Tennessee Judiciary Report (Fiscal Year 2016 – 2017) Shows Tennessee Case Filings Continue to Decline

Every year the Tennessee Administrative Office of the Courts issues a report on the Tennessee judiciary that provides useful statistics for case filings and results Tennessee.  The most recent report is the one for fiscal year 2016 – 2017 (covering July 1, 2016 to June 30, 2017).  As with every year, there is a significant delay from the end of the fiscal year and the time we actually obtain the annual report.  This report confirms the longstanding trends in the law in Tennessee – especially in the Circuit court filings.  There is now a longstanding trend downward in the case filings in both Circuit and Chancery courts since at least 2005 (although Chancery Court has stabilized over the last 2 years) this year, Circuit court even had a more drastic drop in filings.   

The statistics show a continued decrease in the filing of Tennessee Circuit Court cases.  This decrease has accelerated in recent years.  The total number of case filings for Tennessee Circuit Courts from 2005 to 2017 are as follows:

            2005 – 2006                                                                  67,090

            2006 – 2007                                                                  64,837

            2007 – 2008                                                                  62,204

            2008 – 2009                  &nb...

Tennessee Retaliatory Discharge Claims Against Employers

Tennessee has a statute that protects employees from employers who terminate an employee in retaliation for reporting illegal activities. This statute is found in T.C.A. § 50-1-304 and is called the Tennessee “Retaliatory Discharge” statute.  The design of the statute is to protect employees from being terminated solely for opposing or speaking up about illegal activities at the employer.  It is a whistleblower protection statute that is important to protect employees who have the courage to speak up about illegal activities.

The most important sections of this statute are found which describe the intent and purpose of the statute are found in subsection (b), (c) and (f) as follows:

(b) No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.

(c)(1) Any employee terminated in violation of subsection (b) shall have a cause of action against the employer for retaliatory discharge and any other damages to which the employee may be entitled, subject to the limitations set out in § 4-21-313.

(2) Any employee terminated in violation of subsection (b) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for retaliatory discharge for the actions shall be entitled to recover reasonable attorney fees and costs.

……….

 (f) In any civil cause of action for retaliatory discharge brought pursuant to this section, or in any civil cause of action alleging retaliation for refusing to participate in or remain silent about illegal activities, the plaintiff shall have the burden of establishing a prima facie case of retaliatory discharge. If the plaintiff satisfies this burden, the burden shall then be on the defendant to produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed for the plaintiff's discharge. The burden on the defendant is one of production and not persuasion. If the defendant produces such evidence, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted, and the burden shifts to the plaintiff to demonstrate that the reason given by the defendant was not the true reason for the plaintiff's discharge and that the stated reason was a pretext for unlawful retaliation. The foregoing allocations of burdens of proof shall apply at all stages of the proceedings, including motions for summary judgment. The plaintiff at all times retains the burden of persuading the trier of fact that the plaintiff has been the victim of unlawful retaliation.

Tennessee Caps on Damages for Sexual Harassment Cases

Tennessee sexual harassment cases that are brought against an employer are governed by the Tennessee Human Rights Act. The underlying basis for claims against an employer for sexual harassment fall under the provision in T.C.A. § 4-21-401 that provides that it is a discriminatory practice for an employer to “fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, creed, color, religion, sex, age or national origin…”.  Sexual harassment cases fall within this section and I have previously discussed the Tennessee law standard for a sexual harassment case in my prior blog post here.

It is important to note that there are specific caps on damages for Tennessee sexual harassment claims (as well as other discriminatory causes of action brought against employers under the Tennessee Human Rights Act). Specifically, this statute provides the following in T.C.A. § 4-21-313:

(a) For any cause of action arising under § 4-21-401, § 8-50-103, or § 50-1-304, the sum of the amount of compensatory damages awarded for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, shall not exceed, for each complaining party:

(1) In the case of a cause of action arising under § 50-1-304 and an employer who has less than eight (8) employees at the time the cause of action arose, twenty-five thousand dollars ($25,000);

(2) In the case of an employer who has eight (8) or more but fewer than fifteen (15) employees at the time the cause of action arose, twenty-five thousand dollars ($25,000);

(3) In the case of an employer who has more than fourteen (14) and fewer than one hundred one (101) employees at the time the cause of action arose, fifty thousand dollars ($50,000);

(4) In the case of an employer who has more than one hundred (100) and fewer than two hundred one (201) employees at the time the cause of action arose, one hundred thousand dollars ($100,000);

(5) In the case of an employer who has more than two hundred (200) and fewer than five hundred one (501) employees at the time the cause of action arose, two hundred thousand dollars ($200,000); and

Recent Tennessee Judiciary Report (Fiscal Year 2015 – 2016) Shows Tennessee Case Filings Continue to Decline

Each year the Tennessee Administrative Office of the Courts issues a report on the Tennessee judiciary that provides many different useful statistics for case filings and results Tennessee.  The most recent report is the one for fiscal year 2015 – 2016 (covering July 1, 2015 to June 30, 2016).  For some reason, there is a delay in receiving the report for the 2016 – 2017 fiscal year (as of the sate of this posting, it has been almost 7 months since the end of the fiscal year). This report once again 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 (although Chancery Court stabilized some this year, Circuit court even had a more drastic drop in filings.    

The statistics show a continued decrease in the filing of Tennessee Circuit Court cases.  This decrease has accelerated in recent years.  The total number of case filings for Tennessee Circuit Courts from 2005 to 2016 are as follows:

            2005 – 2006                                                                  67,090

            2006 – 2007                                                                  64,837

            2007 – 2008                                                                  62,204

Tennessee Tort of “Intentional Infliction of Emotional Distress”

Tennessee has the tort of Intentional Infliction of Emotional Distress which is an important cause of action that allows a plaintiff to recover damages when the conduct of the defendant is outrageous.  There are very specific requirements for a plaintiff to be able to prove this cause of action in court.  In order to support a claim for Intentional Infliction of Emotional Distress, the Tennessee Supreme Court has held that the following elements are required:

The elements of an intentional infliction of emotional distress claim are that the defendant's conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff. Regarding the first element, the law is clear in Tennessee and elsewhere that either intentional or reckless conduct on the part of the defendant will suffice to establish intentional infliction of emotional distress.

Rogers v. Louisville Land Company et al, 367 S.W.3d 196, 205 (Tenn. 2012).  The Rogers case is a very important Tennessee Supreme Court case that definitively outlined the requirements for this cause of action.  In this case the court made it very clear that there is no difference between a claim for Intentional Infliction of Emotional Distress and the claim for Reckless Infliction of Emotional Distress. Both are considered part of the same cause of action (either intentional or reckless conduct is sufficient to meet the threshold required for this cause of action).

Further, the familiar standard of “outrageous” conduct that has long been required for an Intentional Infliction of Emotional Distress claim still stands. Specifically, that the conduct must be “so outrageous that it is not tolerated by civilized society”.  Obviously, this is generally a jury issue however courts have long stepped in to evaluate whether the facts of a case meet this threshold before sending the case to the jury.  This standard is a standard that can change over time because it is based on what is tolerated by “civilized society”.  For example, it is my view that certain types of sexual harassment and sexually hostile work environment situations are currently experiencing a shift in what is tolerated by “civilized” society. Importantly, our country is making significant progress on what it considers to be outrageous conduct by individuals who sexually harass women.  It is my position, therefore, that this standard has changed over time and what may not have been considered outrageous conduct in the 1980s certainly is outrageous conduct today.

Tennessee Supreme Court Overturns COA Dedmon case - Key Decision for Personal Injury cases on Medical Bill Evidence

The Tennessee Supreme Court issued a very important decision today on the appeal in the Dedmon case.  Many people have been waiting on this decision from the plaintiff’s side and the defendant’s side.  The Dedmon case was the case where the Tennessee Court of Appeals ruled that defendants, in personal injury cases, could introduce evidence of the discounted amounts accepted by health providers or paid by insurance companies.  I previously blogged on this prior ruling here.  

The Tennessee Supreme Court reversed the key part of the prior Tennessee Court of Appeals decision today.  The key part in the new case (and a good summary of the current status of the law on this issue) is the following:

In sum, we hold that the definition of “reasonable charges” under the Hospital Lien Act set forth in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), does not apply directly to determinations of “reasonable medical expenses” in personal injury cases; the West definition of “reasonable charges” is limited in application to interpretation of the Hospital Lien Act. We also decline to alter existing law in Tennessee regarding the collateral source rule. Consequently, the Plaintiffs may submit evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her “reasonable medical expenses,” and the Defendants are precluded from submitting evidence of discounted rates for medical services accepted by medical providers as a result of Mrs.  Dedmon’s insurance. The Defendants remain free to submit any other competent evidence to rebut the Plaintiffs’ proof on the reasonableness of Mrs. Dedmon’s medical expenses, so long as the Defendants’ proof does not contravene the collateral source rule.  Thus, we affirm the Court of Appeals’ decision to reverse the trial court’s grant of the Defendants’ motion in limine, but we reverse the Court of Appeals to the extent that it held that the Defendants could introduce evidence of lesser amounts accepted by Mrs. Dedmon’s medical providers in order to rebut the Plaintiffs’ proof on reasonableness.

As a result, this basically returns the status of the law on this issue in Tennessee to the prior status quo.  Usually, the only evidence that a jury will now hear about the medical bills in a case is the amount of the medical bills charged by the medical care provider.  This effectively greatly inflates (in many situations) the amount of “medical bills” for an injury.  However, this is the law in Tennessee.  I expect this will not be the end of this issue and the Tennessee Legislature will take a look at trying to find a solution in the coming years.

Equal Pay Act Claims in Tennessee

Equal Pay Act claims in Tennessee are essentially claims usually involve situations where a female employee is paid less than a male employee for the same job.  These claims can be brought in Tennessee under the Tennessee Equal Pay Act (found in T.C.A. § 50-2-201 et al) and under the Federal Equal Pay Act (found in 29 U.S.C. § 206(d)).  These statutes basically are very similar to each other.  These types of pay disparity claims can also be brought under Title VII for sex discrimination.

Initial Burden of the Plaintiff:

To establish a prima facie claim of unequal pay for equal work under the EPA, a plaintiff has the burden to prove that the employer “pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Vehar v. Cole Nat'l Group, Inc., 251 Fed.Appx. 993, 998 (6th Cir. 2007).  Essentially, a female employee meets this burden if she proves that she is paid less than a male employee performing the same job (does not need to be perfectly identical but does need to be substantially similar) at the employer.

Defenses Available to Employer:

After this initial burden is met by the employee, then the employer has some available defenses to try to combat a finding of liability under the EPA.  Specifically, once a plaintiff establishes a prima facie case of disparate pay, the burden shifts to the defendant to prove the wage differential is justified under one of four affirmative defenses: “(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor other than sex.” Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 (6th Cir.1998). 

I...

Sexual Harassment and Sexually Hostile Work Environment Claims in Tennessee – General Overview

Sexual Harassment and Sexually Hostile Work Environment claims are both recognized in Tennessee under state law and federal Law (pursuant to Title VII).  These are very significant claims often involving the harassment of a female by a male supervisor or co-worker.  The standards for an employer’s liability are different under each of those scenarios (this will be discussed in a subsequent blog post on this topic).  It is important to note that Tennessee courts often look to federal law for guidance on interpretation of Tennessee’s own discrimination statutes, because they are so similar.

A sexual harassment “quid pro quo” claim in Tennessee is established using the following elements to support the cause of action:

(1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability.

Sanders v. Lanier, 968 S.W.2d 787, 789 (Tenn. 1998).  This type of claim mainly focuses on unwanted sexual advances or requests for sexual favors.  Believe it or not, these situations are much more common than you would think.  Federal law has similar protections against this type of action in the workplace.

Another type of claim under Tennessee law is a sexually hostile work environment claim.  This is based on sexual harassment of an employee based on their sex.  Often, this could involve crude sexual jokes, sexual comments, inappropriate touching or grabbing and other similar conduct – most often directed at women.  Tennessee courts have provided the following as the elements required for this type of case in Tennessee:

To prevail on a hostile work environment claim in a sexual harassment case, an employee must assert and prove that (1)...

Recent Tennessee Court of Appeals Decision Finds that One Year Statute of Limitations May Not Apply to Uninsured Motorist Claims

The Tennessee Court of Appeals in Larry Stine Bates v. Michael J. Greene, W2016-01868-COA-R3-CV, 2017 WL 3206599 (Tenn. Ct. App. 2017) dealt with an interesting issue involving the statute of limitations that applies to the filing of a claim against an uninsured motorist carrier.  The uninsured motorist carrier in this case was Shelter Insurance. The plaintiff filed suit against the defendant, the alleged tortfeasor, within one year of the accident. However, the civil warrant was returned unserved. An alias was then issued for the defendant but it was also returned unserved. Over two years after the actual accident, an amended alias civil warrant was issued against the defendant, which added Shelter Insurance Company, plaintiff’s uninsured motorist carrier, as a defendant. The uninsured motorist carrier was served over two years after the accident occurred.

As a result, the insurance company filed a Motion for Summary Judgment and claimed that the action against it was barred by the one-year statute of limitations applicable to personal injury actions. The circuit court agreed and granted the Motion for Summary Judgment, dismissing the case against the uninsured motorist carrier. The court found the one-year personal injury statute of limitations applied to the uninsured motorist claim.

On appeal, the Tennessee Court of Appeals reviewed the situation in detail. They reviewed a significant amount of prior cases as well as statutory changes to the uninsured motorist statute.  Ultimately, the Court concluded that in this case, the one-year statute of limitations for a personal injury claim did not apply. Instead, the six-year statute of limitations for a contract cause of action applied for the claim against the uninsured motorist carrier.  Multiple prior Tennessee cases have held consistent with this opinion in the past. The Court also analyzed T.C.A. § 56 -7-1206(d) which provides the following:

(d) In the event that service of process against the uninsured motorist, which was issued to the motorist's last known address, is returned by the sheriff or other process server marked, “Not to be found in my county,” or words to that effect, or if service of process is being made upon the secretary of state for a nonresident uninsured motorist and the registered notice to the last known address is returned without service on the uninsured motorist, the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in the case.

Based on this statute the Court noted that the legislator intended that a plaintiff could sue the uninsured m...

2017 Tennessee Legislature Adds Requirement that Terms in Tennessee Statutes are Given Their “Natural and Ordinary” Meaning

The Tennessee Legislature passed a new law in 2017 that governs appropriate statutory construction.  This is an interesting change that has application to all of the words in the Tennessee Code that do not have a definition provided in the code.  This new law was passed as Public Chapter No. 302 and signed into law by Governor Bill Haslam on May 5, 2017, and it took effect immediately.  It is codified now in T.C.A. § 1-3-105.  This statute is not often cited to but is important to know about because it provides definitions for certain words provided for in the Tennessee Code (such as “property”, “highway”, “real property”, “age of majority”, “record” and other terms).

This new law provides as follows:

(b) As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.

It appears to me that this new statute is designed to prevent judicial overreach in redefining terms outside of their normal meaning.   Sometimes in cases, key terms in statutes do not have a definition within the Tennessee Code and the lawyers and the Court must interpret the term.  This new law provides guiding principles for statutory construction that are intended to prevent odd or unique interpretation of key terms in statutes.  The only way to interpret a word beyond the “natural and ordinary meaning” is if the “contrary intention is clearly manifest”.  That is a very high standard and should not be taken lightly.  I interpret that standard to be when the statute actually misuses a word and a contrary interpretation is compelled by the clear intent of the legislation.  This should rarely be applied.

Some specific terms that are defined in this statute (T.C.A. § 1-3-105) that may be helpful to review and remember include the following:

(1) “Age of majority” means eighteen (18) years of age or older; except that when purchasing, consuming or possessing alcoholic beverages, wine or beer as those terms are defined in titl...