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Statistics Show Damages Awarded in Tennessee Personal Injury Cases

Posted on Nov 13 2016 7:07PM by Attorney, Jason A. Lee

The most recent Tennessee judiciary annual report provided many interesting statistics on personal injury cases in Tennessee.  The most recent report covered the 2014 – 2015 fiscal year (July 1, 2014 to June 30, 2015).  Incredibly, there were only 367 total personal injury or death cases that proceeded to trial in the 2014 – 2015 fiscal year.  Of those cases, only 116 of them resulted in damages.  The total monetary award for these 116 cases that resulted in damages was $46,901,449.00.  This constitutes an average award of $404,323.00 per case where damages were awarded.  However, like in most years, these statistics are very deceiving.  Specifically, this statistic was significantly warped by one single award in Shelby County totaling $30,000,000.00.  When this one award is removed, the total damages awarded in personal injury or death trials in Tennessee for the 2014 – 2015 fiscal year totals $16,901,449.00.  This results in average award of $146,969.12. 

 

Interestingly, out of the 116 cases where damages were awarded, only 14 cases resulted in awards of $100,000.00 to $1,000,000.00.  There were only 7 cases that were awarded over $1,000,000.00 in the State of Tennessee for 2014 – 2015.  This is actually a large number of million dollar verdicts when compared to recent prior years.  The remaining 95 cases were all awarded damages somewhere between $1 and $99,999.99.  Obviously, I am sure there are very significant cases that never go to trial and are instead are settled due to apparent risks to both parties.  However these statistics show how few large jury verdicts there are in Tennessee each year.  Further, like I have discussed before, cases simply do not go to trial like they used to do.  This is unfortunate because it inhibits the ability of young litigation attorneys to gain valuable trial experience.  Fewer and fewer attorneys are obtaining real jury trial experience.  This makes is even more important to make sure you hire attorneys with real jury trail experience whether you are on the defense or plaintiff side of the case.  Also, these numbers show, once again, how favorable things are for the defense in Tennessee as Tennessee has become a more and more conservative state from a legal and political perspective. 

 

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TAGS: Tennessee Legal Statistics Comments [0]
  
 

Does Employer’s Admission of Vicarious Liability for Actions of Employee Insulate the Employer from Other Causes of Action?

Posted on Oct 22 2016 1:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently dealt with an issue that has not been previously discussed by Tennessee Appellate courts in Melanie Jones, Individually and on behalf of Matthew H. V. Shavonna Rachelle Windham, et al., No. W2015-00973-COA-R10-CV, 2016 WL 943722 (Tenn. Ct. App. 2016).  The question deal with the situation where an employer and employee are both sued due to the actions of the employee in causing an automobile accident (while working for the employer).  The employer, in the Answer to Complaint, admitted they were vicariously liable for the actions of the employee.  The question, therefore, was whether the plaintiff could still proceed with other claims against the employer including negligent hiring, negligent retention and negligence per se for their own independent negligent actions when they had already admitted vicarious liability for the actual accident.    

 

For some reason, the plaintiff wanted to pursue various individual cause of actions directly against the employer in this case.  Perhaps they thought it would increase the damages because the employer took actions that were inappropriate.  Interestingly, many other state courts have decided this issue and they are basically evenly split on how to handle this situation.  Thus, the Tennessee Court of Appeals went into a detailed assessment of the various positives and negatives of both avenues.  The Court ultimately held that the “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.” Jones at 5. 

 

The Court admitted that this holding does make it necessary for trial courts to potentially guard juries from being prejudice by evidence against the employer after vicarious liability is already admitted.  As a result, the Court discussed in detail the possibility of trying to avoid that prejudice by using jury instructions or ultimately by bifurcating the proceedings under Tennessee Rule of Civil Procedure 42.02.   This rule provides as follows: 

 

The court for convenience or to avoid prejudice may in jury trials order a separate trial of any one or more claims, cross-claims, counterclaims, or third-party claims, or issues on which a jury trial has been waived by all parties. For the same purposes the court may, in nonjury trials, order a separate trial of any one or more claims, cross-claims, counterclaims, third-party claims, or issues.


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TAGS: Torts, Employment Law, Civil Procedure Comments [0]
  
 

2016 Tennessee Statute Provides for Attorney’s Fees to Be Awarded to State When State Employee is Individually Sued Unsuccessfully Under § 1983

Posted on Oct 2 2016 6:07PM by Attorney, Jason A. Lee

Sometimes state government employees are sued on an individual basis for actions that they took as a government employee.  Often these cases are § 1983 claims asserting the state employee acted inappropriately under the “color of law.”  However, this new statute is not limited to claims under § 1983.  In response, the Tennessee legislature felt it was necessary to provide protection to the State when the individual governmental employee is successful in defending such a claim.  As a result, the 2016 Tennessee added a provision in the law that provides that attorney’s fees and costs should be awarded to the state or the state employee when the state employee is not found to be not responsible when they are sued in their individual.  In fact, the employee is not even required to be successful on the merits, but instead, even if the case is voluntarily dismissed greater than 45 days after an Answer is filed making specific assertions, then the employee is still awarded attorney’s fees and costs.   

 

Public Chapter No. 848, which was signed into law on April 19, 2016 by Governor Bill Haslam, has been amended and now provides as follows:

 

(a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.

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TAGS: Tennessee Tort Reform, GTLA, 2016 Tennessee Legislation, Attorney Fees Comments [0]
  
 

Tennessee Supreme Court Once Again Addresses Personal Responsibility/Guaranty for Commercial Leases

Posted on Sep 8 2016 3:45PM by Attorney, Jason A. Lee

The Tennessee Supreme Court has one again addressed a key issue that comes up often in commercial leases.  The question in this case, decided September 2, 2016, was whether an individual who signed the lease (in a peculiar way) was personally responsible for the terms of the commercial lease.  This case is MLG Enterprises, LLC v. Richard L. Johnson, 2016 WL 4582174 (Tenn. 2016).  In this case, the individual Defendant, Richard Johnson, signed a lease on behalf of the tenant as well as individually.  The key issue in this case was where Mr. Johnson signed the lease individually in such a way that made him personally obligated as a guarantor for the lease terms.  The Tennessee Supreme Court identified the key signature line as follows:

 

The third signature space, located on the right side of the Lease and below the second signature space, provides a signature line beneath which appears the typed text “Richard L. Johnson.” On this line is the handwritten signature “Richard L. Johnson” followed by the handwritten words “for Mobile Master Mfg. LLC.” To the left of this signature appears the typed text “EXECUTED BY Richard L. Johnson, THIS ___ DAY OF OCTOBER, 2007.”

  

As you can see, Mr. Johnson signed the lease individually but then added the words “for Mobile Master Mfg. LLC”.  The implication was that he was not signing on his own behalf but instead he was signing for the entity.  The Tennessee Supreme Court found that this modification of the signature was ineffective because it was contrary to the clear language in the lease.

 

The Court found that Mr. Johnson was liable under the lease because of the clear intent of the lease to hold him personally liable.  That is due to the fact that the preceding paragraph prior to the signatures contained the following personal guaranty language:

 

37. PERSONAL LIABILITY:

In consideration of Landlord entering into this Lease with Tenant, Richard L. Johnson hereby agrees that he shall be personally liable for all of Tenant's obligations under this Lease and executes this Lease for this purpose.

 

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TAGS: Corporation/LLC Law, Contracts Comments [0]
  
 

Most Recent Tennessee Judiciary Report (Fiscal Year 2014 – 2015) Shows Tennessee Case Filings Continue to Decline

Posted on Aug 22 2016 9:06AM by Attorney, Jason A. Lee

Every year the Tennessee Administrative Office of the Courts issues a report on the Tennessee judiciary.  This report shows many different useful statistics for case filings (and other important court system information) in Tennessee.  The most recent report for fiscal year 2014 – 2015 (covering July 1, 2014 to June 30, 2015) was recently released.  This report confirms the longstanding trends in the law in Tennessee.  There is now a longstanding trend downward in the case filings in both Circuit and Chancery courts since at least 2005.  This new report further confirms, once again, this trend for both courts. 

 

The statistics show a continued decrease in the filing of Tennessee Circuit Court cases.  The total number of case filings for Tennessee Circuit Courts from 2005 to 2015 are as follows:

 

            2005 – 2006                                                                  67,090

            2006 – 2007                                                                  64,837

            2007 – 2008                                                                  62,204

            2008 – 2009                                                      &nb...

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2016 Tennessee Legislation Provides Immunity to Businesses and Premises Owners for Failure to Prohibit Weapons on Property

Posted on Jul 31 2016 1:53PM by Attorney, Jason A. Lee

One interesting theory of potential liability against a premises owner is to sue the premises owner for civil liability regarding something that occurred on the property involving guns or other weapons.  The Tennessee legislature previously adopted T.C.A. § 39-17-1359 which provides that a person, business or other entity who controls or manages properties, has the authority to prohibit weapons on that property by making a specific posting.  The key language in that statute is as follows:

 

(a)(1) Except as provided in § 39-17-1313, an individual, corporation, business entity or local, state or federal government entity or agent thereof is authorized to prohibit the possession of weapons by any person who is at a meeting conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity.

(2) The prohibition in subdivision (a)(1) shall apply to any person who is authorized to carry a firearm by authority of § 39-17-1351.

 

The question that has come up since the adoption of this statute (T.C.A. § 39-17-1359), is whether premises owners can be held liable if they do not ban guns from their property using this posting procedure and there is an incident that involves injury to an individual due to the use of such weapons.  The Tennessee legislator addressed this issue in 2016 when it adopted Public Chapter No. 947, which took effect July 1, 2016.  This new statute provides immunity for people, businesses or entities that own property under the legal theory that they failed to prohibit weapons on their property and an injury or death resulted from those weapons.  In other words, under this new statute, the theory that a landowner had the power to ban weapons under T.C.A. § 39-17-1359, they failed to do so, and therefore they are liable for gun violence on their property – is not a legal theory that is viable in Tennessee.  This statute will be found in Title 39, Chapter 17, Part 13, but it has not yet been officially placed in the Tennessee Code (it should be very soon).  This new statute provides as follows:

 

(a) A person, business, or

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TAGS: 2016 Tennessee Legislation, Immunity, Tennessee Premises Liability Comments [0]
  
 

Misrepresentation of Licensed Contractor Status in Tennessee Can Cause Significant Liability

Posted on Jul 4 2016 3:54PM by Attorney, Jason A. Lee

Tennessee law is clear that any person, firm or corporation who misrepresents that they are a licensed contractor is subject to significant penalties.  It is also against Tennessee law to act in the capacity of a “contractor” in Tennessee when one is not properly licensed.  Specifically, T.C.A. § 62-6-136 discusses this issue in subsection (A) as follows:

 

(a) It is unlawful for any person, firm or corporation to represent itself as a licensed contractor or to act in the capacity of a “contractor” as defined in §§ 62-6-102, or 62-37-103, and related rules and regulations of this state, or any similar statutes, rules and regulations of another state, while not licensed, unless such person, firm or corporation has been duly licensed under § 62-6-103 or § 62-37-104.

 

A licensed contractor is specifically defined in this statute.  This is a rather lengthy statute, but the key part is the provision that licensure is required for projects beyond $25,000.00.  The complete definition is found in T.C.A. § 62-6-102 which defines a contractor as follows:

 

(4)(A)(i) “Contractor” means any person or entity that undertakes to, attempts to or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down or furnishing labor to install material or equipment for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, housing development, improvement or any other construction undertaking for which the total cost is twenty-five thousand dollars ($25,000) or more; provided, however, with respect to a licensed masonry contractor, such term means and includes the masonry portion of the construction project, the total cost of which exceeds one hundred thousand dollars ($100,000), materials and labor;

(ii) “Contractor” includes, but is not limited to, a prime contractor, electrical contractor, electrical subcontractor, mechanical contractor, mechanical subcontractor, plumbing contractor and plumbing subcontractor, masonry contractor, and roofing subcontractor where the total cost of the roofing portion of the construction project is twenty-five thousand dollars ($25,000) or more;

(iii...

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TAGS: Damages, Tennessee Consumer Protection Act, Corporation/LLC Law, Construction Law Comments [0]
  
 

“Reasonable” Medical Expenses in Tennessee (Amount Billed or Amount Paid?) – The Law After West and Dedmon for Personal Injury Litigation

Posted on Jun 7 2016 3:21PM by Attorney, Jason A. Lee

A very important Tennessee Court of Appeals opinion was issued on June 2, 2016.  In this case, Jean Dedmon v. Debbie Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016), the Court discussed whether the amount an insurance company actually pays for medical services in a personal injury action, is, as a matter of law, the “reasonable” amount of medical expenses.  In order to recover medical expenses under Tennessee law, in a personal injury action, the plaintiff must prove the medical expenses were reasonable and necessary.  The reason the Dedmon decision is so important is because of the West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) decision.  In the West case, the Tennessee Supreme Court, when interpreting the Tennessee Hospital Lien Act, essentially found that a hospital’s non-discounted charges reflected in their lien, were not reasonable because they do not reflect what is actually being paid in the marketplace.  The Court found that, under the Tennessee Hospital Lien Act, the amount actually paid for the hospital charges were the reasonable charges for the services provided, not the amounts billed which were, as a matter of law, unreasonable.

 

Since the time of the West decision, several trial courts and some Federal district courts have decided that the West case reasoning also applies to personal injury actions.  They have found that essentially, in a personal injury action in the State of Tennessee, evidence of the actual amount actually paid for medical bills is the only amount that can be introduced into evidence, not the amount billed or charged by the provider.  The reason is, due to insurance industry dynamics, there is almost always a significant difference in the amount billed or charged by the provider and the amount actually paid by insurance, Medicare or otherwise.  For instance, in the Dedmon case, the total amount of “incurred” medical expenses were $52,482.87 (the amount charged by the providers).  However, the plaintiff’s health insurance carrier only paid $18,255.42.  As a result, there is a significant disparity between the amount billed and the amount actually paid.


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TAGS: Tennessee Tort Reform, Damages, Evidence, Civil Procedure Comments [1]
  
 

Tennessee Changes Statute of Limitations Law for Individuals Who Are Incapacitated or Incompetent.

Posted on May 27 2016 4:54PM by Attorney, Jason A. Lee

Tennessee law has long provided that individuals who are adjudicated incompetent at the time the cause of action accrued, may commence the action after their legal rights are restored within the normal time period for the statute of limitations for that cause of action.  The statute did not provide for the statute of limitations time period to run if they never gained competency.  As a result, essentially, an individual who was incompetent who was permanently incompetent, would not have any statute of limitations for any cause of action until the time they die.

 

In 2016, the Tennessee legislator fixed this problem by amending the applicable statute, T.C.A. § 28-1-106 in Public Chapter 932.  They added subsection (c)(2) of this statute now provides that any individual who has a court-ordered fiduciary (such as a guardian or conservator) or someone who possesses the legal right to bring suit on behalf of a person who lacks capacity, must commence the action on behalf of that person within the applicable statute of limitations.  The statute provides that the fiduciary may not rely upon any tolling of the statute of limitations unless the individual can establish by “clear and convincing evidence that the individual did not and could not reasonably have known of the accrued cause of action.”

 

The new statute (T.C.A. § 28-1-106) now provides the following:

 

(a) If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

(b) Persons over the age of eighteen (18) years of age are presumed competent.

(c)(1) If the person entitled to commence an action, at the time the cause of action accrued, lacks capacity, such person or such person's representatives and privies, as the case may be, may commence the action, after removal of such incapacity, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from removal of such incapacity, except as provided for in subdivision (c)(2).

(2) Any individual with court-ordered fiduciary responsibility towards a person who lacks capacity, or any individual who possesses the legal right to bring suit on behalf of a person who lacks c...

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TAGS: Defenses, 2016 Tennessee Legislation, Statute of Limitations Comments [0]
  
 

Legitimate Business Interest Needed to Enforce Tennessee Non-Compete Agreements

Posted on May 15 2016 3:03PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals in John Jason Davis v. Johnstone Group Inc. v. Appraisal Services Group, Inc., No. W2015-01884-COA-R3-CV, 2016 WL 908902 (Tenn. Ct. App. 2016) discussed the enforceability of a non-compete agreement and a request for injunctive relief.  The key issues in this case was whether there was a legitimate business protectable business interest that would justify the enforcement of this non-competition agreement.  This case provides a very good overview of Tennessee law on the enforcement of non-competition agreements. 

 

The Court noted that non-compete agreements are disfavored in Tennessee because they restrain trade (citing Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. 1984)).  However, the Court found that Tennessee Courts will still uphold agreements if the restrictions are reasonable.  Additionally, the time and territorial of limits of the agreement must be no greater than is necessary to protect the business interests of the employer (citing Matthews v. Barnes, 293 S.W. 1993 (Tenn. 1927)). 

 

The Court noted that the Tennessee Supreme Court’s analysis in the Hasty opinion is the key case law on the issue of whether a legitimate business interest justifies the enforcement of the non-competition clause.  Specifically, the Tennessee Supreme Court in the Hasty case said as follows:

 

Of course, any competition by a former employee may well injure the business of the employer. An employer, however, cannot by contract restrain ordinary competition. In order for an employer to be entitled to protection, there must be special facts present over and above ordinary competition. These special facts must be such that without the covenant not to compete the employee would gain an unfair advantage in future competition with the employer.

 

Hasty, 671 S.W.2d at 473.  As a result, the employer trying to enforce the agreement must show special facts “beyond protection from ordinary competition that would give” the employee...

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TAGS: Breach of Contract, Employment Law, Corporation/LLC Law, Contracts Comments [0]
  
 
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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