insurancedefense

When is a Manufacturer of a Product Liable for an Injury Caused by the Product in Tennessee?

Under Tennessee law a manufacturer of a product is not liable for injuries caused by the product unless it is found to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer.  As a result, it can often be very important to determine exactly when the alleged defect occurred.  T.C.A. § 29-28-105(a) specifically provides as follows:

(a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.

The term “defective condition” is defined in this statute as, “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.”  T.C.A. § 29-28-102(2).  The term “unreasonably dangerous” is defined in T.C.A. § 29-28-102(8) as follows:

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

auto

If an Individual Passes Out While Driving a Vehicle in Tennessee, are they Responsible if they Cause an Accident?

The Tennessee Court of Appeals recently dealt with the question of the responsibility of an individual who becomes unconscious, while driving, causing an automobile accident.  The Tennessee Court of Appeals in George Smith v. General Tire and Emily Alexander, No. M2012-01446-COA-R3-CV, 2013 WL 2395047 (Tenn. Ct. App. 2013) involved a case where a man was injured in a head-on collision.  The unconscious defendant in this case testified she did not remember anything on the day of the accident from the point she came to a red light on Gallatin Road until she woke up in an ambulance on the way to the hospital.  She had a long history of diabetes but she had never experienced a loss of consciousness prior to the accident in question.  Additionally, she had never been advised by her physician that she should not drive a vehicle.  Her treating physician testified her blood sugar level must have dropped too quickly for her to realize before she became unconscious.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

medicalmalpractice

Medical Malpractice – Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

The Tennessee Court of Appeals recently decided an important issue that comes up often in medical malpractice (health care liability) cause of actions in Tennessee.  The case of Cheryl Hall v. James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987 (Tenn. Ct. App. 2014) dealt with a situation where the plaintiff sued the Jackson Clinic under a vicarious liability theory for the actions of one of its physicians.  The plaintiff then desired to take the depositions of two employee physician shareholders of the Jackson Clinic who were also medical doctors that treated the plaintiff.  The Jackson Clinic filed a motion asking the trial court for permission to meet ex-parte with these doctors (who were employees of the defendant Jackson Clinic) to discuss matters relevant to the case including the treatment of the decedent.  They wanted to meet with them prior to their depositions so they could properly prepare them for their testimony.  The trial court denied allowing the ex-parte meeting between Jackson Clinic defense counsel and the physicians who were employed by the Jackson Clinic based on the Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will

In Tennessee How Much Does it Cost to Have a Will Drafted?

One of the most frequent questions I am asked is “How much does it cost to have an attorney draft a will in Tennessee?”  People often believe that obtaining necessary and important documents such as a Will, Power of Attorney, Healthcare Power of Attorney and Living Will is a very expensive and complicated process.  This is absolutely not true!  Many people are surprised when I tell them the actual cost of having these documents prepared.  With this in mind, I have decided to share my pricing for these documents so that people can be properly informed on the actual costs to have an estate planning package drafted by an attorney.  The cost is very insignificant when compared to the importance of having your final affairs in order.

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

will

How Should you Respond to a Request to Waive Bond, Inventory and Accounting in a Tennessee Estate?

Sometimes when a Tennessee probate estate is opened up, the attorney handling the estate will provide a request to the beneficiaries to waive bond, inventory and accounting [“Bond” is basically an insurance bond to protect the assets of the estate if there is a failure by the executor.  “Inventory and Accounting” are required reports to beneficiaries and the court on the financial status of the estate].  This may be unnecessary in some circumstances if it is actually already waived in the will by the decedent.  However, sometimes wills do not include this language.  Or, many individuals die intestate (without a will).  I often get asked by beneficiaries who receive a request to waive bond, inventory and accounting as to whether they should agree to this request.  When I personally handle estates as the estate attorney I also send out these same letters to beneficiaries on many occasions.

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

employmentlaw

Tennessee Passes “Employee Online Privacy Act of 2014” Preventing Employers from Obtaining Access to Personal Internet Accounts Like Facebook

The Tennessee Legislature recently passed the Employee Online Privacy Act of 2014.  This is found in 2014 Public Chapter 826.  This new statute will be found at T.C.A. § 50-1-1001 et seq. and takes effect on January 1, 2015.  This new statute basically prevents an employer from taking any adverse employment action against an employee for failure to provide access to a “personal internet account” (which basically includes any type of internet account).  “Personal internet account” is defined as follows:

(5) “Personal Internet account”:
(A) Means an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electronic medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles; and
(B) Does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

 

auto

New Tennessee Law Clarifies that Red Light Violation Does Not Occur When Vehicle’s Front Tires Have Entered Intersection When Light Turns Red

In the 2014 Tennessee Legislative session the Tennessee Legislature decided to clarify exactly what constitutes a red light violation in Tennessee.  The legislature amended T.C.A. § 55-8-110 which is the statute that discusses what traffic control signals mean for an intersection.  It defines and explains the meaning of the “green”, “yellow”, and “red” notifications on traffic signal devices.  The Tennessee Legislature passed Public Chapter No. 989 that added a new subsection (e) to T.C.A. § 55-8-110 as follows:

(e) It is not a violation of subdivision (a)(3), unless the front tires of a vehicle cross the stop line after the signal is red.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

productsliability

Tennessee Supreme Court Clarifies Way to Determine Applicable Statute of Limitations for a Case

The Tennessee Supreme Court in Brenda Benz-Elliott v. Barrett Enterprises, LP, No. M2013-00270-SC-R11-CV, 2015 WL 294635 (Tenn. 2015) has provided an opinion that attempts to clarify how statute of limitations should be applied for Tennessee cases.  Over the years numerous Tennessee appellate decisions have cited the “gravaman of the complaint” rule in order to determine which statute of limitations applies to a case.  (Benz-Elliott at 7, 8).  In this case, the Tennessee Supreme Court noted that defining exactly what this actually means has proven difficult over time.  If you desire to read a detailed analysis of the historical citations to this rule and the general “fuzziness” in the actual application of this rule, this case provides a lengthy discussion of these issues.  For the purposes of this blog post, however, I am mainly going to address the ultimate conclusion of the Tennessee Supreme Court that is an attempt to clarify confusing pre-existing precedent.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

medicalmalpractice

Tennessee Supreme Court Decides Failure to Satisfy Pre-Suit Notice Requirements for Healthcare Liability Action Results in Dismissal Without Prejudice

A recent Tennessee Supreme Court decision, Samuel E. Foster v. Walter William Chiles, III, M.D., et al., No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. 2015), decided the appropriate remedy for non-compliance with pre-suit notice requirements in T.C.A. § 29-26-121 for a healthcare liability action under Tennessee law.  Specifically, T.C.A. § 29-26-121(a)(1) provides the following requirements:

(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.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

workerscompensation

Can an unrepresented employee have a workers’ compensation settlement approved by affidavit for injuries which occurred on July 1, 2014 or subsequently in Tennessee?

In the past courts in the State of Tennessee approved settlements of employees who were not represented by affidavit.  This is especially true for those claims in which the claimant was receiving an award which approximated the value of the claim and the employee retained the right to open medical treatment per the terms and conditions of the Tennessee Workers’ Compensation Act.  For injuries which occurred on July 1, 2014 or subsequently, however, the legislature has created a new statute which precludes this.

More specifically, Tennessee Code Annotated § 50-6-240 states, “in approving settlements, a workers’ compensation judge shall consider all pertinent factors and if the injured employee is not represented by counsel, then the workers’ compensation judge shall thoroughly inform the employee of the scope of benefits available under this chapter and the employee’s rights and the procedures necessary to protect those rights.

When this was first drafted it seemed the administrative law judges may handle settlements of this type telephonically.  Based upon representations made by the Department of Labor, they are not going to handle settlements of this type in this fashion at the outset.  As a result, if the injured employee is not represented by counsel then that employee will need to present to the Tennessee Department of Labor for approval of his/her workers’ compensation settlement.