TAM-BYTES August 5, 2013 Vol. 16, No.

31
2013 TAM CLE CALENDAR

Audio Conferences
Covenants Not to Compete: Overview and Drafting Tips for Tennessee Attorneys, 60-minute webinar presented by David Johnson, Nashville attorney, and Danny Van Horn, Memphis attorney, on Tuesday, August 27 at 2 p.m. (Central), 3 p.m. (Eastern). HIPAA and HITECH Act: The Impact of New Rules on Your Practice, 60-minute webinar presented by Anne Sumpter Arney and Susan High-McAuley, Nashville attorneys, on Thursday, August 29 at 2 p.m. (Central), 3 p.m. (Eastern). From Smartphones to iPads: Legal Issues When Employees Bring Their Own Devices to Work, 60-minute webinar presented by James Crumlin, Nashville attorney, on Thursday, September 5 at 2 p.m. (Central), 3 p.m. (Eastern). The Smoking Guns of Social Media: How to Collect, Preserve, and Admit Social Media Evidence at Trial, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney, on Wednesday, September 11 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate

PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court; William
(Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: Donald Farinato, Holbrook Peterson Smith; Monica Franklin,

CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY: Elaine Beeler, Clerk & Master, Chancery Court for 21st Judicial
District (Hickman, Lewis, Perry, and Williamson counties); Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs Lyle,
Judge Tim Easter, attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

IN THIS WEEKS TAM-Bytes Workers Comp Panel reverses award of 97.75% permanent disability and finds employee was permanently and totally disabled, resulting in, due to employees age, lower number of weeks of benefits; Court of Appeals affirms dismissal of defendant doctor when plaintiff amended complaint, originally filed against hospital, to add doctor but failed to file certificate of good faith with amended complaint; Court of Appeals, in tort case, holds employee was not acting within scope of his employment while driving to his employer, funeral home, when, although subject to being called to work, he was not paid until he clocked in at funeral home job site; Court of Appeals awards wife alimony in futuro when wifes $3,000 per month rehabilitative alimony was scheduled to terminate, wife who was in her mid-60s could not be rehabilitated, and she had not become self-sufficient as real estate agent as she had planned at time of divorce; and Court of Criminal Appeals reverses defendants convictions for multiple sex offenses when trial court erred in allowing detective to testify about defendants failure to attend voluntary interviews with police.

WORKERS COMP PANEL WORKERS COMPENSATION: When employee sustained multiple injuries in work incident in 4/05, he returned to work for employer, parties settled employees claim for workers compensation benefits based on 34.5% permanent disability, employee subsequently filed complaint seeking reconsideration of previous award, and trial court awarded benefits based on 97.75% permanent disability making employee eligible for 391 weeks of benefits evidence preponderated against trial courts finding that employee, who was born on 8/31/47, was not permanently and totally disabled making him eligible for 190.43 weeks of benefits; employees ability to make some contribution to farm operation was not controlling when employee would not be able to engage in farming without aid of his son and wife, he described his farming activities as piddling, he stated in his Social Security Disability application that he became unable to work on 1/5/10, and doctor described employee as good candidate for total disability status should he apply for Social Security Disability benefits; question of whether employees permanent vocational disability is total or partial should not be based upon which finding will bring employee greatest amount of benefits but upon evidence in record. Conatser v. Fentress Farmers Cooperative, 7/26/13, Nashville, Harris, 9 pages.
http://www.tncourts.gov/sites/default/files/conatser-fentressopn__jo.pdf

WORKERS COMPENSATION: In case in which employee injured her right shoulder in 10/04, doctor restricted her from lifting more than 10 pounds, from working with her arm in outstretched position, and advised her to limit use of arm for pushing and pulling, employee returned to her regular job, which included activities outside doctors restrictions, pain in shoulder continued to worsen, doctor modified restrictions in fall 2007, advising employee not to lift over five pounds or to work in outstretched and overhead positions, and because her shoulder was getting worse and she was having to lift heavier parts, employee accepted voluntary layoff, trial court did not err in finding that employee was permanently and totally disabled; five-pound lifting restriction, as well as positional limitations, placed upon 70-year-old employee whose work history consists entirely of unskilled and semiskilled labor totally incapacitated employee from working at occupation that brings her income. Norton v. Whirlpool Corp., 7/26/13, Nashville, Harris, 7 pages.
http://www.tncourts.gov/sites/default/files/norton_v_whirlpool_opnjo.pdf

COURT OF APPEALS TORTS: When plaintiff filed medical malpractice and wrongful death claims against hospital alleging that hospitals medical personnel did not immediately notify physician that decedent had fallen and failed to request that CT head scan be ordered, complaint included certificate of good faith, plaintiff determined after discovery that doctor should be added as party to suit, plaintiff sent doctor notice of claim and filed motion to amend compliant, and plaintiff did not contemporaneously file certificate of good faith with amended complaint, trial court properly granted doctor summary judgment because plaintiff did not file second certificate of good faith with amended complaint. Groves v. Colburn, 7/30/13, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/grovesa_opn.pdf

TORTS: When substantial portion of second and third buildings collapsed, damaging six buildings and compromising structural integrity of each building, due to safety concerns, parties were ordered not to enter buildings and were required to ensure that their buildings were inaccessible to public, parties complied with orders, shortly thereafter, trespasser entered defendants building and started fire which spread to each of adjoining buildings, and plaintiffs filed negligence actions, trial court did not err in directing verdict in favor of defendant; it was not reasonably foreseeable that adjoining owners buildings would be destroyed by fire intentionally set by trespasser in defendants building, and hence, defendant was under no duty to protect adjoining owners from criminal act of trespasser that occurred on her property. Main Street Market LLC v. Weinberg, 7/31/13, WS, Farmer, 13 pages.
http://www.tncourts.gov/sites/default/files/weinbergemilyvopn.pdf

TORTS: When vehicle operated by Tipton collided with vehicle operated by Renfroe, at time of accident, Tipton, employee of funeral home, was traveling to funeral home in vehicle owned by Frey in order to clock in, obtain funeral home vehicle, and then pick up body of deceased individual, and Renfroe and her two passengers filed suit, trial court properly granted funeral home summary judgment; funeral home argued that line of workers compensation cases should control disposition of issue of whether Tipton was acting within scope of employment, but this is tort case and workers comp cases involve no-fault based system; even applying workers comp law, Tipton was not acting within scope of his employment when, although subject to being called to work, he was not paid until he clocked in at funeral home job site; to find funeral home liable simply because Tiptons job required travel and accident occurred while he was traveling to work would result in employers being subject to vicarious liability while their employees were traveling to work all of time for any employee whose job required travel, and such rule would extend to employees such as bus drivers, truck drivers, ones who drive company

vehicles, etc., whether employee was driving employers vehicle or personal vehicle and whether employee was acting within course and scope of employment or not. Cooper v. Robert Ledford Funeral Home Inc., 7/29/13, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/cooperjopn_0.pdf

WORKERS COMPENSATION: In suit for negligence under Federal Employers Liability Act (FELA) in which trial court entered judgment on jurys verdict finding, inter alia, that railroad was not at fault for plaintiffs injury, trial court erred in limiting jury instruction regarding notice and foreseeability to day of the incident; instruction improperly focused jury as to what railroad knew or should have known only on that one specific day rather than looking at more expanded period of time of before accident occurred. Spencer v. Norfolk Southern Railway Co., 7/29/13, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/spenceraopn.pdf

INSURANCE: When Roberts owned commercial building operated as Family Dollar store, Roberts engaged Burns to assist with recoating roof of building, Burns fell from roof and suffered devastating injuries, Burns filed suit against Roberts seeking to recover for his injuries, Burns complaint alleged that he was employee of Roberts defendants, working at direction of Jerry Roberts, and paid by hour, commercial general liability insurance policy provided to Roberts did not provide coverage for injuries to employees but provided coverage for injuries to temporary workers, and insurer sought declaratory judgment alleging that because underlying suit filed by Burns sought damages arising out of his employment, then Burns claims and damages were specifically excluded from coverage under policys employer liability exclusion, trial court erred in holding that insurer had duty to defend Roberts in underlying tort case filed by Burns and to provide coverage; when policy defined temporary worker as person who is furnished to you to substitute for permanent employee on leave or to meet seasonal or short-term workload conditions, furnished to you applies to both of clauses that follow, and third party involvement is required. Lafayette Insurance Co. v. Roberts, 7/31/13, WS, Highers, 16 pages.
http://www.tncourts.gov/sites/default/files/lafayetteinscoopn.pdf

INSURANCE: When insureds loss, damage to home caused by earthquake, occurred on 5/3/05, insurer initially denied insureds claim, according to complaint, insurer reconsidered after subsequent examinations and consultations with seismic and other experts, concluded that loss was covered, and on 9/28/08, tendered check to insured for $88,086, complaint alleged that insured did not agree with [the] damage assessment and ha[ve] declined to accept [the] settlement tendered by the [insurer], and insureds filed suit on 4/3/12, trial court properly dismissed complaint because it was filed beyond contractual limitations period of one year from date of

loss; insureds had reasonable argument that renewal of discussion and investigation of their claim after insurers initial denial may have justified reasonable delay in bringing suit and allowed them reasonable time to sue after insurer tendered its settlement check, notwithstanding fact that it was well after one year had passed from date of loss, but insured waited over three and one-half years after settlement offer was rejected by them to file suit and offered no explanation or excuse for waiting so long. Chill v. Tennessee Farmers Mutual Insurance Co., 7/31/13, ES, Susano, 5 pages.
http://www.tncourts.gov/sites/default/files/chilldopn.pdf

FAMILY LAW: In case in which trial court found father in criminal contempt for violating court order and his numerous instances of perjured testimony, because father was not given notice required by TRCrP 42(b) specifically charging father with criminal contempt and because trial courts statement from bench that violation of its order would possibly lead to criminal contempt holding and period of time spent in jail did not satisfy procedural notice requirements of TRCrP 42(b), trial courts holding of criminal contempt is vacated, and case is remanded for further proceedings. In re Faith A.F., 7/26/13, MS, Dinkins, 18 pages.
http://www.tncourts.gov/sites/default/files/faith_a._f.__opn.pdf

FAMILY LAW: In case in which trial court awarded father 245 days per year of parenting time with parties two children and awarded mother only 120 days per year, evidence preponderated against such disparity of parenting time when both parties were caring and loving parents who were actively involved in childrens lives and in caring for them, and primary reason father was designated as childrens primary residential parent was factor of continuity, which was primarily dependent on who was awarded marital residence; case is remanded so that trial court may consider adopting revised parenting schedule that maximizes participation of both parents consistent with TCA 36-6-106(a). McDaniel v. McDaniel, 7/29/13, MS, Clement, 5 pages.
http://www.tncourts.gov/sites/default/files/mcdaniele_opn.pdf

FAMILY LAW: In case in which trial court awarded wife $3,000 per month as rehabilitative alimony in 2004 that was to terminate in 2012, in 2009, wife filed petition to increase duration and amount of her alimony, or, in alternative, for award of alimony in futuro, and trial court denied wifes petition, finding that although wife was in need of support, she had not used all reasonable efforts to rehabilitate herself, because wife, who is in her mid-60s, cannot be rehabilitated (as that term has been defined by legislature) and has not become self-sufficient as real estate agent as she planned at time of divorce, trial courts judgment denying wifes petition for alimony is reversed, and wife is awarded alimony in futuro of $2,000 per month beginning in 12/12. Owens v. Owens, 7/30/13, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/owensla_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts finding that mothers violation of parenting plan by denying father his scheduled parenting time with child for more than one occasion over about one month constituted material change in circumstances; trial court abused discretion in modifying parenting plan to designate father as childs primary residential parent when there was no finding by trial court that mother had previously violated parenting plan generally, pattern of misconduct, rather than single instance, has normally been basis for change in designation of primary residential parent and evidence did not support finding that mother had consistently denied father his parenting time with child; trial courts admonition at previous hearing that one more transgression by either party would result in strict curtailing of errant parents access to his or her child was inconsistent with trial courts solemn responsibility to make parenting decisions based on law, evidence, and childs best interest. Williams v. Singler, 7/31/13, WS, Kirby, 24 pages.
http://www.tncourts.gov/sites/default/files/williamsbopn.pdf

CIVIL PROCEDURE: Trial court did not abuse discretion in denying defendants motion for new trial in case in which defendants contended that jurors arrived at punitive damages amount using quotient, or gambling, verdict; although defendants submitted five juror affidavits in support of their position while plaintiffs submitted only three juror affidavits in support of their position, law regarding quotient verdicts is that all jurors must agree in advance to be bound by verdict reached through process of averaging individual jurors figures and dividing that number by number of jurors; if only portion of jurors agreed to be bound by this outcome, as jurors affidavits indicate, verdict reached is not quotient, or gambling, verdict, and there is no resulting juror misconduct. Worley v. Rarity Communities Inc., 7/29/13, MS, Cottrell, 6 pages.
http://www.tncourts.gov/sites/default/files/worleywh_opn.pdf

CIVIL PROCEDURE: In dispute concerning real estate contract, gravamen of action was for injury to property, and three-year statute of limitation applied, when plaintiff sought damages for decreased value of her remaining property due to defendants failure to provide access to her property as contemplated in contract; evidence preponderated against trial courts finding that statute of limitation did not begin to run until 12/07, when plaintiff contacted her attorney and learned that deed did not reserve her 60-foot strip of land; plaintiff contended that because of her friendship with general partner of defendant, she acted reasonably in assuming that deed complied with real estate sale contract and in failing to obtain copy of survey or examine deed at closing, but there is no authority supporting proposition that friendship should relieve one of obligation to read and examine documents at real estate closing. Benz-Elliott v. Barrett Enterprises LP, 7/29/13, MS, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/benz-elliottb_opn.pdf

APPEAL & ERROR: When circuit court erred in dismissing appeal from general sessions court based on appellants failure to file surety bond; as held in Bernatsky v. Designer Baths & Kitchens LLC, 38 TAM 10-21 (Tenn.App. 2013), payment of standard court cost under TCA 8-21-401(b)(1)(C)(i) satisfied requirement to give bond for costs of appeal to circuit court under TCA 27-5-103(a). Griffin v. Campbell Clinic P.A., 7/31/13, WS, Stafford, dissent by Highers, 7 pages.
http://www.tncourts.gov/sites/default/files/griffinwaopn.pdf http://www.tncourts.gov/sites/default/files/griffinwilmadis.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant was convicted of seven counts of sexual battery, eight counts of rape, and one count of solicitation of minor, because trial court erred in allowing detective to testify about defendants failure to attend voluntary interviews with police, defendants convictions must be reversed; because proof of defendants guilt rested solely on victims testimony, improperly admitted evidence of defendants lack of voluntary cooperation with police affected jurys verdict, and in such close case, defendant must be afforded new trial. State v. Tate, 7/31/13, Nashville, Smith, 16 pages.
http://www.tncourts.gov/sites/default/files/tatejoshuaopn.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/