In 3-2 Decision, Tennessee Supreme Court Upholds Caps on Noneconomic Damages

By | Tort Reform | No Comments

In an opinion released February 26, 2020, JODI MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC, No. M2019-00511-SC-R23-CV, the Tennessee Supreme Court, by a narrow 3-2 margin, has upheld the caps on noneconomic damages enacted by the legislature in its 2011 tort reform legislation.

For the majority, the court summarized the case as follows:

“We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102: “(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?” Upon review, we answer each of the District Court’s questions in the negative.”

Chief Justice Bivens wrote the opinion, joined by Justices Kirby and Page. Justices Clark and Lee dissented.

T.C.A. § 29-39-102(a)(2) provides that damage awards may include [c]ompensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted. The cap is increased to $1,000,000 for certain “catastrophic loss or injury.” T.C.A. §§ 29-39-102(c)-(d). The statute also exempts certain kinds of cases from the cap, such as those in which the defendant had a specific intent to inflict serious physical injury, the defendant was intoxicated, or the defendant committed a felony in causing the injury. T.C.A. § 29-39-102(h), and those where “the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue,” T.C.A. § 29-39-102(h)(2)

So, these unfair and arbitrary limits or ceilings on recovery for pain and suffering and other noneconomic damages in personal injury and wrongful death cases will remain a part of Tennessee law, even though many other states have struck down such caps as unconstitutional.

Just Published: Should a Truck Wreck Case Be Handled Like a Car Wreck?

By | Trucking, Uncategorized | No Comments

” . . . it costs a lot to win, and even more to lose” (Jerry Garcia)

Cases involving a tractor trailer (18-wheeler, semi, big rig) or other commercial motor vehicle(s) should not be handled like the typical car wreck case!

In an article just published in the The Tennessee Trial Lawyer, the journal of the Tennessee Trial Lawyers Association (Click here and scroll to pp. 10-13), Patrick Cruise and Hubert Hamilton point out just some of the considerations that make truck wreck cases very different from the typical car wreck case:

  • Commercial drivers are required to have a commercial driver’s license (CDL) and are supposed to be screened, qualified and professionally trained, 49 CFR 383 and 391. They must also be medically certified as fit to drive.
  • Different standards apply to commercial drivers. Most important are the Federal Motor Carrier Safety Regulations (FMCSR), which apply to “all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce” (49 CFR 3T).
  • Trucking cases are aggressively investigated and defended by trucking companies, their insurers and their lawyers. Trucking companies often have rapid response teams at the scene of a bad wreck while the injury victims are being evaluated in the emergency room. While your client is still in the hospital recovering from his or her injuries, the trucking company’s team (experts, lawyers, and investigators) are likely interviewing the parties and witnesses, and securing evidence.
  • 49 CFR 387.9 requires a minimum of $750,000 liability coverage for any motor carrier operating in interstate commerce carrying non-hazardous cargo for hire. In addition, there may be complicated layers of excess coverage over and above the required minimum.
  • A commercial truck driver is a professional and should be held to a higher standard of care than the driver of an ordinary passenger vehicle. See Dakter v. Cavallino, 866 N.W.2d 656 (Wis. 2015). For instance, 49 CFR 392.14 requires a commercial driver to exercise extreme caution and to reduce speed when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction.  And, 49 CFR 392.3 prohibits the operation of a commercial motor vehicle while the driver’s ability or alertness is impaired, or so likely to become impaired, due to fatigue, illness, or any other cause, so as to make it unsafe for him/her to operate the tractor trailer.
  • Much more is at stake than in the typical car wreck case, as a wreck involving a tractor trailer often results in fatalities or severe injuries. And, several vehicles may be involved with multiple plaintiffs.

In the typical car wreck case, lawyers are usually focused on the actions of each driver in the few seconds leading up to the crash. Did the defendant stop at the stop sign? Who ran the red light? Was the defendant speeding? Was the defendant following too closely? Was the plaintiff speeding?  Was the plaintiff or defendant distracted, on the phone or texting? The actions or omissions of each driver just before the crash are examined and the jury is asked to determine who was at fault based on those few seconds.

In a truck wreck case, however, the focus should be on the trucking company, and not necessarily on the truck driver. What the driver could have done to prevent the wreck is certainly important, but what the trucking company could and should have done to prevent the crash may be far more important.  The trucking company, which is supposed to train and supervise its drivers, plan safe routes, and actively work to prevent wrecks, will have had numerous opportunities to understand, plan, train and prevent most crashes. Focusing on system failure by the trucking company is often the key to success in truck wreck cases.

Lawyers who try to handle a serious injury or death case involving a tractor trailer or other commercial motor vehicle just like a typical car wreck case are not likely to obtain a full and fair recovery the client. When our firm accepts representation in a truck wreck case, we start preparing for trial immediately. There are no short cuts, and there is no substitute for meticulous, thorough preparation.

Hubert Hamilton Ranked as One of Tennessee’s Top 100 Lawyers

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Mid-South Super Lawyers has ranked Hubert E. Hamilton as one of its Top 100 lawyers in Tennessee for 2019.  Mr. Hamilton, who is licensed in Georgia and North Carolina, as well as Tennessee, earned a place on this prestigious list based on Super Lawyers’ extensive nomination, research and blue ribbon review process.  Only five Chattanooga lawyers made the 2019 Top 100 list. Click here to view the complete list.

Patrick Cruise & Hu Hamilton Again Named to Mid-South 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 Top Rated Plaintiffs’ Personal Injury Attorneys in Tennessee for 2019. Both Hubert Hamilton and Patrick Cruise have achieved Super Lawyer status for the current year as Plaintiff’s Personal Injury attorneys.  Mid-South Super Lawyers recognizes attorneys in Alabama, Arkansas, Mississippi and Tennessee who have attained a high degree of peer recognition and professional achievement.

Hubert “Hu” Hamilton also has the unique distinction of also being recognized as a Top Rated Plaintiffs’ Personal Injury Attorney by Georgia Super Lawyers. He is the founding member of the The Hamilton Firm. Mr. Hamilton is a Board Certified Civil Trial Specialist (National Board of Trial Advocacy), licensed in Georgia, North Carolina and Tennessee.

Patrick A. Cruise, who has achieved outstanding success for victims of trucking accidents, is a member of the Academy of Truck Accident Attorneys and the American Association for Justice Trucking Litigation Group. Mr. Cruise is licensed in Tennessee, Georgia and Louisiana.

The Hamilton Firm handles catastrophic injury and death cases, throughout the southeast, focusing on wrecks involving tractor trailers, buses and other commercial vehicles, as well as severe workplace accidents.

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.

Tennessee Supreme Hears Direct Challenge to Caps on Noneconomic Damages

By | Tort Reform | No Comments

On September 4th the Tennessee Supreme court heard oral arguments in Jodi McClay v. Airport Management Services, LLC, as to whether or not Tennessee’s cap on noneconomic damages is constitutional. The case came to the Court by way of three certified questions from the United States District Court for the Middle District of Tennessee.  The jury awarded Ms. McClay $444,500 for future medical expenses and $930,000 for noneconomic damages in a personal injury case.  The trial court entered judgment in accordance with the verdict, and the Defendant, Airport Management Services, moved to apply T.C.A. § 29-39-102, Tennessee’s statutory cap on noneconomic damages.  Pursuant to Tennessee Supreme Court Rule 23, the District Court certified three questions of state law to the Supreme Court:  (1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, Section 6 of the Tennessee Constitution?  (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?  (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discrimination disproportionately against women?

Click here for a link to a TV news report on the case from Knoxville, where the case was argued.

Obviously, the outcome of this case will have direct impact on pending cases throughout the state.  Noneconomic damages are defined by T.C.A. § 29-39-101(2) as, “damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; noneconomic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other nonpecuniary losses of any kind or nature.”

We hope the Tennessee Supreme Court will follow the recent trend of other state high courts which have overturned such arbitrary caps on noneconomic damages in personal injury cases. For instance see Beason v. I.E. Miller Services, Inc., 2019 OK 28, where the Oklahoma Supreme Court found that the state’s $350,000 cap on noneconomic damages was unconstitutional in a case where the jury had awarded $5,000,000 in noneconomic damages.  In that case the plaintiff had been horribly injured in an industrial accident, undergoing two amputations on parts of his arm.

Are We Ready for Self Driving Tractor Trailers?

By | Highway Safety | No Comments

Transport Topics reports that Starsky Robotics, an automated truck technology startup, successfully completed its first unmanned test drive of a tractor-trailer on a public highway June 16, 2019 in Orlando, Florida.  The Class 8 Volvo sleeper berth tractor-trailer traveled at 55 mph down a 9.4-mile stretch of Florida’s Turnpike.  Click here for a link to the article.

“Traffic was not stopped while the truck navigated the roads, merged onto the highway, entered a rest area and changed lanes. The operation was closely watched by the company from a remote location to ensure all maneuvers were executed properly. Last month, the company had a successful test at 55 mph on a closed section of Selmon Expressway outside Tampa, Fla., setting a record for the fastest unmanned road-legal vehicle.”

Starsky CEO and co-founder Stefan Seltz-Axmacher has reportedly said that, “ . . . humans are better at navigating many of the nuances of driving than even the most advanced computer systems, which is why we use remote drivers to help our trucks at their most contextually complex junctures.”

So, where is the technology headed, and what will the future look like?  Will tractor-trailers drive themselves?  Or, will they be operated remotely like military drones?  Will truck platooning allow driverless tractor-trailers to follow one another using automated speed and spacing controls along our highways?

In October 2016, now defunct Otto, a company that was focused on retrofitting tractor trailer with radars, cameras and laser sensors to make them capable of driving themselves, had one of their trucks travel 132 miles from Colorado Springs to Fort Collins, Colorado autonomously without any lead vehicle, teleoperation, or any other human intervention. Uber acquired Otto that same year, but has now shut it down to focus on self-driving automobiles.

Robotic, self-driving or remotely operated trucking raises all sorts of thorny legal, regulatory, compliance and insurance issues which the state and federal governments are just beginning to deal with. The State of Tennessee passed new legislation in 2017 that allows self-driving cars in Tennessee, provided a human being is actually in the car, and that the vehicle is covered by $5,000,000 in liability insurance!  See our post, entitled: “Is Tennessee Ready for Self-Driving Cars?

But what about self-driving tractor trailers in Tennessee?

Georgia and Alabama have also passed legislation related to autonomous vehicles.

And, how will self-driving vehicles ultimately affect the insurance industry? A Bloomberg article published earlier this year suggests that autonomous vehicles may one day kill the car insurance industry as we know it!


Significant Changes to Georgia’s Workers Compensation Law Taking Effect July 1, 2019

By | Georgia Workers' Compensation, Uncategorized | No Comments

For injuries occurring on the job on or after July 1, 2019, the maximum compensation rate in Georgia is now $675.00 per week for temporary total disability (TTD), an increase of $100.oo per week from the old rate.  For injuries causing temporary partial disability (TPD) the maximum rate is now $450.00 per week.

The increase in the TTD rate is significant, and long overdue.  Keep in mind, however, that the injured worker only receives 2/3’s of his or her average weekly wage, even for temporary total disability.  So, an employee would have to be earning $1,012.50 or more per week to qualify for the maximum compensation rate.

The other major change in Georgia workers compensation law, also taking effect July 1, 2019, involves payment for certain medical services and equipment beyond the 400 week limit provided by current law for non-catastrophic cases.  For injuries occurring after July 1, 2013, even after 400 weeks, the employer/insurer will have to pay for “maintenance, repair, revision, replacement, or removal of any prosthetic device, provided that the prosthetic device was originally furnished within 400 weeks of the date of injury,” and will have also have to pay for similar services for any spinal cord stimulator or for “durable medical equipment, orthotics, corrective eyeglasses, or hearing aids” that “were originally furnished within 400 weeks of the date of injury.”

Before July 1, 2013, an injured employee was entitled to lifetime medical care, but then the legislature decided to limit coverage in non-catastrophic cases to a maximum of 400 weeks, regardless of the employee’s long term medical needs.  Since 2013, the law had failed to cover prosthetic devices in non-catastrophic cases (amputation of an arm, hand, foot or leg is catastrophic), or to provide for removal or maintenance of an implanted device, such as a spinal cord stimulator.  It also failed to provide payment for devices, such as hearing aids for permanent hearing loss, which are needed for a lifetime, not just 400 weeks.  The amendment to O.C.G.A. § 34-9-200 adding coverage those situations is certainly a welcome change but it does not go nearly far enough.

For the complete text of SB135, effective July 1, 2019, click here.

Tennessee Bans Handheld Use of Cell Phones While Driving

By | Uncategorized | No Comments

Tennessee has joined Georgia and many other states in prohibiting handheld use of cell phones while driving.  T.C.A. § 55-8-199, amended effective July 1, 2019, prohibits drivers from operating a motor vehicle on any road or highway in Tennessee, while physically holding or supporting a cell phone, with any part of the driver’s body, except for using one button to initiate or terminate a call.  Drivers under the age of 18 are prohibited from handling cell phones for any purpose, and no one is permitted to “write, send or read any text-based communication”.  Exceptions are made for persons 18 or older to convert a voice-based communication to a written message or for navigation of the motor vehicle though use of a GPS device.

The full text of the new law can be accessed at

Tennessee Supreme Court Holds That Insurance Contracts are to be Strictly Construed Against the Insurer

By | Insurance | No Comments

Tennessee’s appellate courts have, for years, tended to favor insurance companies over consumers. Finally, the Tennessee Supreme Court has come down firmly on the side of the insured consumers, in a case with broader significance than the narrow issue presented by the facts of the case, Lammert, et al. v. Auto-Owners (Mutual) Insurance Co., No. M2017-02546-SC-R23-CV, (4/15/19).

On a certified question from the U.S. District Court for the Middle District, the Tennessee Supreme Court held that the language in the policies was ambiguous and therefore must be construed in favor of the insured parties.  The homeowners sued Auto-Owners after it tried to reduce payments to them after a loss by depreciating labor costs associated with replacing the damaged components of their homes.  Under the specific facts of these cases, the Supreme Court held that labor may not be depreciated when the insurance company calculates the actual cash value of property using the replacement cost less depreciation method.

Both sides presented “plausible interpretations” of language in the policies, which did not explicitly state that Auto-Owners could depreciate labor expenses when determining the actual cash value of the damaged property.  There is a split of authority on this issue in other states.

The Supreme Court realistically assessed the case from the point of view of the policy holder, the consumer:

“[I]t is reasonable that a homeowner would understand that depreciation would only be applicable to material goods that can age and experience wear and tear. It is also reasonable that a homeowner, knowing that replacement costs include both labor and materials to rebuild a roof, would believe that the insurance company would only apply depreciation to the physical materials, those things that actually deteriorated.”

“In reaching our conclusion, we must keep in mind that “the terms of a contract of insurance are to be construed according to their plain, ordinary, popular sense unless they have acquired a technical sense in commercial usage.” Swindler v. St. Paul Fire & Marine Ins. Co., 444 S.W.2d 147, 148 (Tenn. 1969) (citations omitted). However, the technical sense must be clearly conveyed in the policy itself: In our view, an insured should not have to consult a long line of case law or law review articles and treatises to determine the coverage he or she is purchasing under an insurance policy. Policy language should be given its plain meaning, unless a technical meaning is clearly provided in the insurance policy.”

The Court ruled in favor of the insured homeowners, and concluded that, “[u]nder Tennessee law, ambiguities in insurance contracts are strictly construed against the insurance companies and in favor of the insured.”

Hu Hamilton Named Georgia Super Lawyer for the Eighth Year in a Row

By | Uncategorized | No Comments

Hubert E. “Hu” Hamilton has again been named as a Super Lawyer in Georgia for his work as a Plaintiff’s Personal Injury lawyer, for the 8th year in a row.

Super Lawyers is a rating service by Thomson Reuters of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Their selection process includes independent research, peer nominations and peer evaluations.

Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries.  Thomson Reuters describes the selection process as follows:  “Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.”

Mr. Hamilton has the unique distinction of also being recognized as a Mid-South Super Lawyer for Tennessee.

Click here for a link to Mr. Hamilton’s profile on the Super Lawyers website.

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