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

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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 https://legiscan.com/TN/text/HB0164/2019

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

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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.

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

By | Uncategorized | No Comments

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.

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