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TENNESSEE’S INDEPENDENT JUDICIARY UNDER VICIOUS AND UNWARRANTED ATTACK

Watching TV this election season you might think that the justices of the Tennessee Supreme Court had issued a number of ruling upholding “Obamacare”.  How many such ruling have they issued?  None.  Are they likely to every rule on “Obamacare”?  No.  The Affordable Care Act (aka “Obamacare”) is a federal law. Questions concerning its implementation and constitutionality fall within the purview of the federal courts, not our state courts.  The Tennessee Supreme Court has nothing to do with Obamacare.

So why are Justices Connie Clark, Sharon Lee and Gary Wade being accused of supporting “Obamacare” and of being “Liberal on Crime”?  Powerful business interests and wealthy businessmen, most of whom don’t even live in Tennessee, want to get rid of our current independent justices and replace them with business friendly judges who will be appointed by a business friendly governor.

If that happens, who will look out for the interests of ordinary people?

Justices Clark, Lee and Wade are all well qualified and highly respected.  They have each been recommended for retention by the independent Judicial Performance Evaluation Commission.

Click here to see a brochure from the Tennessee Bar Association on the Tennessee Plan for appointment and retention of appellate judges.

On August 7th, Tennessee voters can vote Yes or No to retain Justices Clark, Lee and Wade.  Lawyers from across the State, Republicans, Democrats and independents, have joined together to fight the vicious unwarranted attack on these justices.  Our current Supreme Court justices represent the very best of our judicial system and we believe each of them deserves a Yes vote for retention.

The TV ads portraying them as liberals who support Obamacare are false.

Do we want judges and justices who are non-partisan, who follow the law and who do not let money or politics influence their decisions?  Of course we do.  We want judges and justices who will apply and interpret the law fairly both to rich and poor alike.  We want judges who are smart, capable and well respected.   Connie Clark, Sharon Lee and Gary Wade are all smart, capable and very well respected, and while we might not always agree with their decisions, we know they are fair minded judges who always try to do the right thing.

Andrew Jackson once said: “A good Judiciary lends much to the dignity of a state and the happiness of the people . . . “

Judge for yourself:

Click here to see the ad falsely accusing Justices Clark, Lee and Wade of running a liberal court and supporting “Obamacare”

Click here to see an ad supporting the retention of Justices Clark, Lee and Wade.

 

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Tennessee trial judges must explain why they are granting or denying a motion for summary judgment.

In a unanimous opinion today (7/15/14), Mary C. Smith v. UHS of Lakeside, Inc. the Tennessee Supreme Court has determined that the Tennessee Rules of Civil Procedure require trial judges to explain why they are granting or denying a motion for summary judgment before they ask the lawyer for the winning party to prepare a proposed order.

Motions for summary judgment are requests by one or more parties to a lawsuit for the court to rule on the merits of an issue before a case goes to trial. The court can determine prior to the start of a trial that there is no genuine issue of material fact and all or a portion of the case will come to an end.

In the specific case the Court decided today, Mary C. Smith sued UHS of Lakeside, Inc. in the Shelby County Circuit Court following the death of her husband who had been treated at the Lakeside Triage Center in September 2004. UHS filed motions for summary judgment asking the trial court to dismiss Ms. Smith’s lawsuit. During hearings in March 2010 and September 2011, the trial judge orally granted UHS’s motions but did not explain the basis for her decisions. Instead, the trial judge asked UHS’s lawyer to draft orders that provided the legal basis for her decisions. The trial judge signed the orders prepared by UHS’s lawyer despite Ms. Smith’s objections.

Ms. Smith appealed, and the Court of Appeals set aside the summary judgment orders. The Court of Appeals decided the trial court failed to comply with Rule 56 of the Tennessee Rules of Civil Procedure, which requires trial courts to “state the legal grounds” when deciding a motion for summary judgment.

The Supreme Court agreed that the trial court failed to comply with Rule 56. The Court emphasized that deciding a motion for summary judgment is a high judicial function. The requirement that a trial court state its grounds promotes respect for the judicial system by ensuring that a summary judgment decision is the product of the trial court’s own independent analysis.

The Court held that the trial court erred by granting UHS’s motions for summary judgment without providing legal grounds and by asking UHS’s lawyers to supply the orders that articulated the reasons for the court’s decision. The Court concluded the trial court must, “upon granting or denying a motion for summary judgment … state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”

In this case, the Court determined the contested orders were not the product of the trial court’s independent judgment, therefore the case was returned to the trial court for further proceedings.

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Drastic Cuts in Tennessee Workers’ Compensation Benefits Coming For Accidents After July 1st:

Governor Haslam’s Workers’ Compensation Reform Bill goes into full effect in Tennessee on July 1st and applies to any worker injured after June 30th.

  • Insurance companies will have even more opportunity to deny coverage based on pre-existing conditions.  The law now provides that all injuries must arise “primarily out of and in the course and scope of employment,” so the injured worker must prove that the employment “contributed more than 50% in causing the injury, considering all causes.”
  • Permanent partial disability (PPD) benefits, which are supposed to provide compensation for future earnings loss due to an injury, will be dramatically scaled back.  PPD awards will be based solely on the impairment rating, multiplied by 450 weeks:
    • An injured worker with a 5% impairment rating will receive only 22.5 weeks of benefits for PPD.
    • If he or she does not return to work, or returns to work earning less, only marginal increases of 1.35 to 1.45 times the impairment rating are available.  For example, a worker with a 5% rating who can’t return to work might be entitled to 30 to 32.6 weeks of benefits.

Thankfully, there is an “escape” clause in the new law that will allow for much larger PPD awards up to 450 weeks for a few workers, if at least three of four factors are proven:

  • Limited education
  • 55 or older
  • No transferable job skills
  • No reasonable employment opportunities locally.

For most workers, however, benefits for permanent disability will be very limited, no matter how devastating the effect of a serious injury is on his or her ability to earn a living in the future.

Better workers compensation benefits may be available through Georgia:

Georgia law may provide better benefits to an injured worker than Tennessee, and in some situations a claim can be filed in either state.  If the accident occurred in Georgia there may be jurisdiction in Georgia.  Even if the accident occurred outside Georgia, if the worker was hired in Georgia and the employer has a place of business there or if the worker lives in Georgia, the claim can be brought in Georgia.

If there is any possibility of dual jurisdiction in Georgia, call us.

Workers injured on the job should not blindly accept an insurance company’s decision to handle a workers compensation case as a Tennessee case.  If there might be jurisdiction in Georgia, call us immediately!

Here are just two examples of dual jurisdiction in Tennessee and Georgia:

  • A Tennessee company that routinely sends service technicians into Georgia to serve or repair equipment, such as heat and air units, industrial machinery or plumbing may be subject to Georgia workers compensation law if the accident occurs in Georgia.
  • A Tennessee trucking company that hires workers through its terminal in Georgia will be subject to Georgia workers compensation laws regardless of where the accident occurs.
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Increase in Minimum Liability Insurance for Commercial Motor Vehicles Under Serious Consideration by FMCSA

According to the Federal Motor Carrier Safety Administration (FMCSA) the agency is exploring the potential to  raise the $750,000 insurance minimum requirement for commercial motor vehicles. In a report to Congress in April 2014, the FMCSA says current minimums are inadequate to meet the costs of some crashes because “inflation has greatly increased medical claims costs and related expenses.” The FMCSA has formed a team to further evaluate required levels of financial responsibility.

The report was mandated by MAP-21 legislation and includes findings from a study that weighed the benefits of increasing insurance minimums, including improved compensation for crash victims and reductions in commercial vehicle crashes, against costs imposed on commercial motor vehicle operators and the insurance industry.

The $750,000 minimum has been in place since 1985, and the agency says if it had kept up with the core consumer price index, the minimum would be $1.62 million, and if it kept up with the medical consumer price index, which measures the annual increase in medical costs, the number would be $3.18 million in liability insurance.

As expected, the Owner-Operator Independent Drivers Association (OOIDA) responded to the FMCSA’s report saying that any increase in insurance rates would devastate small businesses that comprise over 90 percent of the trucking industry.

“Even though the agency’s report confirms that fewer than one percent of all truck-involved accidents result in injuries or property damage that exceed current insurance requirements, it seems pretty clear they plan to raise those requirements anyway,” says Todd Spencer, executive vice president. He also points out that “the amount of insurance carried by motor carriers has never been shown to have a correlation with safety.”

The American Trucking Associations (ATA) echoed the OOIDA in a statement about the report that said “ATA has yet to see any evidence that increased insurance minimums will lead to improved highway safety, and until we can review the underlying study FMCSA’s report relies on, that continues to be the case.”

Despite industry reaction, the FMCSA intends to make the matter a priority and has formed a rulemaking team “to further evaluate the appropriate level of financial responsibility for the motor carrier industry.”

The Hamilton Firm urges a substantial increase in the minimum limits given the devastating effects of a collision between a passenger car or small truck and a tractor trailer or other large commercial vehicle.  The likely result of such collisions is catastrophic injury or death.  The current minimum limit of $750,000 is grossly inadequate.

A copy of the FMCSA’s report can be viewed at:

http://www.fmcsa.dot.gov/mission/policy/report-congress-examining-appropriateness-current-financial-responsibility-and

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Court of Appeals Reverses Trial Court’s Grant of Summary Judgment in Hotel Grab Bar Case

In Bright v. Sandstone Hospitality LLC, A13A1811 (3/26/14), the Georgia Court of Appeals reversed the grant of summary judgment to the owner of a Wingate branded hotel in Kennesaw, GA that had denied responsibility for a defective grab bar in a shower/bathtub.  In August 2008, Mr. Bright, while traveling on business, used the grab bar to pull himself up out of the tub in his room, and when he did so, the bar pulled away from the wall and he fell back into the tub, injuring his low back. Sandstone, which operated the hotel under a franchise agreement with Wingate International Inns, Inc., denied any knowledge of the defective grab bar, claiming it had been there since they bought the hotel.   The trial court granted summary judgment to both defendants, Wingate and Sandstone, but the Court of Appeals held that there was “evidence from which a jury could find that Sandstone lacked reasonable inspection procedures and thus had at least constructive knowledge of the defect. . . . [and] because questions of fact remain for jury determination, the trial court erred in granting summary judgment to Sandstone.”

The Court concluded:

“Under OCGA § 51-3-1, a premises owner has a duty to exercise ordinary care
to keep the premises safe for invitees. In cases of defective construction, the owner
is presumed to have knowledge of the danger.7 Freyer v. Silver, 234 Ga. App. 243,
245 (2) (507 SE2d 7) (1998).”

While the owner can be held liable, the franchisor, Wingate, escaped responsibility, although the hotel prominently bore the Wingate name and despite Mr. Bright’s testimony that he chose the hotel based on Wingate’s reputation as a safe, secure and clean place to stay while traveling.

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Georgia Court of Appeals Rejects Exclusion of Expert’s Testimony

In a significant case interpreting the 2005 tort reform laws, the Georgia Court of Appeals rejected the trial court’s limitation on the plaintiff’s expert testimony.  In Lavelle v. Laboratory Corp. of America, No. A13A1722, 2014 Ga. App. LEXIS 260 (3/28/14), a husband sued a physician, his medical practice, and a lab, seeking damages for negligence in failing to diagnose and treat his deceased wife’s cervical cancer in a timely fashion. The trial court granted the lab’s motion to exclude the husband’s expert’s testimony and granted partial summary judgment for the lab as to breach of the standard of care, and the husband appealed.  The Court of Appeals vacated the grant of the motion to exclude the expert testimony and the grant of partial summary judgment and remanded the case to the trial court for further proceedings.
The husband’s expert, a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides, had testified that the lab breached the applicable standard of care based on her focused reviews of the wife’s Papanicolaou (Pap) smear test slides, which showed abnormal cells. She also testified that two blinded reviews of the slides confirmed her opinion. The trial court excluded evidence of the two blinded reviews on the ground that they did not satisfy the reliability requirements of former O.C.G.A. § 24-9-67.1 and Daubert. The court held that the trial court erred in failing to consider the expert’s focused reviews of the slides apparently finding that the only acceptable methodology for reaching an opinion about whether a cytotechnologist breached the applicable standard of care was the blinded review methodology.  The Court of Appeals concluded that only methodology the trial court found acceptable was “promoted and promulgated” the cytotechs own professional association, and that was an abuse of discretion:

“In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion . . . the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case.”

The Court held that the trial court should have conducted a proper Daubert analysis of the methodology that the expert employed, the focused reviews.  This case could have broad application beyond medical malpractice cases.

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Patrick Cruise named Top 10 under 40

We are proud to announce that Patrick A. Cruise was selected as one of the top 10 lawyers in Tennessee under 40 by The National Academy of Personal Injury Attorneys.

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Georgia Court of Appeals Holds That Jury Should Have Been Permitted to Apportion Fault to Adjoining Property Owner in Negligent Security Case.

In Double View Ventures v. Polite, 2104 Ga. App. LEXIS 234 (3/26/14) the defendants, the owner of an apartment complex and a property management company, appealed a jury verdict in favor of plaintiff, a resident of the apartment complex. The resident filed a premises liability action against defendants following an attack by unknown assailants on the property of the apartment complex. The attack occurred while the resident was walking along a dirt path leading to a gas station located adjacent to the apartment complex. Bleach was thrown in the resident’s face and he was shot, which caused him severe permanent physical injuries.

On appeal, defendants contended that the trial court erred in refusing to allow the jury to consider the fault of the gas station and to apportion damages to it as well as among the defendants, pursuant to O.C.G.A. § 51-12-33. The Court of Appeals agreed and held that because there was some evidence supporting the defendants’ claims that the gas station may have been liable for the resident’s injuries and could be apportioned fault, the trial court erred in refusing to allow the jury to consider whether the gas station was partially at fault. The court noted that defendants presented evidence of numerous armed robberies and assaults on the gas station property, including inside the convenience store, as well as evidence that the area surrounding the gas station and the apartment complex was known as a high-crime area.  According to the Court, the fence near where the plaintiff was attacked was on property owned by the gas station, not by the apartment complex:

“Polite testified that he was attacked after he walked through the fence and took a few steps, and the evidence shows that the wooden fence is on Chevron’s property about 12 feet away from the Defendants’ property line. Given this evidence, along with the fact that it is unknown whether the attackers came from the Chevron station or the apartment complex, a jury question exists as to whether the Chevron station should have anticipated another criminal attack near the wooden fence and whether Chevron took reasonable precautions to protect Polite from the use of its premises.”

The court reversed the judgment, although the defendants never identified the specific entity in control of the Chevron station next door where the fence was located, and had in fact identified three other specific entities alleged to have been at fault in their pretrial notices of nonparty fault pursuant to O.C.G.A. § 51-12-33(d)(1).  The defendants pulled a classic bait and switch on the plaintiff.  They identified three specific entities in three separate notices, but presented no evidence that any one of them was actually responsible for the property where the fence was located.  According to plaintiff’s counsel, Darren Summerville, the trial court excluded the three specific entities named in the notices of nonparty fault from the verdict form, but the defendants argued that the jury should have been permitted to apportion fault to a vague, non-specific entity never named in the pretrial notices, such as “the convenience store” or “Chevron.”  The trial court refused, and got reversed by the Court of Appeals.

This is horrible decision, and the case is likely headed for the Georgia Supreme Court.  There was a strong dissent by Judge Anne Barnes, who correctly saw the issue as a failure of the defendants to introduce any evidence that would provide a rational basis for a jury to apportion fault against a nonparty.

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Tennessee Supreme Court confirms that a plaintiff can add a defendant under T.C.A. § 20-1-119 even when the plaintiff was aware of the added defendant’s fault before the statute of limitations expired.

In a unanimous opinion, Michael S. Becker et al v. Ford Motor Co., M2013-02546-SC-R23-CV, the Tennessee Supreme Court has held that T.C.A. § 20-1-119 allows a plaintiff to add a defendant whose involvement was raised by the original defendant, even when the plaintiff was aware of the new defendant before the statute of limitations expired.

The case involves Michael Becker, who was riding in a truck driven by his son when the truck hit a light pole. Mr. Becker was injured and filed a lawsuit in Hamilton County against Ford Motor Company, the manufacturer of the truck. Ford removed the case to federal court. Then, in its answer to Mr. Becker’s complaint, Ford named the son as the person who caused the accident.

Mr. Becker asked the federal court for permission to amend his complaint to add his son as an additional defendant. By this time, the legal deadline for filing the suit had passed. However, a state law allows plaintiffs to file suit against new defendants who are named by the original defendant, despite the expiration of the statute of limitations.

The federal court was unsure whether Mr. Becker could add his son as a defendant because Mr. Becker was previously aware of his son’s involvement in the accident. Accordingly, the federal court turned to the Tennessee Supreme Court, asking whether the state law only applied to defendants who were unknown to the plaintiff prior to the expiration of the statute of limitations.

Interpreting T.C.A. § 20-1-119, the Supreme Court held that the law’s plain language does not require that the new defendant be unknown to the plaintiff prior to the expiration of the statute of limitations. Mr. Becker was therefore permitted to file suit against the son.  While suing one’s son is unusual, this case is important as a plaintiff may choose, for many reasons, not to name another person who might be at fault as a defendant in his or her original lawsuit.

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Annual Report of the Judiciary Shows Decline in Jury Awards in Tennessee Damage/Tort Cases

The Annual Report of the Judiciary recently released data concerning the disposition of damage/tort cases in Tennessee for 2013.  Of the more than 10,000 damage/tort cases concluded in 2013, only 4% went to trial, with 2% tried by a jury.  The average monetary award decreased significantly last year, representing the second lowest average in over 20 years.  Of the 438 cases that were tried last year, 151 of those cases resulted in no recovery for the plaintiff.

These numbers illustrate the importance of having experienced, aggressive counsel in personal injury cases.  It is important to have the right attorney, one has the knowledge, expertise and resources to take the case to trial, if necessary, rather than having an attorney who is just is looking for a quick and easy settlement.  Plucking low hanging fruit is easy – that is what the attorneys who advertise on TV do. On the other hand, preparing a serious injury case for trial is a serious undertaking, and it requires the highest levels of commitment, creativity and competence on the part of the trial lawyer.  At The Hamilton Firm we strive to provide just such representation to our clients and their families.  We prepare for trial, not just for settlement.

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