TAM-BYTES March 11, 2013 Vol. 16, No.

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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 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). All is Fair (Use) in Love & Copyright: Recent Developments in Copyright Suits, 60-minute webinar presented by Stephen Zralek, Nashville attorney, on Thursday, April 4 at 2 p.m. (Central), 3 p.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes * Supreme Court sets annual cap on total hours that attorney may bill for indigent services; * Court of Appeals affirms dismissal of medical malpractice case when plaintiff failed to provide to any of medical providers HIPAA-compliant medical authorization prior to suit, no proof of service of pre-suit notice was included in complaint, and plaintiff failed to include in certificate of good faith number of prior violations of TCA 29-26-122 by executing party; * Court of Appeals affirms award of $1 million under Tennessee Consumer Protection Act against insurer who denied coverage and refused to defend underlying suit;

* Court of Appeals rules personal representative of decedents estate has discretion to pay lawful and bona fide debts of decedent exceeding $1,000, for which no claim has been filed, provided estate is solvent and period in which to file claim arising from debt had not expired when debt was paid; * Court of Criminal Appeals says to justify dismissal of indictment based on due process grounds, defendant must prove not only that he suffered prejudice from delay but also that state used delay as device to gain tactical advantage; and * Court of Criminal Appeals says judicial diversion statute grants trial court discretion to revoke diversion upon finding of probation violation but does not mandate that, upon finding violation, trial court must revoke diversion. SUPREME COURT CRIMINAL PROCEDURE: New Rule 13, Section 2(g) provides that counsel appointed or assigned to represent indigents shall not be paid for any time billed in excess of 2,000 hours per calendar year unless, in opinion of Administrative Director, attorney has made reasonable efforts to comply with this limitation, but has been unable to do so, in whole or in part, due to attorneys representation pursuant to Section 3 of Rule 13; transitional provision to be repealed 12/31/13 provides that attorney who has existing caseload at time of adoption of subsection (g) shall take annual hourly limit into consideration prior to accepting new appointments. In re Supreme Court Rule 13, Section 2(g), 3/5/13, Nashville, 3 pages.
https://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_13_section_2_g.pdf

PROFESSION OF LAW: Supreme Court Rule 33.05(E) is amended to list three types of monitoring agreements provided by Tennessee Lawyer Assistance Program (TLAP) Voluntary Monitoring Agreement with no reporting party listed in agreement, Voluntary Monitoring Agreement with reporting to non-disciplinary authority, and Monitoring Agreement requiring mandatory reporting to disciplinary or licensing authority; when TLAP accepts referral under Rule 33.07(A), which results in recommendation for monitoring agreement, with disciplinary agent as reporting party, TLAP must provide progress reports or reports of substantial noncompliance. In re Petition to Amend Supreme Court Rule 33, 2/26/13, Nashville, 6 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_33_-_effective_3-1-2013.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Because there was no causal relationship between employees failure to completely disclose his medical history during application process and his fall from truck, evidence did not preponderate against

trial courts finding that misrepresentation defense did not bar employees recovery; evidence did not preponderate against trial courts finding that employee did not intentionally misrepresent his physical condition when trial court found plausible employees explanation that he had worked consistently most of time since his 1990 injury and did not feel that he was restricted from working as truck driver. Owsley v. Con-Way Truckload Inc., 3/7/13, Knoxville, Anderson, 12 pages.
http://www.tncourts.gov/sites/default/files/owsley_v_con-way_truckload.pdf

WORKERS COMPENSATION: In case in which employee, truck driver, was attempting to close door on large metal container when crane struck container, causing door to push employee into car hauler, trial court did not err in accepting opinion of Dr. Zizic, rheumatologist who testified that recent research had found no relationship between physical trauma and rheumatoid arthritis, over those of physicians who testified on employees behalf, and in finding that employees work injury did not aggravate his rheumatoid arthritis; evidence did not preponderate against trial courts finding that employee suffered injury to his lumbar spine as result of work incident; evidence did not preponderate against trial courts finding that work injury resulted in 14% permanent anatomical impairment to body as whole. Hill v. Hutcherson Metals Inc., 3/5/13, Jackson, Cantrell, 11 pages.
http://www.tncourts.gov/sites/default/files/hillbillyopn.pdf

EVIDENCE: Document from individual who authored response from Department of Labor and Workforce Development confirming receipt of employees request for benefit review conference met requirements for authentication of document under TRE 901(b)(1); evidence did not preponderate against trial courts finding that employee sustained permanent disability as result of her work injury cervical sprain, superimposed on pre-existing disc disease for which surgery performed was reasonable and necessary, when doctor testified that employees symptoms were a direct result of the work injury and that treatment he provided was necessary as result of injury. McDougal v. Goodyear Tire & Rubber Co., 3/7/13, Jackson, Clark, 10 pages.
http://www.tncourts.gov/sites/default/files/mcdougalopn.pdf

COURT OF APPEALS TORTS: In medical malpractice suit, plaintiff failed to comply with requirements of TCA 29-21-121(a) in that he failed to provide to any of medical providers HIPAA-compliant medical authorization prior to suit being filed husband included with his pre-suit notice medical authorization, but version provided only allowed providers to disclose medical information to plaintiffs counsel and hence, plaintiff was not entitled to benefit of any rights afforded by statute, including extension of applicable statute of limitation period for suit; plaintiff

failed to comply with TCA 29-26-121(b) in that he failed to file with his complaint required documentation evidence that pre-suit notification was sent to any of providers, and amended complaint did not serve to cure deficiencies; plaintiff failed to comply with TCA 29-26-122 in that he failed to include in certificate of good faith number of prior violations of section by executing party, and there was no showing that failure to comply with statute was due to any extraordinary cause. Vaughn v. Mountain States Health Alliance, 3/5/13, ES, McClarty, 13 pages.
http://www.tncourts.gov/sites/default/files/vaughnopn1.pdf

TORTS: When two elementary school students who were passengers on school bus were injured in collision between school bus and pickup truck, suits were filed on behalf of injured students, trial court dismissed school bus driver and board of education as defendants, plaintiffs settled with some of defendants, leaving Metropolitan Government of Nashville and Davidson County (Metro) as only remaining defendant, and trial court found that driver of pickup truck was 75% at fault and that Metro was 25% at fault, judgment is reversed; evidence preponderated against trial courts finding regarding speed of school bus, against trial courts finding that students possession of plastic soda bottle or boom box had any effect on collision or injuries to one of plaintiffs, and against trial courts finding that bus drivers decision to use route he drove was proximate or legal cause of plaintiffs injuries. Rowland v. Metropolitan Government of Nashville, 2/28/13, MS, Bennett, 24 pages.
http://www.tncourts.gov/sites/default/files/rowlandm_opn.pdf

TORTS: When developer filed suit against surveyor, claiming two distinct acts of negligence, one involving error allegedly made by surveyor in 1993 and second involving claim that, upon discovering 1993 survey error in subsequent survey performed in 2002, surveyor had duty to inform developer of error, any negligence arising from 1993 survey claim was barred by statute of repose, TCA 28-3-114(a); when, despite surveyors numerous motions to exclude cause of action as timebarred, trial court allowed 1993 negligent survey claim to be tried to jury, jury was then instructed as to both claims of negligence, and jury returned verdict finding surveyor to be 40% at fault and awarding damages in favor of developer, because jury was improperly instructed and was allowed to consider time-barred claim of negligence, jury was misled by instruction; judgment on jury verdict is vacated. Island Properties Associates v. Reaves Firm Inc., 3/6/13, WS, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/islandpropertiesopn.pdf

INSURANCE: In case in which individual who was injured in collision with automobile driven by unlicensed minor filed suit against minor, minors parents insurance company (insurer) denied coverage and refused to defend suit on basis of exclusion in insurance policy for damages caused by party driving without

permission of owner or person in lawful possession of vehicle, injured party obtained $1 million default judgment against minor, and injured party and minors parents (plaintiffs) filed suit against insurer, trial court properly ruled that plaintiffs were entitled to summary judgment on issue of coverage minor was driving car with permission of person in lawful possession; by submitting question of punitive damages to jury and approving award of punitive damages for bad faith, rather than 25% statutory penalty, any bad faith liability was based on plaintiffs claim for the tort of bad faith; there is no express recognition of tort of bad faith in situations that fall within parameters of bad faith statute; holding of liability for bad faith, including award of punitive damages, is reversed; legislature has identified specific acts or practices by insurance companies that are unfair claims practices, and violation of those statutory provisions can also constitute violation of Tennessee Consumer Protection Act (TCPA); material evidence supported jurys finding that insurer committed unfair or deceptive act or practice under TCPA causing damages to minors parents, and trial courts award of $1 million in compensatory damages is affirmed; evidence did not support finding that insurer had practice or pattern of conduct that would justify trebling of damages under TCPA. Leverette v. Tennessee Farmers Mutual Insurance Co., 3/4/13, MS, Cottrell, partial dissent by Dinkins, 58 pages.
http://www.tncourts.gov/sites/default/files/leverettewopnrevised.pdf http://www.tncourts.gov/sites/default/files/leverett_concur_and_dissent.pdf

COMMERCIAL LAW: In case in which bank accelerated loan secured by aircraft after borrower failed to maintain insurance on aircraft as required by loan documents, bank filed action to collect amounts due, took possession of and disposed of aircraft, and sought judgment for deficiency, trial court erred in finding that bank provided sufficient notice as required by TCA 47-9-611 when there was no evidence that bank notified borrowers that it had, in fact, taken possession of aircraft so as to provide borrowers with reasonable opportunity to redeem aircraft before it was sold at private sale; correspondence to borrowers did not provide reasonably sufficient notice of disposition where it did not evidence settled intent to sell aircraft, did not indicate whether aircraft would be sold at public or private sale, and did not set forth disposition date on or after which aircraft would be sold; banks disposition of collateral was not commercially reasonable, and award to bank of deficiency is vacated. Regions Bank v. Thomas, 3/4/13, WS, Farmer, 20 pages.
http://www.tncourts.gov/sites/default/files/thomasthomasdopn.pdf

ESTATES & TRUSTS: Personal representative of decedents estate has discretion to pay lawful and bona fide debts of decedent exceeding $1,000, for which no claim has been filed, provided estate is solvent and period in which to file

claim arising from debt had not expired when debt was paid. Estate of Freedman v. Taradash, 3/6/13, MS, Clement, 11 pages.
http://www.tncourts.gov/sites/default/files/freedmanestate_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts designation of father as primary residential parent of parties 1.5-year-old child and its decision to allow father to return with child to North Carolina, where both parties originally resided and where their families still lived, when, although mother was granted only three days of supervised visitation with child each month in North Carolina, evidence was overwhelming that it would be in best interest of child for father and child to relocate to North Carolina where father is determined to provide him with better life than is possible for him to establish in Tennessee; although trial court acknowledged that there is inherent tension between policy preference in state for frequent and regular contact between both parents and child and relocation that makes it difficult for one parent to maintain contact with child, trial court nonetheless declared that fathers relocation remained in childs best interest because of economic and family advantages that would accrue to child from such move. Port v. Hatton, 3/6/13, MS, Cottrell, 15 pages.
http://www.tncourts.gov/sites/default/files/portjd_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts termination of fathers parental rights to his child, who was born drug-addicted and with extensive medical needs, on ground of persistence of conditions when father failed to participate in, and exhibited complete indifference to, childs medical needs, his speech therapy requirements, or his educational needs, and such lack of participation constitutes neglect; evidence of fathers neglect and lack of attention to childs medical and other needs shows unwillingness on his part to see that childs needs are met and puts child at risk for more medical problems and issues, which, in turn, supports holding that continuation of relationship between father and child would greatly diminish childs complete integration into safe and stable environment available in his current home. In re Thomas L.H.H., 2/28/13, MS, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/thomas_l.h.h._opinion.pdf

CIVIL PROCEDURE: In suit arising from purchase of recreational vehicle by plaintiffs, residents of Tennessee, from defendant, Florida corporation located in Hillsborough County, Fla., trial court lacked personal jurisdiction over defendant when defendant directed no action toward Tennessee, defendant did not advertise in Tennessee, defendant did not directly market to Tennessee residents, plaintiff initiated contact with defendant following visit to Airstream web site, and initial contact was via defendants passive web site, one that offers information for user to

access, as opposed to active web site that transacts business. Richardson v. Bates Show Sales Staff Inc., 3/6/13, MS, Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/richardsonw_opn.pdf

GOVERNMENT: Settlement agreements and settlement reports from Corrections Corporation of America (CCA), which set forth information regarding settlement and/or payment of claims and/or litigation against CCA facilities in Tennessee, are public records, which CCA is required to produce under Public Records Act (Act); as functional equivalent of government agency, CCA is required to turn over settlement agreements related to operation of correctional facilities unless otherwise provided by state law; although other aspects of CCAs database and records may qualify as attorney work product, and thus be exempt from disclosure under Act, settlement reports at issue do not. Friedmann v. Corrections Corp. of America, 2/28/13, MS, Clement, 15 pages.
http://www.tncourts.gov/sites/default/files/friedmann_opn.pdf

APPEAL & ERROR: Payment of $211.50 cash bond which included standard court cost of $150 to general sessions court was sufficient under TCA 27-5-103 and 8-21-401 to confer subject matter jurisdiction on circuit court. Brown v. Shtaya, 3/6/13, WS, Kirby, dissent by Highers, 19 pages.
http://www.tncourts.gov/sites/default/files/brownkennethopn.pdf http://www.tncourts.gov/sites/default/files/brownkennethdissent.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of felony murder when testimony of defendants accomplices was sufficiently corroborated; although neither accomplices testimony nor defendants confession would be sufficient, standing alone, to support defendants felony murder conviction, when this evidence is coupled with other corroborating evidence, there is more than sufficient proof to support conviction; trial court is not required to excise portions of accomplice testimony that are in conflict with defendants statement. State v. Trezevant, 3/5/13, Jackson, McMullen, 19 pages.
http://www.tncourts.gov/sites/default/files/trezevantvictoropn.pdf

CRIMINAL PROCEDURE: Trial court abused discretion in dismissing defendants indictment due to pre-indictment delay when it misapplied law in reaching determination that delay caused defendant actual prejudice; correct test for determining whether pre-indictment delay violates defendants right to constitutional due process and necessitates dismissal of indictment is whether accused proved (1) that there was delay, (2) that defendant sustained actual prejudice as direct and proximate result of delay, and (3) that state caused delay in

order to gain tactical advantage over or to harass accused, and trial court erred in dismissing indictment after concluding that state did not intentionally cause delay to gain tactical advantage over defendant; to justify dismissal of indictment based on due process grounds, defendant must prove not only that he suffered prejudice from delay but also that state used delay as device to gain tactical advantage. State v. Manning, 3/4/13, Knoxville, Thomas, 9 pages.
http://www.tncourts.gov/sites/default/files/manningahmad_opn.pdf

CRIMINAL PROCEDURE: Defendant was sufficiently charged with offense of especially aggravated kidnapping when indictment clearly referenced appropriate statute, TCA 39-13-305, which, in turn, referenced TCA 39-13-302 that defines false imprisonment as unlawful and knowing removal or confinement of another so as to interfere substantially with the others liberty; accused seeking disclosure of grand jury testimony must demonstrate particularized need for materials sufficient to outweigh policy in favor of secrecy, and allegation of possible inconsistencies, or speculation as to inconsistencies, in testimony of other witnesses without specific reference to those alleged inconsistencies will not be adequate to show particularized need. State v. Lambert, 3/4/13, Nashville, Ogle, 18 pages.
http://www.tncourts.gov/sites/default/files/lambertkhaleefaopn.pdf

CRIMINAL PROCEDURE: Trial counsel is not required to withdraw representation merely because client has filed complaint against him or her with Board of Professional Responsibility. State v. Boling, 3/5/13, Knoxville, Woodall, 14 pages.
http://www.tncourts.gov/sites/default/files/bolingrobertedwardopn.pdf

CRIMINAL SENTENCING: Lortab and other mixtures of hydrocodone that comply with strictures of Schedule III are Schedule III drugs, and possessing them with intent to sell or distribute in violation of TCA 39-17-417(a) is Class D felony; trial court erred in sentencing defendant for Class C felony with respect to his conviction for possession of hydrocodone with intent to sell or distribute when crime at issue was, in fact, Class D felony; case is remanded to trial court for resentencing. State v. Pruitt, 3/6/13, Jackson, Williams, 15 pages.
http://www.tncourts.gov/sites/default/files/pruittopn3.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to reckless aggravated assault and was placed on judicial diversion with probationary period of two years, trial court, in later revoking defendants diversion and probation, failed to exercise its statutory discretion and thereby committed reversible error trial judge erroneously concluded that once it determined that defendant had violated terms of his judicial diversion, pursuant to State v. Johnson, 15 SW3d 515 (Tenn.Cr.App. 1999), it had no choice but to revoke diversion, enter judgment of conviction, and impose sentence; judicial diversion statute grants trial court discretion to revoke diversion upon its finding of probation violation, but statute

does not mandate that, upon finding violation, trial court must revoke diversion; case is remanded to trial court for determination of whether defendants judicial diversion should be revoked. State v. Hensley, 3/4/13, Knoxville, Bivins, 7 pages.
http://www.tncourts.gov/sites/default/files/hensleybopn.pdf

SIXTH CIRCUIT COURT OF APPEALS CONSTITUTIONAL LAW: In 42 USC 1983 suit by plaintiff claiming violations of her Eighth Amendment rights as result of her being restrained and shackled prior to and following giving birth while in custody of law enforcement authorities employed by defendant Metropolitan Government of Nashville and Davidson County, district court erred in granting summary judgment to plaintiff as to liability on plaintiffs shackling claim; in light of material factual disputes surrounding whether plaintiff was shown to be flight risk, whether defendants officers had any knowledge about no restraint order, and conflicting expert testimony about ill effects of plaintiffs shackling, district court improperly granted summary judgment to plaintiff on her shackling claim; on remand, jury will need to determine whether plaintiff was flight risk in her condition and whether defendant had knowledge of substantial risk, recognized serious harm that such risk could cause, and, nonetheless, disregarded it; plaintiff failed to produce sufficient evidence to make out objective component of her denial of breast pump claim, and hence, district court improperly granted summary judgment to plaintiff on this claim. Villegas v. Metropolitan Government of Nashville, 3/4/13, Clay, dissent by White, 30 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0059p-06.pdf

CRIMINAL PROCEDURE: In case in which officers went to defendants home to execute search warrant for child pornography, defendant admitted officers into his home, where officers questioned him for two hours, and defendant ultimately made several incriminating remarks and signed inculpatory statement, district court erred in granting defendants motion to suppress his statements when defendant was never in custody for Miranda purposes officers did not force defendant to stay with them such that defendant was in custody to extent associated with formal arrest, while pistols were visibly holstered at officers hips, neither officer brandished them, nor did they display handcuffs or handcuff defendant, entire encounter occurred in defendants home, and officers emphasized to defendant throughout encounter that he was not under arrest. United States v. Tummins, 3/7/13, Martin, 5 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0240n-06.pdf

ATTORNEY GENERAL OPINION TAXATION: Unpaid corporate officer in Tennessee does not increase premium burden on corporation and does not derive any benefit from his or her position in corporation, in light of fact that TCA 50-7-402, Tennessees unemployment compensation statute, imposes premium only on total wages paid; corporate officer(s) who receive no compensation should not be included in calculation of whether corporation must pay unemployment compensation premiums. Attorney General Opinion 13-13, 2/20/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-13.pdf

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