Motion to Dismiss - Tennessee's new "loser pays" law … that isn’t

Brief Summary:  The new “loser pays” law in Tennessee provides very limited circumstances where the “loser” plaintiff actually is required to pay for the attorney’s fees and costs of the defendant.  Generally, this new law only applies to Rule 12.02(6) motions to dismiss for failure to state a claim upon which relief may be granted.  Even when a Rule 12.02(6) motion to dismiss is granted, there are many exceptions to this requirement.

Analysis:  The Tennessee legislature adopted Public Chapter No. 1046 which was signed into law by Governor Bill Haslam on May 21, 2012.  This law applies to all claims filed on or after July 1, 2012.  As a result, this “loser pays” law is currently in effect for all new claims filed in Tennessee.  This law is effectively a “loser pays” statute but is has many exceptions and is very limited in scope.  The new bill added T.C.A. § 20-12-119(c).  The key operative portion of this “loser pays” statute is subsection (c)(1) which provides as follows:

(c)(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney's fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties. The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.

As a result, attorney’s fees and costs “shall” be paid by the party who brought the claims that are dismissed under Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be granted.  This requirement is mandatory, unless one of the many exceptions applies.

Subsection (c)(3) provides that the

Tennessee Product Liability Actions – The 2011 Tennessee tort reform bill changed product liability actions against sellers in Tennessee.

Brief Summary:  The new statutory language adopted in Tennessee for product liability actions found in the Tennessee tort reform bill of 2011 changed the circumstances where a seller can be found liable for selling a defective product.  This statute made it more difficult for a plaintiff to recover damages against a seller of a defective product in a product liability action.

Analysis:  The Tennessee tort reform bill of 2011 completely replaced the old T.C.A. § 29-28-106 with new statutory language that is more favorable to sellers in product liability actions.  This statute governs when a product liability action can be maintained against a seller, other than the manufacturer, in Tennessee.  The new T.C.A. § 29-28-106 provides as follows:

No product liability action, as defined in § 29-28-102, shall be commenced or maintained against any seller, other than the manufacturer, unless:

(1) The seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the alleged harm for which recovery of damages is sought;

(2) Altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought;

(3) The seller gave an express warranty as defined by title 47, chapter 2;

(4) The manufacturer or distributor of the product or part in question is not subject to service of process in this state and the long-arm statutes of Tennessee do not serve as the basis for obtaining service of process; or

(5) The manufacturer has been judicially declared insolvent.

It went into effect in Tennessee with the adoption of Public Chapter No. 510 and it applies to all actions that accrue on or after October 1, 2011.  This statute changed the circumstances when a seller...

Tennessee Statutes of Limitation – Statutes of Limitation for Common Tennessee Causes of Action

This post will address the statutes of limitation for several common Tennessee causes of action.  I will also provide the Tennessee statute that is the source for the statutes of limitation for each cause of action.  

It must be noted that fact specific inquiries need to be completed for each and every case.  Each case could have specific facts that could impact whether the statute of limitations bars a particular claim.  The “discovery rule” is one doctrine that has been applied to some Tennessee causes of action.  The Tennessee Supreme Court has found the discovery rule “provides that the statute of limitations begins to run when the injury is discovered, or in the exercise of reasonable care and diligence, the injury should have been discovered. The rule responds to the unfairness of requiring that he [a plaintiff] sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.”  Quality Auto Parts v. Bluff City Buick, 876 S.W.2d. 818, 820 (Tenn. 1994).  There are other potential exceptions to Tennessee statutes of limitation including exceptions for minors or those deemed incompetent under certain circumstances.  See T.C.A. § 28-1-106.

The causes of action and the Tennessee statute of limitation for each are as follows:

1.          Slander - "within six (6) months after the words are uttered."  (See T.C.A. § 28-3-103)

2.          Civil actions for compensatory or punitive damages brought under the Federal Civil Rights statutes - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(3))

3.          False Imprisonment - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(1))

Tennessee Tort Reform - When can punitive damages be awarded in Tennessee under T.C.A. § 29-39-104?

Brief Summary:  Under the Tennessee tort reform bill of 2011, the legislature provided specific requirements for the assessment of punitive damages in Tennessee.  Many of these requirements were present in pre-existing case law but some of them are new.  The main impact of this statute, T.C.A. § 29-39-104, is it codified case law requirements for punitive damage awards.

Analysis:  The Tennessee tort reform bill of 2011 provided a new statute that provided specific rules for when punitive damages can be assessed in civil actions in Tennessee.  T.C.A. § 29-39-104 outlines the requirements for a punitive damages award under Tennessee law.  This statute is only in effect for causes of actions that accrue on or after October 1, 2011.  T.C.A. § 29-39-104(a)(1) provides as follows: 

(a) In a civil action in which punitive damages are sought:

(1) Punitive damages may only be awarded if the claimant proves by clear and convincing evidence that the defendant against whom punitive damages are sought acted maliciously, intentionally, fraudulently or recklessly;

This statute is broad because it is intended to apply to all civil actions where punitive damages are assessed.  This opening section of the statute sets out the first threshold identifying when punitive damages can be assessed.  The jury or judge must find that the defendant acted "maliciously, intentionally, fraudulently, or recklessly."  Further, this must be proved by “clear and convincing evidence”.  The Tennessee Supreme Court held in Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992) in footnote #3 that "clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence."

T.C.A. § 29-39-104(a)(2) provides more requirements for a punitive damages award.  This se...

Tennessee Dram Shop Law - When can a bar, retailer or restaurant be found liable for accident caused by intoxicated individual under Tennessee Law?

In 1986, the Tennessee legislature created T.C.A. § 57-10-101 and T.C.A. § 57-10-102 in order to provide a statutory scheme for Tennessee Dram Shop liability.  These two statutes define when a bar, retailer or restaurant can be found responsible for selling alcohol to an individual that later causes injuries or death to another person while intoxicated from that alcohol.  You may wonder why it is called “dram shop” law.  “Dram shop laws are named after establishments in 18th Century England that sold gin by the spoonful (called a "dram").”  Quote from Findlaw article found here.

T.C.A. § 57-10-101 provides as follows:

The general assembly hereby finds and declares that the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.

As a result, in Tennessee the general rule is that, bars, retailers and restaurants can not be found responsible to third-parties for damages caused by an intoxicated individual for alcohol served or sold to that person.  However, T.C.A. § 57-10-102 provides some exceptions to this rule that need to be carefully considered. 

T.C.A. § 57-10-102 provides as follows:

Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

Motorcycle Operator Liability – It is a violation of Tennessee law if passenger child's feet are not on footpegs of motorcycle.

The Tennessee legislature recently adopted Public Chapter No. 907 which was signed into law by Governor Bill Haslam on May 10, 2012.  This bill amended T.C.A. § 55-8-164 to add a new subsection (e).  This addition to the statute makes it a Class C misdemeanor in the State of Tennessee when an operator of a motorcycle carries a child whose feet are not on the footpegs of the motorcycle. 

T.C.A. § 55-8-164 provides as follows (the section added by this amendment is in bold):

(a) A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator shall not carry any other person, nor shall any other person ride on a motorcycle, unless the motorcycle is designed to carry more than one (1) person, in which event a passenger may ride upon the permanent and regular seat if designed for two (2) persons, or upon another seat firmly attached to the rear or side of the operator.

(b) A person shall ride upon a motorcycle only while sitting astride the seat, headlamp illuminated, facing forward, with one (1) leg on each side of the motorcycle.

(c) No person shall operate a motorcycle while carrying any package, bundle, or other article which prevents the person from keeping both hands on the handlebars.

(d) No operator shall carry any person, nor shall any person ride, in a position that will interfere with the operation or control of the motorcycle or the view of the operator.

(e)(1) An operator commits an offense who, on the streets of any municipality, roads of any county, or the highways of this state, carries a child as a passenger on a motorcycle whose feet are not on footpegs.  Provided, the provisions of this subsection shall not apply to persons riding in a motorcycle sidecar. 

(2)(A) A violation of this subsection is a Class C misdemeanor…

This amendment to the bill provides a potential basis for liability when an operator of a motorcycle carries a child who is not tall enough to reach the footpegs.  In fact, this statute does not even limit the violation to circumstances where an individual is unable to reach the footpegs.  Rather the motorcycle operator can be cited simply when the child’s feet are not on the footpegs.  Thi...

Comparative Fault - When can a minor child be found comparatively at fault or negligent under Tennessee law?

Brief Summary:  This new Tennessee Court of Appeals decision addresses the "Rule of Sevens" or "Rule of Capacity" to determine when a minor can be found negligent or comparatively at fault.  Under Tennessee Law a minor child under the age of seven is not capable of negligence.  There is a rebuttable presumption that a minor between the ages of seven and fourteen does not have the capacity for negligence.   There is a rebuttable presumption that a minor between the ages of fourteen and eighteen does have the capacity for negligence.

Analysis:  The recent Tennessee Court of Appeals decision of Ulysses Durham, Jr. v. John Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296 (Tenn.Ct.App. July 25, 2012) discussed when a minor child can be found responsible for negligence under Tennessee law.  In this case, an eleven year old boy was struck by a school bus while riding his bicycle.  There was a dispute as to who was at fault, the bus driver or the minor child who was riding his bike.  The trial court assessed 58% of the fault for the accident to the minor child and 42% to the school bus driver.  The plaintiffs appealed and argued that 58% of the fault could not be assessed to an eleven year minor child under Tennessee law.

Tennessee courts have developed the "Rule of Sevens" or "Rule of Capacity" to determine when a minor can be found responsible for negligence.  This rule has three presumptions pertaining to the responsibility of a minor.  The first presumption is that "a child under the age of seven has no capacity for negligence."  Durham at p. 3.  Second, "there is a rebuttable presumption that a child between the ages of seven and fourteen does not have the capacity for negligence."  Durham at p. 3.  Third, "there is a rebuttable presumption of capacity for negligence for a child between the ages of fourteen and twenty-one."  Durham at p. 3.  It is important to note that the Tennessee Legal Responsibility Act of 1971 codified in T.C.A. § 1-3-113 lowered the age of majority from 21 to 18 therefor...

First Responder Immunity – New Tennessee statute T.C.A. § 29-34-208 provides immunity to first responders for forcible entry into home or business

On April 27, 2012, a new law was adopted in Tennessee by Public Chapter No. 844 that provides civil liability immunity to “first responders” under certain circumstances.  This new law is called “Jaclyn’s Law” and can be found in T.C.A. § 29-34-203.  This statute provides immunity to first responders from civil liability for forcible entry into a home, business or other structure under specific circumstances specified in the statute.  T.C.A. § 29-34-203 provides as follows: 

(a) As used in this section, “first responder” means a law-enforcement officer, firefighter, emergency services personnel or other person who responds to calls for emergency assistance from a 911 call.

(b) A first responder and the responder's supervisor, agency, employer or supervising entity is immune from civil liability resulting from a forcible entry of a home, business or other structure if the first responder:

(1) Is responding to a documented 911 call for emergency assistance;

(2) Has made reasonable efforts to summon an occupant of the home, business, or structure that made the call by knocking or otherwise notifying the occupant of the first responder's presence;

(3) Has not received a response from an occupant within a reasonable period of time after making reasonable efforts pursuant to subdivision (b)(2); and

(4) Has a good faith belief that it is necessary to make a forcible entry for the purposes of rendering emergency assistance or preventing imminent bodily harm.

(c) Nothing in this section shall affect the standard of care a first responder must employ when rendering aid after gaining entry.

The reason this law was passed in Tennessee was due to an individual by the name of Jaclyn Alden who was at her home when she called 911 due to an emergency.  She could not make it to the door to let the emergency responders into her house.  As a result, the emergency responders left the house because there was no response.  M...

Tennessee Medical Malpractice – Excuse for noncompliance with pre-suit notice requirements in T.C.A. § 29-26-121

Brief Summary:  T.C.A. § 29-26-121 provides strict pre-suit notice requirements for medical malpractice/healthcare liability causes of action.  However, this statute provides an exception which allows the court to "excuse compliance with this section only for extraordinary cause shown."  This new Tennessee Court of Appeals decision implies that an attorney's deployment to Afghanistan as a soldier could provide an excuse for noncompliance under the “extraordinary cause" exception.

Analysis:  The Tennessee Court of Appeals has addressed the new pre-suit notice requirements for Tennessee medical malpractice/healthcare liability causes on several occasions.  T.C.A. § 29-26-121 provides the following requirement for pre-suit notice before filing a medical malpractice/healthcare liability action:

(a)(1) Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.

(2) The notice shall include:

(A) The full name and date of birth of the patient whose treatment is at issue;

(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The r...

Insurance Policy – Knowledge of individual signing insurance application

Brief Summary:  T.C.A. § 56-7-135 is a new Tennessee statute that provides a rebuttable presumption that any applicant or party to an insurance contract or application expresses understanding and accepts all the terms of the contract with the signature.  Further, the signature creates a rebuttable presumption that all insureds have accepted and understood the terms of the insurance contract.

Analysis:  The Tennessee legislature adopted a new statute governing the knowledge of an individual who signs an insurance application or contract.  T.C.A. § 56-7-135 was adopted by Public Chapter No. 913 and was signed by Governor Bill Haslam on May 10, 2012 (the effective date of the statute).  T.C.A. § 56-7-135 provides as follows: 

(a) The signature of an applicant for or party to an insurance contract on an application, amendment, or other document stating the type, amount, or terms and conditions of coverage, shall create a rebuttable presumption that the statements provided by the person bind all insureds under the contract and that the person signing such document has read, understands, and accepts the contents of such document.

(b) The payment of premium for an insurance contract, or amendment thereto, by an insured shall create a rebuttable presumption that the coverage provided has been accepted by all insureds under the contract.

As a result, this bill creates a rebuttable presumption that by signing an application, amendment or other insurance document:

            1) The statements provided by the signor are binding on all insureds;

            2) The person signing the document has read the documen...