employmentlaw

Tennessee Caps on Damages for Sexual Harassment Cases

Tennessee sexual harassment cases that are brought against an employer are governed by the Tennessee Human Rights Act. The underlying basis for claims against an employer for sexual harassment fall under the provision in T.C.A. § 4-21-401 that provides that it is a discriminatory practice for an employer to “fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, creed, color, religion, sex, age or national origin…”. Sexual harassment cases fall within this section and I have previously discussed the Tennessee law standard for a sexual harassment case in my prior blog post here.

It is important to note that there are specific caps on damages for Tennessee sexual harassment claims (as well as other discriminatory causes of action brought against employers under the Tennessee Human Rights Act).

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

workerscompensation

Court Awards Attorney’s Fees Against Employer/Insurer for Failure to Timely Initiate Benefits

In Thompson v. Comcast Corp., et al, 2017-05-0639, State File No. 63224-2016 (filed January 30, 2018) the Court awarded attorney’s fees when an employer/insurer failed to timely initiate benefits. To gain insight on how the Court reached it’s determination it is important to consider the factual circumstances.

During the course of the litigation and through the Expedited Hearing, wherein attorney’s fees were awarded, numerous disputes arose. The claimant was treated by Dr. James Johnson who gave the opinion the claimant sustained a herniated disc. Dr. Johnson also gave the opinion this condition/injury was primarily caused by the injury which was the subject of the claim. Subsequently, Dr. Johnson indicated the claimant had a disc bulge and there were inconsistencies which ultimately prompted Dr. Johnson’s deposition.

Prior to Dr. Johnson’s deposition the doctor referred the claimant to pain management which was refused by the employer. Prior to the deposition of Dr. Johnson, the claimant’s attorney obtained a letter from Dr. Johnson which indicated the claimant’s need for treatment arose primarily out of the injury which was the subject of the claim and a referral for pain management was reasonable and medically necessary as a result of the work injury.

The deposition of Dr. Johnson took place. He testified the claimant sustained a compensable injury, had an anatomical impairment rating and needed pain management all as associated with the work injury. Despite this the employer still refused the claimant a pain management panel. Immediately prior to the Expedited Hearing the employer offered the claimant a panel of pain management physicians from which the employee could choose a doctor for a one time evaluation. This was refused. It was asserted by the claimant’s attorney that this was not in compliance with statute.

The Trial Court found the claimant would have the opportunity to choose his own pain management physician, indicated the claimant was entitled to medical care as referenced, asserted the employer had wrongfully failed to initiate benefits and, as a result, awarded reasonable attorney’s fees (not determined at that time) and referred the claim to the penalty unit for further investigation.

The matter was appealed. On appeal the Appellate Court determined the claimant had not developed a patient/physician relationship with any physician and could not, therefore, choose his own physician. The claimant had to choose a pain management physician from a panel to be provided.

The main issue within the appeal, however, was associated with the attorney’s fees. The Appellate Court interpreted T.C.A. § 50-6-226(d)(1) which states in pertinent part:

[T]he court of workers’ compensation claims may award reasonable attorneys’ fees and reasonable costs, including reasonable and necessary court reporter expenses and expert witness fees, for depositions and trials incurred when the employer:

. . . .

(B) Wrongfully denies a claim by filing a timely notice of denial, or fails to timely initiate any of the benefits to which the employee is entitled under this chapter, including medical benefits under § 50-6-204 or temporary or permanent benefits under § 50-6-207, if the workers’ compensation judge makes a finding that such benefits were owed at an expedited hearing or compensation hearing.

The Appellate Court addressed the fact the Trial Court concluded that the employer had “wrongfully denied” the claimant’s right to pain management. As a result, the Appellate Court basically had to two tasks. Those tasks were to interpret the statute and to further address whether or not it was appropriate to award attorney’s fees under at Expedited Hearing level.

With respect to the interpretation of the statute, the Court determined the statute provided two circumstances under which attorney’s fees could be awarded. Those were:

1. When the employer/insurer, “wrongfully denies a claim by filing a timely notice of denial;” or

2. Fails to timely initiate any of the benefits to the employee is entitled under this Chapter. . .

The Appellate Court indicated the two phrases referenced were separated by a comma and the word “or.” As a result, the Court determined there were two circumstances in which attorney’s fees could be awarded. The Appellate Court determined:

Thus, we conclude that the word ‘wrongfully’ modifies only the first phrase. An employer can be held liable for reasonable attorney’s fees and costs when it ‘fails to timely initiate any of the benefits to which the employee is entitled under this chapter.’

In essence, the Appellate Court determined that when the failure to initiate the benefits is wrong (as determined by the Court) and (as in this case) the basis of the failure to initiate benefits is sufficiently egregious, the Workers’ Compensation Claims Court “may” award attorney’s fees. To reach this conclusion, however, the Court pointed out the numerous failures of the employer/insurer in initiating benefits. The Court noted:

Parties and their lawyers cannot rely on their own medical interpretations of the evidence to successfully support their arguments, and they face significant risk if they choose to do so.

As such, we conclude this case exemplifies one of the extreme limited set of circumstances where an award of reasonable attorneys’ fees and costs is appropriate at this interlocutory stage of the case. Regardless of the ultimate resolution of the case, employee’s entitlement to a panel of pain management specialists as recommended by the authorized treating physician, and the employer’s five month refusal to offer such a panel will not change. Moreover, the work employee’s attorney undertook to secure that panel will not change. Had employer taken one or more of the actions described above to support its denial of a panel, such action or actions may have mitigated against an award of attorneys’ fees and costs at this interlocutory stage of the case.

Comment: Since the inception of the modification to the Workers’ Compensation Act many employees have had to proceed pro se as there was limited monetary incentive for attorneys to represent the employee. Many Judges have been of the opinion this has been a significant shortcoming in the changes in the law. Based upon a comment made by Judge Hensley in the Dissenting Opinion I am of the opinion the ruling in the Thompson decision, in part, was to modify the potential fee issue and provide some incentive for attorneys to again become involved. With respect to this Judge Hensley indicated:

I am not unmindful of the benefits of a policy to facilitate and encourage attorneys to undertake the representation of injured workers. Indeed, such a policy promotes and adheres to the Workers’ Compensation Act’s purpose of securing benefits to those workers who fall within its coverage.

It is worth noting this decision was only recently rendered. There may still be additional appellate consideration to this issue. Either party may appeal this to the Supreme Court and that Court, at its discretion, may accept further consideration of the issues in contention in this matter.

productsliability

Tennessee Tort of “Intentional Infliction of Emotional Distress”

Tennessee has the tort of Intentional Infliction of Emotional Distress which is an important cause of action that allows a plaintiff to recover damages when the conduct of the defendant is outrageous. There are very specific requirements for a plaintiff to be able to prove this cause of action in court. In order to support a claim for Intentional Infliction of Emotional Distress, the Tennessee Supreme Court has held that the following elements are required:

The elements of an intentional infliction of emotional distress claim are that the defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff. Regarding the first element, the law is clear in Tennessee and elsewhere that either intentional or reckless conduct on the part of the defendant will suffice to establish intentional infliction of emotional distress.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

insurancedefense

Tennessee Supreme Court Overturns COA Dedmon case – Key Decision for Personal Injury cases on Medical Bill Evidence

The Tennessee Supreme Court issued a very important decision recently on the appeal in the Dedmon case.  Many people have been waiting on this decision from the plaintiff’s side and the defendant’s side.  The Dedmon case was the case where the Tennessee Court of Appeals ruled that defendants, in personal injury cases, could introduce evidence of the discounted amounts accepted by health providers or paid by insurance companies.  I previously blogged on this prior ruling here.

The Tennessee Supreme Court reversed the key part of the prior Tennessee Court of Appeals decision today.  The key part in the new case (and a good summary of the current status of the law on this issue) is the following:

In sum, we hold that the definition of “reasonable charges” under the Hospital Lien Act set forth in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), does not apply directly to determinations of “reasonable medical expenses” in personal injury cases; the West definition of “reasonable charges” is limited in application to interpretation of the Hospital Lien Act……

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will

Impact of Divorce on Terms in a Will that Benefit the Former Spouse in Tennessee

When a Will is executed by someone, and then they are later divorced, the divorce revokes any benefits that were going to go to the former spouse under the Will.  This revocation is automatic and by statute that was passed by the Tennessee legislature.  T.C.A. § 32-1-202(a) provides as follows:

(a) If after executing a will the testator is divorced or the testator’s marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.

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

productsliability

Sexual Harassment and Sexually Hostile Work Environment Claims in Tennessee – General Overview

Sexual Harassment and Sexually Hostile Work Environment claims are both recognized in Tennessee under state law and federal Law (pursuant to Title VII).  These are very significant claims often involving the harassment of a female by a male supervisor or co-worker.  The standards for an employer’s liability are different under each of those scenarios (this will be discussed in a subsequent blog post on this topic).  It is important to note that Tennessee courts often look to federal law for guidance on interpretation of Tennessee’s own discrimination statutes, because they are so similar.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will

Should You Add Your Children to Your Financial Accounts When You Need Financial Assistance Later in Life?

A significant number of older individuals in Tennessee add one or more of their children to their bank accounts to help them manage their finances. They often do this as joint owners with right of survivorship in order to have them help to pay the bills and to take care of other matters late in life. This can be an option that sounds very appealing. However, doing this is a major problem and can cause devastating financial consequences that are completely unintended.

When someone adds another person as a joint owner on the account, any judgments that the other person obtains against them, could lead to collection efforts against your bank account. Once the other person is an owner, they are an owner of your account for all purposes. For instance, if one of your children gets into a serious car accident and severely injures or kills someone else, but they have insufficient insurance coverage to pay for the damages, then the injured party could obtain a judgment against them. They could then execute against your account to pay the judgment.

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

insurancedefense

There is No Claim for Negligent Infliction of Emotional Distress on Solely Property Damage Loss Cases in Tennessee

The Tennessee Court of Appeals in Richard Lane, et al v. Estate of Gary K. Leggett, No. M2016-00448-COA-R3-CV, 2017 WL 1176982 (Tenn. Ct. App. 2017) discussed whether a Plaintiff can recover for Negligent Infliction of Emotional Distress for a claim that involves only property damage. In this case, the Plaintiff owned a business in White House, Tennessee. The Defendant rear-ended a vehicle and left the roadway at a high rate of speed, causing his car to run into the building that contained the Plaintiff’s business. The vehicle struck a gas meter which resulted in a significant fire and caused a complete loss of the Plaintiff’s business. The Plaintiff was not actually at the property at the time of the loss, but he returned shortly thereafter and witnessed the fire at his business.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will

Can an Appointed Executor Contest the Will They Offered For Probate in Tennessee?

A really interesting question was addressed by the Tennessee Court of Appeals recently on whether an executor who submitted a Will for probate and was appointed as executor can subsequently contest the terms of the Will. The Tennessee Court of Appeals in the case of In Re: Estate of Ellra Donald Bostic, No. E2016-00553-COA-R3-CV, 2016 WL 7105213 (Tenn. Ct. App. 2016) dealt with the specific question of whether an appointed executor can contest the Will that is being probated.

The Court noted that the legal doctrine that applies is “estoppel”. The reason is because “executors, as fiduciaries, owe a duty of undivided loyalty to the Estate and must deal with the beneficiaries in the utmost good faith.” In re: Estate of Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992).

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

productsliability

Piercing the Corporate Veil in Tennessee – When Can a Judgment Against a Corporation be the Personal Responsibility of the Shareholders?

The Tennessee Court of Appeals recently decided a case (F&M Marketing Services, Inc. v. Christenberry Trucking and Farm, Inc., E2016-00205-COA-R3-CV, 2017 WL 417223_(Tenn. Ct. App. 2017)) involving a request to pierce the corporate veil of a Defendant after the Plaintiff got a substantial judgment against that Defendant for breach of contract. The total judgment in this case was $375,524.29. After the initial judgment was entered, the Plaintiff learned that the Defendant had no assets to satisfy the judgment. As a result, the Plaintiff petitioned the trial to hold the primary shareholder of the Defendant personally liable for the judgment against the Defendant corporation. The Tennessee Court of Appeals did a good job discussing the circumstances when an individual shareholder can be found personally responsible for a judgment against a corporation in Tennessee.

The Court noted that the most important case outlining when it is appropriate to pierce the corporate veil in Tennessee is the FDIC v. Allen, 584 F. Supp. 386 (E.D. Tenn. 1984) decision.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE