Subpoena Exemption – Physician assistants are now exempt from subpoena to trial in Tennessee under new 2012 legislation

T.C.A. § 24-9-101 provides a list of individuals who are exempt from subpoena to trial in Tennessee.  All of these individuals are still subject to subpoena for a deposition in Tennessee but they can not be compelled to appear at trial by subpoena.  T.C.A. § 24-9-101 provides as follows: 

(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:

(1) An officer of the United States;

(2) An officer of this state;

(3) An officer of any court or municipality within the state;

(4) The clerk of any court of record other than that in which the suit is pending;

(5) A member of the general assembly while in session, or clerk or officer thereof;

(6) A practicing physician, physician assistant, psychologist, senior psychological examiner, chiropractor, dentist or attorney;

(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and

(8) A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided in title 68, chapter 11, part 4, for the production of hospital records pursuant to a subpoena duces tecum.

(b) If the court grants a motion to quash a subpoena issued pursuant to subsection (a), the court may award the party subpoenaed its reasonable attorney's fees and expenses incurred in defending against the subpoena.

On April 4, 2012 a new bill was passed and signed into law by Governor Haslam that modified this statute.  Tennessee Public Chapter No. 678 added...

Automobile Dealership Immunity – T.C.A. § 55-10-311 eliminates vicarious liability of automobile dealerships for loaner vehicles

The Tennessee legislature adopted Public Chapter No. 884 which was signed by Governor Bill Haslam on May 9, 2012.  This bill amended T.C.A. § 55-10-311 to add a provision that eliminates the vicarious liability of automobile dealerships who provide loaner vehicles in certain circumstances.  The pertinent amendment to the bill is T.C.A. § 55-10-311(b)* which now provides: 

(b) Any automobile dealer who provides a loaner vehicle to a customer without charge while the customer's vehicle is being serviced or repaired by the dealer shall not be vicariously liable under any vicarious liability theory, to any person injured as the result of an accident caused in whole or in part by a customer driving a loaner vehicle provided by the dealer where the dealer was provided with proof of insurance by the customer prior to the customer being provided with the loaner vehicle.

This amendment to the statute eliminates vicarious liability for an automobile dealership that loans a car to a customer, without charge, while that customer’s automobile is being serviced or repaired.  The only requirement for the elimination of vicarious liability is that the dealer must have received proof of insurance by the customer prior to the time that the customer was provided with the loaner vehicle. 

T.C.A. § 55-10-312* was also amended by adding subsection (b) to the statute as follows: 

(a) Proof of the registration of the motor-propelled vehicle in the name of any person shall be prima facie evidence of ownership of the motor propelled vehicle by the person in whose name the vehicle is registered; and the proof of registration shall likewise be prima facie evidence that the vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of the servant's employment.

(b) Subsection (a) shall not apply any automobile dealer who provides a customer a loaner vehicle without charge while the customer's vehicle is being serviced or repaired by the dealer. The dealer shall not be vicariously liable under any vicarious liability theory, to any person injured as the result of an accident caused in whole or in part by a customer driving a loaner vehicle provided by the dealer where the dealer was pro...

Settlement Agreement – Difficulty to overturn a settlement agreement

Brief Summary:  This new case shows how difficult it is to overturn a settlement agreement in Tennessee.  It is difficult even when the plaintiff misrepresents material facts that were in dispute in the settled lawsuit.  The Tennessee Court of Appeals found it is an important public policy to keep “circumstances by which a party may overturn a prior final judgment” very narrow.

Analysis:  The Tennessee Court of Appeals decision of Tia Gentry v. Dale Larkin, E2011-02402-COA-R3-CV, 389 S.W.3d 329 (filed July 13, 2012) decided a case involving the “slayer’s statute”.  This case has very interesting facts and deals with an important question of law in Tennessee pertaining to overturning a settlement agreement due to fraud. 

Tennessee has a “slayer’s statute” or “killing statute” found in T.C.A. § 31-1-106.  This statute provides: 

Any person who kills, or conspires with another to kill, or procures to be killed, any other person from whom the first named person would inherit the property, either real or personal, or any part of the property, belonging to the deceased person at the time of the deceased person's death, or who would take the property, or any part of the property, by will, deed, or otherwise, at the death of the deceased, shall forfeit all right in the property, and the property shall go as it would have gone under § 31-2-104, or by will, deed or other conveyance, as the case may be; provided, that this section shall not apply to any killing done by accident or in self-defense.

As a result, this statute basically forbids an individual from inheriting any property or recovering any life insurance proceeds from a deceased if that individual was responsible for killing that deceased. 

Premises Liability – Duty of possessor of real property to child trespassers

The Tennessee legislature recently addressed the duty of a possessor of real property to adult and child trespassers.  The legislature adopted Public Chapter No. 922 which was signed into law by Governor Bill Haslam on May 10, 2012.  This Act established T.C.A. § 29-34-208 and is effective on the date the bill was signed into law, May 10, 2012.  This post will address the portion of this bill that pertains to the responsibility of a possessor of real property to child trespassers.  Child trespassers are treated differently from adult trespassers in this statute.  A prior post addressed the duty for adult trespassers. 

The new T.C.A. § 29-34-208 (a), (c) & (d) provide as follows: 

(a) As used in this section:

(1) “Possessor of real property” means the owner, lessee, renter, or other lawful occupant of real property; and

(2) “Trespasser” means a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405--39-14-407.

…

(c) Notwithstanding subsection (b), a possessor of real property is subject to liability for physical injury or death to a child trespasser if:

(1) The possessor maintained a dangerous condition that was not a natural condition and the possessor knew or should have known the condition posed a risk of death or serious bodily harm to trespassing children;

(2) The possessor knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly use the property as a playground;

(3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the ri...

Premises Liability – Duty of possessor of real property to adult trespassers

Uninsured Motorist – Offset of uninsured motorist coverage with workers’ compensation benefits paid

Brief Summary:  Insurance policy language is important to determine if an insurance company is entitled to an offset of uninsured motorist coverage for workers compensation benefits paid.  If the policy contains non-specific offset language as opposed to “reduced by” language, then it must first prove that its payment would parallel a payment from another source before claiming an offset.  Generally, the uninsured motorist carrier is entitled to an offset from policy limits payable, rather than the judgment award, when it proves the total workers’ compensation offset and the UM policy limits, together, are greater than the judgment awarded to the insured.

Analysis:  The Tennessee Court of Appeals decided an interesting case which considered when an insurance company can claim an offset of uninsured motorist coverage by the amount of workers’ compensation benefits paid to its insured.  The Robert Mears v. Kendra M. Williams, W2011-02499-COA-R3-CV, 2012 WL 2832960 (filed July 11, 2012) decision addressed some long standing questions that had developed in light of the 2001 decision of State Farm Insurance Company v. Schubert, 2001 WL 584208 (Tenn. Ct. App. May 31, 2001).

In the Mears case the workers’ compensation payments totaled approximately $110,000.00.  The State Farm uninsured motorist policy limits were $250,000.00.  The total jury verdict at trial was $225,000.00.  As a result, the question was whether State Farm was entitled to an offset against plaintiff’s recovered damages for the loss or expense paid under workers’ compensation law or whether the offset should be applied to the amount of coverage payable under the uninsured motorist policy.  The State Farm uninsured motorist policy provision states:

Any loss or expense paid or payable under any workers’ compensation law, disability benefits law or any similar law will not be paid for again as damages under these (uninsured motorist) coverages. 

The trial court denied State Farm the ability to offset for the workers’ compensation benefits paid to the plaintiff from the policy limits.  The trial court relied on the Schubert deci...

Tennessee Tort Reform – T.C.A. § 29-39-103 requires the judge or jury to make specific findings for certain types of damages.

Brief Summary:  The Tennessee tort reform bill of 2011 requires the judge or jury to make specific findings for certain types of damages.  The trier of fact must provide a monetary value on the total amount of past and future: (1) medical bills; (2) economic damages; and (3) noneconomic damages.  As a result, there will be a minimum of six separate lines on the jury verdict form for damages in a personal injury cause of action.

Analysis:  T.C.A. § 29-39-103 was created by the 2011 Tennessee tort reform legislation and provides a requirement that the trier of fact (either the judge or the jury), must make separate findings for certain types of damages.  This requirement applies when “liability is found in a civil action” so it applied broadly to all civil actions.  This statute provides:  

(a) If liability is found in a civil action, then the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:

(1) Any past damages for each of the following types of damages:

(A) Medical and other costs of health care;

(B) Other economic damages; and

(C) Noneconomic damages; and

(2) Any future damages and the periods over which they will accrue, on an annual basis, for each of the following types of damages:

(A) Medical and other costs of health care;

(B) Other economic damages; and

(C) Noneconomic damages.

As a result, the trier of fact must specifically determine the total medical care costs for past and future damages. 

Tennessee Tort Reform – Exceptions to the punitive damages cap found in T.C.A. § 29-39-104

Brief Summary:  The Tennessee tort reform bill of 2011 added a punitive damages cap in T.C.A. § 29-39-104.  This cap has four exceptions.  These four exceptions are: (1) the defendant’s act is intentional; (2) the defendant intentionally concealed or falsified evidence; (3) the defendant was under the influence of drugs or alcohol; (4) the defendant was convicted of a felony (for the act that caused the injury).

Analysis:  I previously discussed the punitive damages cap found in T.C.A. § 29-39-104 that went into effect for all actions that accrue on or after October 1, 2011.  See punitive damages blog post.  This punitive damages cap also has specific exceptions found in the statute.  These exceptions operate to remove the cap put in place in this statute providing that punitive damages awards can not exceed two times the total amount of compensatory damages award or $500,000.00, whichever is greater.  Specifically, T.C.A. § 29-39-104(a)(7) provides: 

(7) The limitation on the amount of punitive damages imposed by subdivision (a)(5) shall not apply to actions brought for damages or an injury:

(A) If the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff;

(B) If the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue; provided, however, that this subsection (a) does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations; or

(C) If the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in the defendant's judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection (a), a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant, if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer;

(D) If the defendant's act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or u...

Tennessee Tort Reform – Punitive damage cap under T.C.A. § 29-39-104, State Farm v. Campbell and Flax v. DaimlerChrysler

The Tennessee tort reform bill passed in 2011 includes a new statute, T.C.A. § 29-39-104, that provides a punitive damages cap for Tennessee civil lawsuits.  It also provides for some exceptions to the punitive damages cap (this will be addressed in a later blog post).  This statute applies to "all liability actions for injuries, deaths, and losses covered by this act which accrue on or after” October 1, 2011.  The entire Tennessee tort reform bill can be found here: http://www.tn.gov/sos/acts/107/pub/pc0510.pdf. 

T.C.A. § 29-39-104 made many changes and clarifications to punitive damage law in Tennessee.  Today I will address the caps to punitive damage awards that were added.  T.C.A. § 29-39-104(a)(5) provides the following:

(5) Punitive or exemplary damages shall not exceed an amount equal to the greater of:

(A) Two (2) times the total amount of compensatory damages awarded; or

(B) Five hundred thousand dollars ($500,000);

As a result, there is a now a cap on punitive damages so the maximum punitive damages award can not exceed two times the total amount of compensatory damages award or $500,000.00, whichever is greater.  This cap provides much greater certainty for potential punitive damage awards under Tennessee law.  It provides defendants with a greater ability to assess the “worst case scenario” in a case and therefore make more informed decisions about whether to take a case to trial.

Prior to this change in the statute, there was guidance from the United States Supreme Court on the maximum amount of punitive damages that could be awarded.  The well known United Supreme Court case of State Farm v. Campbell, 123 S. Ct. 1513 (2003) discussed the upper limits of punitive damages awards that are allowed under the Due Process Clause of the United States Constitution.  The United States Supreme Court discussed various factors that are pertinent to determine the appropriate size of a punitive damages award when compared to the amount of compensatory damages.  The Court stated:  

Tennessee Premises Liability – Identification of cause of fall