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.
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).
- 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.
- Strict liability can be imposed on manufacturers and sellers under T.C.A. § 29-28-105.
- 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.
- 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)
- 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.
- 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)
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.
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.
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.
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.
The Georgia State Supreme Court has unanimously upheld a $40 million award to the family of a four-year-old boy killed in 2012 when the 1999 Jeep Grand Cherokee in which he was riding was rear-ended and burst into flames, Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (3/15/18).
In 2015, the jury returned a verdict of nearly $150 million in favor of the parents, but the trial court suggested a remittitur to $40 million, which was accepted by the plaintiffs. The Jeep’s fuel tank had been placed near the back of the vehicle, which plaintiffs said made it vulnerable to rear-end collisions. Four-year-old Remington Walden was a rear seat passenger who was trapped in the Jeep and burned to death.
The Supreme Court said that “evidence showed that Chrysler had long known that mounting a gas tank behind the rear axle was dangerous. Evidence also showed that Chrysler’s placement of the gas tank behind the rear axle was contrary to industry trends, which favored placing tanks in front of the rear axle.”
Fiat Chrysler lawyers contended that the fire did not cause boy’s death, but blamed the driver of the pick-up truck that rear ended the Jeep. On appeal, the defendant contended it was prejudicial to allow testimony about Chief Executive Sergio Marchionne’s compensation, which totaled more than $68 million, into evidence at trial. They also denied there was a safety issue and claimed the vehicles were no more dangerous than comparable SUVs built at the time. However, the National Highway Traffic Safety Administration (NHTSA) has linked more than 50 deaths to the Jeep fuel-tank issue.
Fiat Chrysler had to recall 1.56 million 2002-07 Jeep Liberty and 1993-2004 Jeep Grand Cherokee SUVs in June 2013 to address fire risks and they agreed to install trailer hitches to protect the gas tanks. The recall and a “customer satisfaction campaign” that covered the Jeep in the fatal Georgia crash occurred after CEO Marchionne held private talks with senior government officials in 2013.
The Supreme Court concluded “not that compensation evidence is always admissible to show the bias of an employee witness, or that it is never admissible, but that such evidence is subject to the Rule 403 analysis weighing the evidence’s unfair prejudice against its probative value.” And, “because Chrysler did not raise a Rule 403 objection to the compensation evidence at issue” the Court concluded “that under the particular circumstances of this case—where the jury’s evaluation of the bias and credibility of Chrysler’s CEO were central to the allegations in the case because the CEO was alleged to have specifically interjected himself in a federal safety investigation to the detriment of the plaintiffs—we cannot say that the prejudicial effect of the evidence so far outweighed its probative value that its admission was clear and obvious reversible error.”
Therefore, although the Supreme Court disagreed with the rationale of the Court of Appeals, it affirmed its judgment, and upheld the $40 million award.
Now that former Durham Transportation school bus driver Johnthony Walker has been found guilty of six counts of criminally negligent homicide by a Hamilton County jury, the question arises as to whether the felony convictions lift Tennessee’s caps on noneconomic damages for victims of his negligence. Walker was driving 37 children from Woodmere Elementary School when the wreck occurred on a winding Chattanooga road on November 21, 2016. Six children were killed.
Walker was also was convicted of 11 counts of reckless aggravated assault and seven counts of assault, and found guilty of reckless endangerment, reckless driving and using his phone.
Tennessee law limits noneconomic damages to a maximum of $750,000 in most cases, under a law passed by the Republican dominated legislature and signed by Governor Haslam in 2011. Economic damages not capped, however. Economic damages include loss of earnings. So for the children killed in the school bus crash, damage awards would appeared to be limited to $750,000 plus a projection of the child’s future earnings potential, reduced to present cash value. However, there is an exception, where the defendant’s negligent act or omission is considered to be a criminal act that results in the conviction of a felony.
TCA § 29-39-102(h) provides that:
“The limitation on the amount of noneconomic damages imposed by subdivision (a)(2) and subsections (b)-(e) shall not apply to personal injury and wrongful death actions:
(4) If the defendant’s act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or under federal law, and that act or omission caused the damages or injuries.”
So, at least as to Walker, the $750,000 cap no longer applies. But what about his employer and other defendants who have been sued by the families of the victims? Do the caps still apply?
TCA § 29-39-102(j) states that:
“The liability of a defendant for noneconomic damages whose liability is alleged to be vicarious shall be determined separately from that of any alleged agent, employee or representative.”
Tennessee’s appellate courts have yet to rule on whether the exemptions from the caps apply to defendants other than the person convicted of the felony. However, it would seem, that at a minimum, the company that employed the felon should be held fully responsible for his actions and misdeeds, as they selected and hired him and were responsible for training and supervising him. The meaning of subsection (j) has not yet been interpreted by the Tennessee Supreme Court, but it does not appear to explicitly excuse an employer from full liability for all noneconomic damages caused by its employee found guilty of a felony.
Ahlborn has been brought back to life by Congress. The Bipartisan Budget Act (BBA) of 2018, just passed by Congress and signed into law by the President on February 9th, permanently repeals a provision from 2013 that would have allowed states to recover medical expense subrogation claims from any portion of a Medicaid beneficiary’s legal settlement. In other words, the law contains an outright repeal of language from an earlier budget bill that had overturned a Supreme Court decision in Arkansas Department of Health and Human Services et al. v. Ahlborn, 547 U.S. 268 (2006).
In Ahlborn, the Supreme Court held that Medicaid could only seek reimbursement from Medicaid enrollees injured by a third party from the portion of a settlement attributable to medical costs. The Ahlborn decision was universally lauded as promoting fair and proportionate settlements for Medicaid recipients. But, in 2013, the BBA included a provision overturning Ahlborn. This granted Medicaid a right of first recovery for full reimbursement of covered medical costs before plaintiffs could receive any recovery for lost wages, non-economic damages, or any other type of recovery. That was not fair, and sometimes gave Medicaid recipients little incentive to even seek recovery of damages from a third party.
Implementation of the 2013 language was delayed for several years, thanks primarily to lobbying by the American Association for Justice. The second and final delay expired on October 1, 2017, effectively overturning Ahlborn. However, repeal of the overturn was finally secured as part of the budget deal recently reached by the House and Senate. From this point forward, states cannot take more than their fair share of a Medicaid recipient’s legal settlement in a tort case, but they can be reimbursed from the portion of any settlement attributable to medical costs.
The 2018 BBA also extends third party liability requirements to CHIP benefits (Children’s Health Insurance Program) for the first time, however. So as we see states implementing the new provisions of the law, reimbursement for CHIP benefits may also have to be considered when settling a case involving a client eligible for CHIP.