Statute of Limitations - In Tennessee can parties to an employment contract create a shorter length statute of limitations (six months) for a retaliatory discharge claim?

Brief Summary:  The recent Tennessee Court of Appeals decision of Karim Skaan v. Federal Express Corporation, No. 2011-01807-COA-R3-CV, 2012 WL 6212891 (Tenn. Ct. App. December 13, 2012) discussed whether parties can shorten a statute of limitations time period for a retaliatory discharge claim in an employment contract.  The pertinent facts for purposes of this post are that Federal Express hired Mr. Skaan in 1999 as an employee and in the employment paperwork Mr. Skaan signed an employment agreement.  Skaan at 1, 2.  Paragraph 15 of the employment agreement provided as follows:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

Skaan at 2.  As a result, the plain language of the employment agreement requires that any legal action against Federal Express Corporation by the employee must be filed within six months of the date of the event forming the basis of the lawsuit (or the time period could be even less than six months if the law provides).  Skaan at 2.  Mr. Skaan was terminated from his job by Federal Express.  He claimed he was terminated due to the filing of a workers compensation claim.  Skaan at 2.

Mr. Skaan did not file any claim against Federal Express until eight months after his termination from his employment.  Skaan at 2.  This case has lots of facts and interesting information pertaining to what evidence was presented on appeal however for our purpose the issue we are discussing in this post simply pertains to whether...

Construction Defect - Under Tennessee law what is required to establish a claim for intentional misrepresentation for a construction defect claim?

Analysis:  The recent Tennessee Court of Appeals decision of Brooke Buttrey v. Holloway's, Inc., No. M2011-01335-COA-R3-CV, 2012 WL 6451802 (Tenn. Ct. App. December 12, 2012) discussed the Tennessee tort of intentional misrepresentation in the context of a construction defect case.  In this case the trial court found there was ample evidence the home was not constructed in a workmanlike manner.  Buttrey at 5.  In fact the defendant did not even appeal this issue to the Tennessee Court of Appeals.  However, the defendant did appeal the trial court's ruling that the defendant was responsible for intentional misrepresentation under Tennessee law.

Under Tennessee law in order to establish a claim for fraudulent or intentional misrepresentation (these two torts have identical elements) the plaintiff must prove the following:

1) the defendant made a representation of an existing or past fact; 2) the representation was false when made; 3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly; 5) the plaintiff reasonably relied on the misrepresented material fact; and 6) the plaintiff suffered damage as a result of the misrepresentation.

Buttrey at 5 (citing Walker v. Sunrise Pontiac – GMC Truck, 249 S.W.3d 301, 311 (Tenn. 2008)).  One of the alleged misrepresentations in this case was testified about by the plaintiff as follows:

Q: When you approached Mr. Holloway about building this home, did he make any representati...

Assisted Living Facility – Recent Tennessee Supreme Court decision discusses liability for failure to provide adequate staff by an assisted living facility.

Analysis:  The Tennessee Supreme Court recently decided a case pertaining to the liability of an assisted living facility's management company for failing to provide appropriate staff to the facility (Celebration Way facility).  Wilson v. Americare Systems, Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078 (Tenn. 2013).  At trial the jury found the management company (Americare Systems, Inc.) of an assisted living facility was negligent, causing the death of a resident, based on the fact it understaffed the facility.  Wilson at 1.  The resident of the facility, Mable Farrar, died from a perforated colon.  The testimony at trial showed that the assisted living facility failed to follow Ms. Farrar’s physician’s order to administer medicine for constipation.  Wilson at 1.  As a result of this failure to provide the prescribed medicine, Ms. Farrar became significantly constipated and her doctor therefore ordered the assisted living facility to give her three to four enemas a day.  Wilson at 1.  The assisted living facility only gave Ms. Farrar one enema on the first day after the order, none on the second day and one on the third day.  On the third day, after she received the enema, her colon perforated and she died.  Wilson at 1, 2.  The testimony at trial established she should not have been provided an enema by the facility nurse based on her physical status at that time.

Testimony at trial showed there were only two licensed nurses that worked at this facility.  Wilson at 7.  One of the nurses testified she was "always on call, twenty-four hours a day".  Wilson at 7.  The two licensed nurses had to cover a lot of shifts and were not paid overtime compensation because they were salaried employees.  Wilson at 7.  The nurses that worked at the facility as well as the regional operations director for the assisted living facility management company testified there were staffing problems at the facility.  There were numerous complaints from the staff at the facility requesting additional staffing in order to be able to provide adequate care for the residents.  Wilson at 6-8.  Despite these complaints, no additional staffing was provided to the facility.  Wilson at 7, 8

PART II (Seven year review) - What Tennessee jurisdictions were the most conservative or liberal for personal injury or death trials over the last seven years (July 1, 2005 – June 30, 2012)?

Every year the Tennessee Administrative Office of the Courts publishes the “Annual Report of the Tennessee Judiciary” to provide information on cases filed and decided in Tennessee.  I previously provided an article showing the percentage of trials in each Tennessee jurisdiction that resulted in damages (for personal injury or death cases) for fiscal year 2011-2012.  Based on the positive response to that article, I decided a longer term review was warranted to get more accurate numbers on how conservative or liberal a particular Tennessee jurisdiction is for trials involving personal injury cases.  The statistics in the below chart are for a seven year period from July 1, 2005 – June 30, 2012.  I will list the counties in order with the most conservative at the beginning of the list (and the most liberal at the bottom of the list) by percentage of personal injury or death trials where damages were awarded:

Tennessee Collateral Source Rule – Status of the pending proposed 2013 Tennessee legislation to abolish the collateral source rule in Tennessee.

The Tennessee legislature is considering many interesting pieces of legislation in the 2013 legislative session.  One bill that is of great interest to Tennessee attorneys as well as anyone handling Tennessee personal injury claims is SB 1184/HB 0978.  The bill is aptly named the “Phantom Damages Elimination Act”.  This bill would effectively abolish the collateral source rule in Tennessee. 

The collateral source rule prevents a defendant from introducing evidence that the injured plaintiff received payments from any other source to try to reduce or mitigate the damages sustained by the plaintiff.  The Tennessee Court of Appeals in Fye v. Kennedy, 991 S.W. 2d 754, 763 (Tenn. Ct. App. 1998) stated that:

An injured party's right to recover his or her “reasonable and necessary expenses” must be viewed in connection with the collateral source rule:

Normally, of course, in an action for damages in tort, the fact that the plaintiff has received payments from a collateral source, other than the defendant, is not admissible in evidence and does not reduce or mitigate the defendant's liability.

See also John Day’s detailed discussion of the collateral source rule on his blog for a more detailed discussion of the collateral source rule. 

Proposed SB 1184/HB 0978 would effectively eliminate the collateral source rule in Tennessee.  In fact, the language in the bill would only allow a plaintiff in a personal injury or wrongful death case to recover economic damages for medical and other costs of medical care for:

Settlement Agreement - In Tennessee can a party revoke a settlement agreement that was announced in open court before the final settlement order is entered?

Analysis:  The recent Tennessee Court of Appeals decision of Thomas Grigsby v. W. Arlen Harris, Sr., No. M2012-00370-COA-R3-CV, 2012 WL 6449782 (Tenn.Ct.App. December 12, 2012) discussed whether a party can withdraw a settlement agreement after it has been announced in open court.  This case involved a boundary line dispute between two parties.  Grigsby at 1.  On the morning of the trial, the parties announced in open court that they reached a settlement agreement resolving the boundary line dispute. Grigsby at 1.  The parties agreed to swap two pieces of property and a rough non-scale drawing was presented to the court at the hearing showing the parties agreement to the land swap. Grigsby at 1.  An order of the court was not entered at that time but rather the parties represented they were going to determine the exact terms of the swap based on a new survey that was to be completed and then the parties would submit a final order. Grigsby at 1, 2. 

After the hearing one of the parties decided they no longer wanted to submit to the terms of the settlement agreement.  They informed the court that they “misunderstood the amount of land that they were giving away and that land swap deprives them of their only means of access; to wit, the driveway, to their property” Grigsby at 2.  The trial court ultimately enforced the settlement agreement that was announced on the day of trial and entered an order approving the land swap.  Grigsby at 2, 3.

On appeal the Tennessee Court of Appeals found that Tennessee courts "now uniformly hold that if the terms of a settlement are announced to the court or memorialized in a signed, enforceable contract, a judgment may be entered thereon, even if one party later repudiates."  Grigsby at 4 (citing