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In Tennessee, can a Parent Recover in a Wrongful Death Suit when they Owe Child Support?

Posted on Nov 25 2013 9:40AM by Attorney, Jason A. Lee

Analysis:  Tennessee has a statute that address whether a parent can recover in a wrongful death cause of action when they have not paid child support.  Specifically, T.C.A. § 20-5-107 provides that a parent cannot recover through a wrongful death action until all child support obligations, along with interest, have been paid.  T.C.A. § 20-5-107(b) provides as follows:

 

(b) In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent's estate if deceased.

 

Additionally, a parent who has intentionally refused and neglected to pay child support for a two year period (or for the life of the child if it is less) can be prevented from recovering under the Tennessee wrongful death statute under certain circumstances.  If this person was subject to a court order requiring payment of child support and failed to do so and if they intentionally refused or neglected to contact the child or exercise visitation rights, then they are not permitted to recover for a wrongful death action in Tennessee on behalf of their child.  Specifically, T.C.A. § 20-5-107(c) provides as follows:

 

(c) Notwithstanding any law to the contrary, a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period, shall not be permitted to recover through an action commenced pursuant to subsection (a) and § 20-5-106.

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TAGS: Defenses, Torts, Wrongful Death Comments [0]
  
 

What is the Current Motion for Summary Judgment Standard under Tennessee Law?

Posted on Nov 18 2013 9:22AM by Attorney, Jason A. Lee

Analysis:  The Tennessee legal standard for a motion for summary judgment has changed in the recent past.  The Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008) opinion by the Tennessee Supreme Court modified the motion for summary judgment standard in October 2008.  As of that time the court found that summary judgment is only appropriate for a party if the evidence “(1) affirmatively negates an essential element of the nonmoving party’s claim or (2) shows that the nonmoving party cannot prove an essential element of the claim at trial.”  Hannan at 10.  This Hannan standard made it very difficult to obtain a motion for summary judgment in Tennessee. 

 

As a result, the Tennessee legislature passed T.C.A. § 20-16-101 which went into effect on July 1, 2011.  This new motion for summary judgment standard applies to all actions filed on or after July 1, 2011.  In the text of Public Chapter 498 the legislature specifically stated that, “Whereas this higher Hannan standard results in fewer cases being resolved by summary judgment in state court, increasing the litigation costs of litigants in Tennessee state courts and encouraging forum shopping; and Whereas, the purpose of this legislation is to overrule the summary judgment standard for parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publishing Co., its progeny, and the cases relied on in Hannan.”  As a result, the Tennessee legislature established a new standard in T.C.A. § 20-16-101 which provides as follows:

 

In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

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TAGS: Summary Judgment Comments [0]
  
 

How are Tennessee Statutes of Limitations Applied when the Claimant is a Minor or Incompetent Person?

Posted on Nov 11 2013 10:18AM by Attorney, Jason A. Lee

Analysis:  Statutes of limitations under Tennessee law are generally governed by Tennessee statute.  A specific time period is outlined in the statute within which a cause of action must be filed after a specific event.  However, there are certain exceptions to the statute of limitations in Tennessee.  One such exception is when the person experiences “incapacity”.   T.C.A. § 28-1-106 provides that if an individual, at the time a cause of action accrues, is under 18 years of age or is adjudicated incompetent then the statute of limitations is tolled (or put on hold) under their “legal rights” are restored.  For someone who is a minor, their “legal rights” are restored at the age of 18.  Their 18th birthday begins the time period for the original statute of limitations for the cause of action.  For example, if a 15 year old minor is injured in an automobile accident, the one year statute of limitations for the personal injury action begins to run on their 18th birthday so they would have one year to file the cause of action from the date of their 18th birthday.   However, if the statute of limitations is greater than three years then they are limited to only three years from the date of their 18th birthday (the date of the restoration of their “legal rights”). 

 

For an individual who is adjudicated incompetent at the time the cause of action accrued, the statute of limitations begins to run from the date their “legal rights are restored” (that would be the date they became competent again).  They can therefore commence the cause of action within the original statute of limitations from the date their legal rights are restored.  They also have the same three year cap for any statute of limitations period that exceeds three years.  T.C.A. § 28-1-106 in its entirety provides as follows:

 

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.

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TAGS: Defenses, Tennessee Medical Malpractice/Health Care Liability, Statute of Limitations, Statute of Repose Comments [0]
  
 

What “Rules of the Road” Apply to Riding an Animal or Animal Drawn Vehicle in Tennessee?

Posted on Nov 3 2013 4:25PM by Attorney, Jason A. Lee

Analysis:  I was recently asked what Tennessee statutes govern whether horses are allowed on roadways and what “rules of the road” would apply to horses or other animal drawn vehicles.  Tennessee has a statute that cover this issue.  T.C.A. § 55-8-105 provides that animals and animal drawn vehicles on the roadway are basically subject to the same laws as all other vehicles on the road.  They are granted the same rights as well as the same duties that are provided to motor vehicles under Tennessee law. 

 

T.C.A. § 55-8-105 provides as follows:

 

Every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this chapter and chapter 10, parts 1-5 of this title, except those provisions of this chapter and chapter 10, parts 1-5 of this title that by their very nature can have no application.

 

The only exception listed in this statute where the rules of the road and duties applicable to drivers of motor vehicles do not apply are where the statute by its very nature could have no application.  For example, if there are specific statutes that discuss braking requirements or turn signals, those would not apply to someone who is riding a horse under T.C.A. § 55-8-105. 

 

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TAGS: Negligence, Automobile/Motorcycle Liability Comments [0]
  
 
Author

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
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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