the venue provisions of the State Tort Claims Act. Senate Bill 126 amended the Code section relating to venue for tort actions against the State by adding certain specifications. Currently, under O.C.G.A. § 50-21-28, tort actions against the state must be brought in the state or superior court of the county where the loss occurred; SB 126 requires that tort actions against the state be brought in the state or superior court of the county where the tort that gave rise to the loss occurred. The bill also codified longstanding case law indicating that wrongful death actions against the state may be brought in the county where the tort giving rise to the loss occurred or the county where the decedent died. This bill resulted from the State’s concern that a 2015 case interpreted the “where the loss occurred” to allow plaintiffs to file tort claims act cases in any county where they experienced symptoms from the injuries sustained in the incident giving rise to the tort claim or in any county where they incurred medical bills for the injury. The new provisions only affect causes of action filed on or after July 1, 2017.

Here is the full text of the amended statute, § 50-21-28:

“All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the tort giving rise to the loss occurred; provided, however, that, wrongful death actions may be brought in the county wherein the tort giving rise to the loss occurred or the county wherein the decedent died, and provided, further, that in any case in which an officer or employee of the state may be included as a defendant in his or her individual capacity, the action may be brought in the county of residence of such officer or employee. All actions against the state for losses sustained in any other state shall be brought in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.”

FMCSA Backs Off From Increasing Minimum Liability Insurance Limits

By | Uncategorized | No Comments

For over two years, the Federal Motor Carrier Safety Administration has been considering requiring trucking companies to carry more liability insurance to protect the public. Unfortunately, under the Trump administration, FMCSA has just withdrawn its November 28, 2014 advance notice of proposed rulemaking (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers. FMCSA is authorized to establish minimum levels of financial responsibility for motor carriers at or above the minimum levels set by Congress. In the ANPRM, FMCSA sought public comment on whether to exercise its discretion to increase the minimum levels of financial responsibility, and, if so, to what levels. Currently motor carriers, i.e. trucking companies, only have to carry $750,000 of liability insurance. The agency was considering increasing the minimum limits to as much as $5,000,000.  FMCSA now claims that after reviewing all public comments to the ANPRM, it has determined that it has insufficient data or information to support moving forward with a rulemaking proposal, at this time.  That means they have bowed to political and lobbying pressure from the trucking industry and backed down, leaving the motoring public at risk from financially irresponsible operators who cause catastrophic wrecks.

Georgia Nursing Home Arbitration Clauses Held Binding on Family Members in Wrong Death Cases

By | Uncategorized | No Comments

The Georgia Supreme Court has held that an arbitration clause signed by the decedent (or by a person having power-of-attorney for the decedent) in a nursing home case is enforceable and requires the decedent’s wrongful-death beneficiaries to arbitrate their claims, United Health Services v. Norton, S16G1143 (3/6/17).  The Court of Appeals had held otherwise, 336 Ga. App. 51, 55 (Ga. App. 2016) and got reversed.  The Supreme Court reasoned that a wrongful death action is a derivative claim and is subject to any defenses that would have been good against the decedent.

Arbitration clauses, governed by the Federal Arbitration Act, are common in the admissions paperwork at nursing homes, often signed without question by the patient or the person holding a power of attorney for the patient.

In the Norton case a person with a power of attorney signed the admitting papers for the patient, including an arbitration clause with the following language:

“This Agreement shall inure to the benefit of and bind the Patient/Resident and the Healthcare Center, their successors, assigns, and intended and incidental beneficiaries…. The term “Patient/Resident” shall include the Patient/Resident, his or her guardian, attorney-in-fact, agent, sponsor, representative, or any person whose claim is derived through or on behalf of the Patient/Resident, including, in addition to those already listed in this Paragraph, any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”

Patients and family are typically not thinking of bringing wrongful death lawsuits against the nursing they are trusting to provide care, but the nursing homes are, and the Supreme Court has now held that the clause was binding on the deceased’s family members.  Arbitration is an expensive and burdensome process that can now supersede the constitutional right to trial by jury.

Any lawyers who prepare powers of attorney and/or advance directives should consider including the following language (or something similar) to sidestep this unfortunate ruling:

Notwithstanding any other provision of this Power of Attorney, my Agent does not have the authority to waive my right to a jury trial or my right to assert in any forum any claim I may have or a claim that may relate to me, such as a claim for personal injury or wrongful death. My Agent has no authority to enter into any agreement under which I am required to enter arbitration or any other proceeding, binding or otherwise.

 

Georgia Chiropractor Alleged to Have Falsified Thousands of DOT Physical Exams for Truckers

By | Trucking, Uncategorized | No Comments

Truckers came by the thousands from all across the country, pulling into into the Petro Stopping Center, a 24-hour truck stop off Interstate 285 in Atlanta, where they could find coffee and CB radios, tires and a tattoo shop, and a chiropractor, known as “Dr. Tony.”  Dr. Anthony Lefteris got federally certified in 2014 to conduct the DOT medical exams that truckers must pass to get their commercial driver’s license (CDL). Lefteris is alleged to have completed nearly as many exams in an hour as a typical federally certified examiner did in a month. In less than three years, he issued more than 6,500 certificates of good health to truckers from 43 states!  But they appear to have been falsified.

An anonymous tip from a trucker led to Lefteris’s arrest in December and he now faces criminal charges of falsifying documents filed with a federal agency.  All his bogus DOT cards have been revoked by FMCSA, and this could have repercussions throughout the industry, as those drivers may have been operating commercial vehicles illegally.

The Federal Motor Carrier Safety Administration (FMCSA) Issued the Following Public Notice December 28, 2016:

On December 1, 2016, a Criminal Complaint in the U.S. District Court, Northern District of Georgia, was issued against Anthony Lefteris, Doctor of Chiropractic (D.C.), National Registry of Certified Medical Examiners (“National Registry”) No. 8343724872, of Atlanta, Georgia.  Dr. Lefteris was charged with Making False Statements, in violation of Title 18, U.S.C. § 1001; and Making a False Entry in U.S. Department of Transportation’s Records with the Intent to Impede and Influence the Proper Administration of the U.S. Department of Transportation, in violation of Title 18, U.S.C. § 1519.

The investigation initiated by the U.S. Department of Transportation determined that while listed as a Certified Medical Examiner on the National Registry, Dr. Lefteris conducted a number of medical certification examinations that far exceeded a reasonable number of examinations.  An undercover investigation conducted by the Georgia Department of Public Safety revealed that the purported medical examinations conducted by Dr. Lefteris at a truck stop in Atlanta, Georgia, exhibited a pattern whereby the examination was incomplete, required tests were not performed and information on the medical examination form was falsified.

The Federal Motor Carrier Safety Administration (FMCSA) removed Dr. Lefteris from the National Registry on December 2, 2016.

USDOT/FMCSA intends to revoke all certificates issued by Dr. Lefteris to commercial motor vehicle operators within the past two years.

FMCSA offices nationwide are presently working with State Driver’s Licensing Agencies to obtain the contact information for all affected drivers. FMCSA is contacting these drivers and informing them that they have THIRTY DAYS to obtain a Medical Examiner’s Certificate from a Medical Examiner with valid certification on the National Registry.

Drivers and carriers with further questions should contact USDOT/FMCSA via email at FMCSAMedical@dot.gov

Email links icon

or by calling 1-202-366-4001.

Patrick Cruise and Hu Hamilton Again Recognized as Mid-South Super Lawyers

By | Uncategorized | No Comments

Mid-South Super Lawyers, a publication of Thomson Reuters, has once again recognized Patrick Cruise and Hu Hamilton as Super Lawyers in the plaintiff’s personal injury practice in Tennessee.  Only eight attorneys in the Chattanooga area have earned such recognition, and The Hamilton Firm LLC is proud to have two of them serving our clients, as our firm strives to reach the highest levels of advocacy and professionalism in the pursuit of justice for our clients.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.  Hu Hamilton is also named as a Georgia Super Lawyer for plaintiff’s personal injury.

Georgia Court of Appeals Adopts “Trip Specific” Approach to Determining Coverage Under MCS-90 Endorsement in Trucking Cases

By | Trucking, Uncategorized | No Comments

A motor carrier engaged in interstate commerce and subject to Federal Motor Carrier Safety Regulations (FMCSR) must have minimum liability coverage of $750,000. The insurer must provide a MCS-90 endorsement to the liability policy, and that endorsement is supposed to be filed with FMCSA.

In Grange Indemnity Insurance Company v. Burns, 2016 Ga. App. LEXIS 365, decided June 23rd, the Georgia Court of Appeals held that an MCS-90 endorsement attached to a commercial auto policy did not provide additional insurance coverage to the trucking company even though it was registered as an interstate motor carrier.

The trucking company, J. B. Trucking, was insured under a Grange Indemnity commercial auto insurance policy with limits of only $350,000.00. But the policy also contained an MCS-90 endorsement (with minimum coverage of $750,000.00 for nonhazardous materials). The plaintiff was injured as result of their driver’s negligence, resulting in a jury verdict of $3.3 million, but the Court of Appeals limited the plaintiff’s recovery from the insurance proceeds to $350,000, holding that the crash occurred during an intrastate delivery (involving nonhazardous materials), as opposed to during an interstate trip, and therefore the MCS-90 endorsement did not provide coverage.

The Court found that it was undisputed that the truck driver, Franks “was engaged in a trip involving purely intrastate commerce and that he was transporting nonhazardous commodities. Franks picked up a box truck in Monroe, Georgia, and drove the truck to Norcross, Georgia, where he picked up a load of “sales papers” and delivered them to a paper company in Newnan, Georgia. The sales papers were manufactured in Georgia and were destined for end users located in Georgia. While he was on his way from Newnan to Monroe to return the empty box truck, Franks struck the vehicle Burns was driving.”

The plaintiff argued unsuccessfully that once an MCS-90 endorsement is issued to a registered interstate carrier, the endorsement should apply regardless of whether a “specific trip” is intrastate or interstate. Burns argued that a Georgia citizen injured by an interstate motor carrier conducting intrastate commerce of nonhazardous materials at the time of an accident should be given the same amount of protection as a citizen injured by the same truck, owned by the same carrier, and covered by the same insurance policy, but whose cargo may be destined for another state. Burns argued that the MCS-90 endorsement should apply to all J. B. Trucking trips because J. B. Trucking was registered as an “interstate” carrier and J. B. Trucking had on many other occasions been involved in interstate trips.

There is a split of authority on this issue nationwide, as there are other courts which have held that the MCS-90 endorsement will apply to interstate and intrastate accidents (involving nonhazardous materials). Those courts rejected the “trip specific” approach, which focuses on the character of the shipment itself as interstate or intrastate, and instead based their decision on the fact that the FMCSA had jurisdiction over all of the interstate carrier’s trips, regardless of destination. Some courts have also held that based on public policy considerations, the MSC-90 should apply because the endorsement was designed to protect members of the general public injured by interstate carriers, regardless of the carrier’s destination on a particular trip. The public policy underlying the MCS-90 is to provide a safety net to members of the public injured as a result of negligent operation of tractor trailers used in interstate commerce. Its primary purpose is to assure injured members of the public are able to obtain judgments from negligent authorized interstate carriers. See Reliance National Insurance Co. v. Royal Indemnity Co., 2001 U.S. Dist. LEXIS 12901 (S.D.N.Y.) and Heron v. Transportation Casualty Insurance Co., 274 Va. 534 (Va. 2007).

Is Evidence of Payments by Medical Insurer Admissible in Tennessee on the issue of Reasonableness – Court of Appeals Muddies the Waters

By | Uncategorized | No Comments

In Dedmon v. Steelman, 2016 Tenn. App. LEXIS 386 (6/2/16), the Court of Appeals rejected any assertion that the Tennessee Supreme Court meant for its holding in West v. Shelby County Healthcare Corporation, standing alone, to control all determinations of reasonableness with regard to medical expenses under Tennessee law, while allowing the defendant to offer proof contradicting the reasonableness of the medical expenses submitted by the plaintiff. The defendant had moved to exclude the plaintiff’s evidence that her incurred medical expenses, totaling $52,482.87, were reasonable and necessary.  This was done in the usual fashion with expert testimony from a treating physician. The trial court granted the motion.

The Court of Appeals reversed, holding that a plaintiff may present the testimony of a physician who testifies that the amount of medical expenses billed or charged to a plaintiff was reasonable, and as the expert’s testimony was admissible, its exclusion by the trial court under West was improper. However, the defendants will be permitted to offer proof contradicting the reasonableness of the medical expenses submitted by the plaintiff.  Exactly how to do that without violating the collateral source rule, however, was not made clear by the Court:

“ . . . existing law in this state also makes clear that Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses. See Borner, 284 S.W.3d at 218. However, in doing so, they must not run afoul of the collateral source rule. See, e.g., Martinez v. Milburn Enters., Inc., 290 Kan. 572, 233 P.3d 205, 222-223 (Kan. 2010) (“… the collateral source rule bars admission of evidence stating that the expenses were paid by a collateral source. However, the rule does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.”); see also Stanley v. Walker, 906 N.E.2d 852, 858 (Ind. 2009). If the Tennessee Supreme Court is inclined to extend the reasoning of West to personal injury litigation as Defendants suggest, it is, of course, certainly free to do so, but this Court must apply the law as it currently stands.”

With its final comment, the Western Section practically begs the Supreme Court to review its decision:

“We sincerely hope that the Tennessee Supreme Court will review this case and consider the excellent arguments presented by both the parties, the amici curiae on appeal, and the concurring opinion.”

Hu Hamilton named to serve on APITLA National Advisory Board

By | Uncategorized | No Comments

The Association of Plaintiff Interstate Trucking Lawyers of America has designated Hubert Hamilton to serve on its National Advisory Board.  Advisory Board members provide guidance and counsel in the methods of learning, litigation and legislation to help achieve APITLA’s mission of “Putting the Brakes on Unsafe Trucking Companies,” by working to eliminate unsafe and illegal conduct by truck drivers and trucking companies.  Hamilton is one of only three attorneys from Tennessee serving on the National Advisory Board.

Hubert E. Hamilton

Increasing Carnage On Our Highways from Truck Wrecks

By | Trucking, Uncategorized | No Comments

The Huffington Post reports, in an article released April 16, 2016, on:

The inside story of how the trucking industry and politicians have conspired to make our highways less safe.

What follows is an excerpt from that extensive article about truck-related deaths, which hit an all-time low during the economic doldrums of 2009, when 2,983 truck accidents killed 3,380 people, that they have increased as the economy has recovered, and the carnage has been on the rise:

“In 2013, the most recent year for which finalized statistics are available, 3,541 wrecks killed 3,964 people — an increase of 17.3 percent in just four years. In 2014, the number of deaths resulting from truck accidents was down slightly, but the total number of crashes and injuries increased.

At the same time, Congress has been caving, very quietly, to lobbying from trucking interests that want to roll back, block or modify at least a half-dozen important safety regulations. Significant parts of the hauling industry have long opposed many of the federal rules governing working hours, rest periods, size and weight limits, and safety standards. When the Great Recession began in 2008, profit margins for shippers shrank and bankruptcies rose, prompting a desperate industry to step up its lobbying effort.

Perhaps, the trucking companies’ lobbyists suggested to Congress, trucks could haul loads heavier than the federal 80,000-pound limit, which would allow them to deliver more goods with each truck. Maybe they could have longer double trailers, increasing the limit from 28 feet for each unit to 33 feet — turning each rig into an 80-foot-long behemoth, as long as an eight-story building is tall. Or they could let truck drivers be more flexible with their rest breaks, which would allow them to work up to 82 hours a week instead of the already-exhausting limit of 70. Maybe trucking firms could reduce labor costs by hiring lower-paid drivers, younger than 21 — as young as 18. Maybe they could stop federal regulators from raising insurance requirements that were set during the Reagan administration. Maybe the federal motor carrier safety ratings for unsafe trucking companies could be kept secret.

Indeed, the trucking industry is trying to do all of those things. If they are successful, these changes would amount to the most significant overhaul of highway safety rules in decades. But most people don’t know such sweeping revisions are even being considered.”

Safety regulations and requirements should be strengthened, not watered down, but that is exactly what trucking industry and their lobbists are trying to do.  We don’t need larger and heavier trucks on our roads.  And, truck drivers are falling asleep at the wheel now; they need to take more breaks and time off.  With the potential for death and destruction these behemoths present, one would think that the federal government would require them to carry at least $5,000,000 in liability coverage.  But no, when FMCSA begin consideration for increasing the current minimum of $750,000, another measure the industry pushed last year short-circuited federal regulators’ efforts to even evaluate raising insurance requirements for trucking companies. The current $750,000 minimum has been unchanged since the 1980’s.  But it is obvious to all that $750,000 doesn’t even begin to cover the costs of a serious semi wreck.  All the large trucking companies carry multiple layers of coverage, often far in excess of $5,000,000.  It is the small operators that present the clear and present danger, carrying only the minimum limits required by FMCSA.  And those small operators are often running poorly maintained equipment with marginally qualified drivers.

How can the public protect itself?  Speak up and get Congress to pay attention.  The relationship between the industry and Congress, including members of both parties, is far to cozy.  More on this topic to come, including truck drivers who fall asleep at the wheel.

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