TAM-BYTES February 18, 2013 Vol. 16, No.

7
2013 CLE CALENDAR

Onsite Event
Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal

Audio Conferences
Tennessee Workers Compensation Update: Recent Cases and New Laws, 60minute webinar presented by Fred Baker, with Wimberly Lawson Wright Daves & Jones PLLC, on Wednesday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). New Tax Law in Tennessee: How State and Federal Changes Affect Estate Planning, 60-minute audio conference presented by Harlan Dodson, with Dodson, Parker, Behm & Capparella PC, on Thursday, February 28 at 10 a.m. (Central), 11 a.m. (Eastern). QDROs: Dividing Retirement Plans in Tennessee Divorces, 60-minute webinar presented by James D. Helton II, Brentwood attorney, on Thursday, February 28 at 2 p.m. (Central), 3 p.m. (Eastern). Technology Trends and Social Media: Court Decisions, Legal Implications, and More, 60-minute webinar presented by Chuck Young, in-house attorney for Babcock & Wilcox Technical Services Y-12 LLC in Oak Ridge, on Thursday, March 14 at 10 a.m. (Central), 11 a.m. (Eastern). Child Custody in Tennessee: Recent Developments and Legislative Changes, 60-minute audio conference presented by Kevin Shepherd, Maryville attorney, on Wednesday, March 20 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register for any of our CLE events, call (800) 274-6774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes *Court of Appeals affirms dismissal of tort suit against county and cleaning company contractor on behalf of employee, who worked for school and later contractor and was exposed to mold that allegedly caused her to suffer from mycotoxin poisoning leading to her death, based on exclusivity of remedy provision of workers compensation law; *Court of Appeals holds hospital, having received payment from injured parties insurance companies in amounts specified in hospital services agreements, agreed to extinguish patients debt and may not assert lien under Hospital Lien Act against injured parties recovery from any third party tort-feasor; *Court of Appeals rules trial court lacked jurisdiction to consider post-trial dispute between party to personal injury case and partys former counsel; and * In second degree murder case, Court of Criminal Appeals rules trial court did not abuse discretion in discharging juror who said that she did not know whether she could weigh testimony of police officers same as other witnesses because she and her husband had recently been involved in incident with police that undermined her confidence in some of police officers.

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees job duties caused compensable advancement of her pre-existing rheumatoid arthritis when doctor testified that all of employees arthritic problems were most likely present before she came to work for employer, although doctor stated that her work activities did not progress her condition, he also said those activities made it more symptomatic and painful, doctor testified that those activities advanced her condition in terms of pain, swelling and other difficulties, although he found no swelling during his examination and did not specify what other difficulties to which he was referring, and he nevertheless provided anatomical explanation for increase in employees symptoms during her tenure with employer, stating that repetitive hand motion irritated her pre-existing rheumatoid arthritis, resulting in bleeding into joint, which in turn caused increased pain and stiffness. Vawter v. Volunteer Management Development, 2/13/13, Jackson, Parish, 7 pages.
http://www.tncourts.gov/sites/default/files/vawterlopn.pdf

COURT OF APPEALS TORTS: When malfunction with HVAC system in 1998 at Westview High School in Weakley County caused vast amounts of water to infiltrate premises, water remained undisclosed and undisturbed for weeks, when condition was discovered, there was slime-like layer of mold and mildew growing on vent covers, walls, floors, ceilings, library books, chairs, desks and other fixtures, County initially attempted to remediate problem with fans and janitorial efforts, County then retained restoration company that estimated cost to remediate mold problem and eliminate source of water intrusion would be nearly $1.3 million, County did not engage anyone to perform extensive remediation recommended by restoration company, in years after 1998 malfunction, decedent and her janitorial co-workers were required to work in close proximity to mold by disinfecting and wiping visible mold spores on walls and by replacing any discolored ceiling titles, at some point after 2000, County contracted out its cleaning and janitorial services to third party, decedent became employed by contractor, decedent routinely cleaned up mold and mildew until she ceased working around 10/30/10, decedent was admitted to hospital on 11/3/10 and was informed that she had pneumonia, she died at nursing home on 1/19/11, and decedents daughters filed suit against county and cleaning company contractor alleging that decedents mold exposure at school caused her to suffer from mycotoxin poisoning and that such condition ultimately led to her death, trial court properly granted both defendants motions to dismiss on ground that tort claims were barred by exclusive remedy provision of workers compensation law; in absence of actual intent to injure within meaning of intentional tort exception, plaintiff is limited to his or her workers compensation remedies. Rodgers v. GCA Services Group Inc., 2/13/13, WS, Highers, 15 pages.
http://www.tncourts.gov/sites/default/files/rodgersceliamoodyopn.pdf

PROPERTY: When hospital filed liens and then recovered adjusted amounts for services rendered pursuant to hospitals agreements with insurance providers of appellants, who were injured in automobile accidents, hospital argued that it may return adjusted payments to insurance provider and may, instead, seek to recover its full, unadjusted bills from appellants third-party tort-feasors by foreclosing its liens, liens under Hospital Lien Act presupposes existence of debt; appellants are third party beneficiaries of their respective insurers service contract with hospital; having chosen to accept prices certain for services as payment in full and having, in fact accepted payments from appellants insurance providers, underlying debts are extinguished; in absence of underlying debts, hospital may not maintain its liens; right to subrogate belongs to insurance provider, and hospital lien does not create subrogation right in hospital. West v. Shelby County Healthcare Corp., 2/11/13, WS, Stafford, 39 pages.
http://www.tncourts.gov/sites/default/files/westdopn.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of fathers parental rights on ground that father engaged in conduct prior to his incarceration exhibiting wanton disregard for childs welfare when termination petition did not allege wanton disregard as ground upon which termination was sought; court may terminate parents rights to his child based only upon statutory ground(s) alleged in petition because otherwise parent would be disadvantage[d] in preparing a defense. In re Anthony R., 2/8/13, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/inreanthonyr_opn.pdf

FAMILY LAW: Trial court erred in dismissing fathers petition to reduce child support fathers monthly child support obligation of $835 was based on income of $3,285 when, at time father filed petition to modify his child support, his gross income was, at most, $1,059 per month; difference between amount of child support father was paying ($835 per month) and amount of child support gross income of $1,100 per month for two children would yield under Child Support Guidelines ($348 per month) is sufficient to constitute significant variance; case is remanded for trial court to set fathers child support consistent with Guidelines for his (and mothers) current income. Gulley v. Fletcher, 2/7/13, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/gulleyj_opn.pdf

FAMILY LAW: Trial court erred in awarding almost all (over 95%) of parties marital property to wife when, although wife was entitled to greater share of marital property due to fact that husband cannot afford to pay [wifes] need, extreme disproportion in percentages awarded to two spouses was not warranted; trial courts property division is modified to award remaining value of husbands 401k account ($40,872) to husband; trial court erred in awarding wife $1,500 per month as alimony in futuro when evidence did not support trial courts finding that wife could not earn over $5,000 per year given fact that wife completed three years of college and has had real estate license; since wife will need some time to transition into work force, trial courts award of alimony in futuro is modified to award of $1,200 per month in transitional alimony for five years. Hatfield v. Hatfield, 2/7/13, MS, Bennett, 9 pages.
http://www.tncourts.gov/sites/default/files/hatfieldm_opn.pdf

CIVIL PROCEDURE: When, following jury verdict in favor of appellants, their former law firm filed attorney lien and motion to recover its attorney fees in trial court, trial court erred in awarding former firm its full requested fee; funds at issue were not within control of trial court during the underlying litigation, and hence, trial court had no jurisdiction to award appellants former law firm its alleged fee; trial court had jurisdiction pursuant to TRCP 67.01 to allow defendants to deposit funds at issue with circuit court clerk pending resolution of all pending disputes,

but nothing in TRCP 67.01 confers jurisdiction on trial court to consider post-trial dispute between one party and its own attorney; fact that parties agreed that funds should remain in court pending resolution of all disputes and further order of court did not confer jurisdiction on trial court. Castle v. David Dorris Logging Inc., 2/11/13, WS, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/castlehopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In murder case, trial judge did not commit plain error by instructing jury that defendants statement to law enforcement officers was confession rather than admission against interest. State v. Petty, 2/12/13, Nashville, McMullen, 8 pages.
http://www.tncourts.gov/sites/default/files/pettyjeffreyopn.pdf

CRIMINAL PROCEDURE: In second degree murder case, trial court did not abuse discretion in discharging juror when juror could not promise that she would be able to be fair and impartial in case juror said that she did not know whether she could weigh testimony of police officers same as other witnesses because she and her husband had recently been involved in incident with Memphis Police Department that undermined her confidence in some of police officers. State v. Hill, 2/11/13, Jackson, Wedemeyer, 18 pages.
http://www.tncourts.gov/sites/default/files/hillterrenceopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of reckless endangerment and evading arrest, in light of defendants antagonistic relations with several counsel who had represented him, trial court did not abuse discretion in allowing counsel to withdraw from further representation of defendant; there is no authority which allows appellate court to become involved, during direct appeal of criminal conviction, in financial dealings between defendant and his or her attorney; appellate court has no authority to compel counsel to disclose fee arrangements between counsel and defendant; while it is regrettable that defendant proceeded to trial without counsel, record supports trial courts findings as to acrimonious dealings between defendant on one hand and court and his various counsel on other. State v. Houston, 2/11/13, Knoxville, Glenn, 14 pages.
http://www.tncourts.gov/sites/default/files/houstonrockyopn.pdf

CRIMINAL LAW: Defendants convictions for sexual battery and aggravated assault do not violate double jeopardy. State v. Johnson, 2/7/13, Jackson, Wedemeyer, 27 pages.
http://www.tncourts.gov/sites/default/files/johnsonmahlonopn.pdf

SIXTH CIRCUIT COURT OF APPEALS INSURANCE: When surviving son filed suit against bar in Memphis, its owners, and its employees on behalf of decedent who died after confrontation with bar security, complaint alleged that bars security attacked decedent, used stun gun on him, restrained him with zip-ties, and failed to monitor him as he died in their custody, and bars insurer filed suit against both parties in underlying suit, district court properly ruled that insurer did not have duty to defend bar when policy explicitly excluded any injury that arises from battery, regardless of existence of concurrent causes, and when underlying allegations include battery. Atlantic Casualty Insurance Co. v. Cheyenne Country, 2/13/13, Rogers, 11 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0170n-06.pdf

REVENUE RULING TAXATION: Application of Tennessee sales and use tax to customer loyalty incentive program. Department of Revenue Letter Ruling 12-30, 11/21/12, 8 pages.
http://www.tn.gov/revenue/rulings/sales/12-30.pdf

ATTORNEY GENERAL OPINION CRIMINAL LAW: Provided that essential elements are established by sufficient proof, individuals involved in unlawfully furnishing narcotic drugs to mother may be found liable in criminal action for newborn childs addiction or birth defects resulting from maternal drug use; recent amendments to Tennessee law would preclude any criminal liability of mother for newborn childs addiction or birth defects resulting from maternal drug use; recent amendments to Tennessee law would preclude any criminal liability of mother for newborn childs addiction or birth defects; civil liability of mother or other individuals involved in unlawfully furnishing these drugs to mother would depend upon specific facts and circumstances presented. Attorney General Opinion 13-01, 2/1/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-01.pdf

If you would like a copy of the full text of any of these opinions, simply click on the link provided or, if no link is provided, you may respond to this e-mail or call us at (615) 661-0248 in order to request a copy. You may also view and download the full text of any state appellate court decision by accessing the states web site by clicking here: http://www.tncourts.gov/