TAM-BYTES

August 11, 2014

Vol. 17, No. 32
2014 TAM CLE CALENDAR
Webinars
False Claims Act Recovery and Protection for Whistleblowers, 60-minute
webinar presented by Larry Golston, Montgomery attorney, on Wednesday,
August 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Retaliatory Discharge in Tennessee: 2014 Law and Other New
Developments, 60-minute webinar presented by David L. Johnson &
Valeria Gomez, Nashville attorneys, on Tuesday, September 16, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Tech Advice for the Non-Techy Attorney: Keeping Pace with E-Discovery
and Other Tech Issues, 60-minute webinar presented by Alex Khoury,
Atlanta, attorney, on Wednesday, September 17, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit.

Police Liability in Tennessee: Top 20 Ways to Win and Lose a Section 1983
Lawsuit, 60-minute webinar presented by Steve Elliott, Nashville attorney, on
Thursday, September 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26 Nashville School of Law
TOPICS: Get up to date on the hottest issues in Tennessee personal injury
practice, including the latest products liability developments, trial tips from a trial
judge, handling medical records and private information, limitations on the use of
HIPAA protected documents in litigation, Affordable Care Act concerns, auto
insurance policies, negotiating with insurance adjusters, caps on damages,
Medicare set-asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs
and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven
Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.
*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit

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Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting QTIPs,
GRATs, and QPRTs, will drafting in 2014, the intersection of family law and
estate planning issues, use of Medicaid-compliant annuities, hot topics in probate
litigation, practicing in probate court, and updates on issues related to trusts, estate
planning, and probate. Also, hear about ethical issues arising when crafting a
healthcare power of attorney, a living will, or an advance care plan and ethical
issues arising in estate administration, such as client confidentiality, billing
inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank
of America Private Wealth Management; Harlan Dodson, Dodson, Parker, Behm
& Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell,
Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L.
Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley,
Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim
Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright,
CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for injuries
occurring on or after July 1, 2014, as well as how claims will be decided by the
claims courts; compliance issues for attorneys subject to HIPAA; latest
developments in medical malpractice, including how the appellate courts have
ruled on compliance with the pre-suit notice and certificate of good faith
requirements; how to embrace your inner digital lawyer and get up to date on
issues such as mobile computing, file management, and the risks of going
mobile; what every litigator needs to know about business entity laws in
Tennessee; latest developments in the family law area; checklist for provisions to
be included in a will today; recent changes to the rules on computer calls; how to
use a little-known VA benefit to aid your clients; overview of the administrative
process in Tennessee from an experienced chancellor; ins and outs of standards of
review and the scope of the appellate practice from an appellate court judge; tips
from a chancellor on pretrial motion practice; an insiders perspective from the
Chief Disciplinary Counsel on the Boards recent developments; how to avoid e-
discovery ethical pitfalls and how to handle social media, e-mail, video, and other
electronically stored information; and insight from a former trial judge and now
special judge on displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge Don
R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen Hobbs
Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy, Chancery
Court, Davidson County; Fred Baker, Wimberly Lawson Wright Daves & Jones
PLLC; Harlan Dodson, Dodson Parker Behm and Capparella PC; Sandy Garrett,
Chief Disciplinary Counsel, Board of Professional Responsibility; Randy L.
Kinnard, Kinnard, Clayton & Beveridge; Kevin Levine, DeSalvo & Levine PLLC;
Helen S. Rogers, Rogers, Kamm & Shea; Lucas R. Smith, Bass, Berry & Sims
PLC; Richard Spore, Bass, Berry & Sims PLC; Elizabeth Warren, Bass, Berry &
Sims PLC; and John Watts, Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

IN THIS WEEKS TAM-Bytes

In case in which 30-year-old plaintiff suffered permanent injury to his
spinal disc in accident involving three tractor-trailers, Court of Appeals
reverses trial courts remittitur of loss of earning capacity award and
reinstates jurys verdict of $1,455,000, affirms awards, as remitted by trial
court, for pain and suffering of $500,000 and for permanent injury of
$100,000, and further reduces jurys award for loss of enjoyment of life to
$50,000;
In case of first impression, Court of Appeals holds that undocumented
employee has standing to bring retaliatory discharge claim;
Court of Appeals upholds Tennessees imposition of retaliatory insurance
premium taxes against five separate groups of Pennsylvania-domiciled
companies;
Court of Appeals rules in cases involving five claimant insurance
companies challenges, based on New York law, to Tennessees calculation
of retaliatory insurance premium taxes;
In case in which trial court denied fathers petition to modify parties
residential parenting schedule, Court of Appeals holds that trial court
applied incorrect standard by implicitly requiring father to prove that
changes in parties living and working conditions were detrimental to child
or reflected negatively on mother; and
Court of Criminal Appeals reverses trial courts grant of motion to suppress
defendants statement to police and finds that police did not overreach
when questioning defendant.


WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee claimed to have
injured both knees in fall, and employer agreed that injury to right knee was
compensable but contended that injury to left knee was not work related, evidence
did not preponderate against trial courts finding that left knee was injured during
fall when treating physicians opinion that fall caused left knee injury was
corroborated by employees testimony, which trial court found to be extremely
credible, and when employees testimony that he did not experience pain in his
knees prior to fall somewhat undermined evaluating physicians opinion that pain
reported by employee prior to fall was caused by pre-existing arthritis. Brown v.
Netherlands Insurance Co., 7/30/14, Knoxville, Wade, 7 pages.
http://www.tncourts.gov/sites/default/files/ronaldbrownopn.pdf

WORKERS COMPENSATION: Evidence supported trial courts finding that
work event caused compensable advancement of employees pre-existing
condition when employee had asymptomatic condition in his knee prior to
10/18/10, he fell in course of his employment on that date, his knee became
painful and swollen thereafter and his symptoms did not resolve until doctor
performed total knee replacement surgery, all physicians testified that employees
injury either did, or could have, advanced his pre-existing arthritis, and all
testified that meniscal tear in knee was consistent with both degenerative and
traumatic causes. Reitz v. Trinet HR Corp., 8/7/14, Nashville, Harris, 8 pages.
http://www.tncourts.gov/sites/default/files/reitz-trinetopnjo.pdf


COURT OF APPEALS

TORTS: Dismissal of plaintiffs health care liability claims without prejudice is
affirmed when plaintiff did not substantially comply with pre-suit notice
requirements of TCA 29-26-121 regarding health care liability claim for several
reasons, including not listing addresses of providers in notice letter, failing to state
in complaint that he had complied with notice requirements, failing to attach any
of documentations specified in statute, not filing required proof of service, and not
establishing that he sent HIPAA-compliant medical authorization with notice, and
when plaintiff did not demonstrate extraordinary cause for noncompliance.
J ohnson v. Parkwest Medical Center, 7/31/14, ES, Frierson, 14 pages.
http://www.tncourts.gov/sites/default/files/johnsonopnfinal.pdf

DAMAGES: In case in which plaintiff suffered classic muscle, tendon, ligament
injury to his neck and permanent spinal disc herniation in accident involving
three tractor-trailer trucks, jury returned itemized verdict of $3,705,000 for
plaintiff, and trial court suggested remittitur of $1,605,000, for total award of
$2,100,000, total award of $2,105,000 is approved; when there was no basis for
straying from lost earnings figure suggested by vocational economic analyst, who
opined that plaintiffs limited credentials essentially leave him unable to compete
for jobs which he can physically perform, evidence preponderated against
$355,000 reduction suggested by trial court, and jurys award of $1,455,000 for
loss of earning capacity is reinstated; evidence did not preponderate against trial
courts remittitur of pain and suffering and mental anguish award to $500,000;
evidence did not preponderate against $100,000 award for permanent injury, as
remitted by trial court, to 30-year-old plaintiff who suffered permanent injury to
his spinal disc; even with trial courts suggested remittitur, award of loss of
enjoyment of life remains excessive and against preponderance of evidence, and
award is reduced to $50,000. Borne v. Celadon Trucking Services, 7/31/14, WS,
Highers, partial dissent by Stafford, 54 pages.
http://www.tncourts.gov/sites/default/files/bornedonrielaopn.pdf
http://www.tncourts.gov/sites/default/files/bornedis.pdf

EMPLOYMENT: Undocumented employee has standing to bring retaliatory
discharge claim; trial court erred in granting defendant summary judgment in
reliance upon theory that employee must be capable of employment in order to
have claim for retaliatory discharge under Tennessee law, and such theory is not
sufficient to bar unauthorized alien from bringing claim of retaliatory discharge
against employee to protect his or her right to file claim for workers
compensation; all remedies available to U.S. citizens may not be available to
successful unauthorized alien litigant, but it is not necessary to address at this time
issue of damages available to unauthorized aliens in Tennessee. Torres v.
Precision I ndustries P.I . I nc., 8/5/14, WS, Summers, 14 pages.
http://www.tncourts.gov/sites/default/files/torresopn.pdf

EMPLOYMENT: When plaintiff, car salesman, filed suit for retaliatory
discharge under common law and Tennessee Public Protection Act alleging that
his former employer fired him because he refused to be involved when
prospective customers test drove vehicles and informed his supervisor that
dealership was breaking law when it allowed test drives in cars that did not have
dealer license plates or adequate proof of financial responsibility, trial court
properly granted defendants summary judgment; dealerships policy and actions
with respect to test drives while violations of statutory prescriptions do not
implicate matter of fundamental or significant public concern so as to overcome
employment-at-will doctrine; trial court correctly held that evidence was
insufficient to create genuine issue of material fact as to whether alleged exercise
of protected activity was either sole factor or substantial factor in employers
decision to terminate plaintiffs employment when person who made decision to
fire plaintiff testified by affidavit that when he made decision to end plaintiffs
employment, he was not aware that plaintiff had refused to go on test drives
without registration plates, or without proof of registration or proof of insurance in
vehicle. McMillin v. Ted Russell Ford I nc., 7/31/14, ES, Susano, 20 pages.
http://www.tncourts.gov/sites/default/files/mcmillinplopn.pdf

TAXATION: In cases in which five separate groups of Pennsylvania-domiciled
companies filed five separate tax refund claims in which each challenged
imposition of retaliatory insurance premium taxes by Tennessee Department of
Commerce and Insurance pursuant to TCA 56-4-218, Pennsylvanias surcharges
or assessments for three Workmens Compensation funds are imposed upon
Tennessee-domiciled insurance companies doing business in Pennsylvania and,
therefore, fall within Tennessees retaliatory insurance premium tax statute;
Pennsylvania statute makes clear fact that insurance companies, not insured
employers, are ultimately responsible for surcharges at issue. Editors note: Four
companion cases are American Casualty Company of Reading, Pennsylvania v.
State; Chartis Casualty Co. v. State; Old Republic Insurance Co. v. State; and
Valley Forge Insurance Co. v. State. Ace American I nsurance Co. v. State,
7/31/14, MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/aceamerican_ins.co_.opn_.pdf

TAXATION: In cases in which five claimant insurance companies challenged State of
Tennessees calculation of retaliatory tax, alleging that New York law required charges
at issue to be passed on to policy holder, not insurance company, so charges should not
be included in retaliatory tax calculation, four of charges New York Workers
Compensation Board Charge for Administrative Expenses, Special Disability Fund
Charge, Reopened Case Fund Charge, and New York Workers Compensation Security
Fund Charge should be included in retaliatory tax calculation payable by claimant
insurance companies; remaining two charges Fire Insurance Fee and Charges for
Motor Vehicle Law Enforcement Account and Motor Vehicle Theft and Insurance
Fraud Prevention Fund should not be included in retaliatory tax calculation. Editors
note: Four companion cases are Chubb Indemnity Insurance Co. v. State; Great
American Insurance Company of New York v. State; Northern Insurance Company of
New York v. State; and Zurich American Insurance Co. v. State. American Home
Assurance Co. v. State, 7/31/14, MS, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/americanhomeassuranceco.opn_.pdf

FAMILY LAW: Trial court erred in denying fathers petition to modify parties
residential parenting schedule where father established material change in
circumstances justifying change in residential parenting schedule trial court
applied incorrect standard and incorrect reasoning in determining whether childs
enrollment in preschool constituted material change in circumstances affecting her
best interest and applied incorrect standard by implicitly requiring father to prove
that changes in parties living and working conditions were detrimental to child or
reflected negatively on mother; given low threshold for establishing material
change in circumstances for proposed modification to residential parenting
schedule, evidence preponderated against trial courts finding that change in
parenting time does not rise to the level of a material change in circumstances that
would justify changing the residential parenting time in the best interest of the
child. I n re Lauren S., 8/5/14, WS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/inrelaurensopn.pdf

CIVIL PROCEDURE: When general sessions court entered final judgment
against garnishees for full amount of judgment debtors debt, even though
garnishees had filed answer and informed court of amount of their payments made
to judgment debtor, judgment for full amount of debt is vacated because no
conditional judgment was entered, garnishees were not provided with notice of
conditional judgment, and garnishees answered and properly informed court
regarding amount of their payments made to judgment debtor. Emrick v. Moseley,
7/30/14, ES at Nashville, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/emrickalfred.opn_.pdf

CIVIL PROCEDURE: Motion for summary judgment filed after written notice
of nonsuit has been filed does not preclude plaintiffs right to take voluntary
dismissal pursuant to TRCP 41; in order to divest plaintiff of right to take
voluntary dismissal pursuant to TRCP 41.01, motion for summary judgment must
be filed prior to date that plaintiff files his or her notice of voluntary dismissal.
Ewan v. Hardison Law Firm, 7/31/14, WS, Stafford, 20 pages.
http://www.tncourts.gov/sites/default/files/ewandopn_0.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In attempted murder case, trial judge abused
discretion in granting defendants motion to suppress his statement to police when
police did not overreach when questioning defendant during his interrogation
at police station, defendant clearly explained what happened, he recounted timing
of his stealing utility vehicle, location of theft, and his subsequent activities of
stealing gas and running over victim, and he assisted officer in creating map of
scene of stabbing, offering street names and names of local establishments; trial
courts finding that defendants statements displayed such incompetence that
further questioning by police constituted overreaching is contrary to evidence
presented at suppression hearing while officer was aware that defendant had
been diagnosed with bipolar disorder and schizophrenia and that he acted odd,
according to defendants expert, defendant attempted to hide and downplay his
psychosis, and while he mentioned that he was a mental health patient, he stated
he had completed ninth grade, he appeared competent during interview, and he
acted otherwise appropriately for most of duration of his interaction in police
presence. State v. Beasley, 7/31/14, Nashville, Wedemeyer, 19 pages.
http://www.tncourts.gov/sites/default/files/beasleykevinropn.pdf

CRIMINAL PROCEDURE: In facilitation of murder case, trial judge did not err
in denying defendants motion to suppress her statement to police when although
defendant was emotional and tired at times, she was articulate in her own way and
responsive to questions asked, she was read her Miranda rights often, and officers
did not purposefully expose her to threats or place her in visitation booth in order to
force confession. State v. Kennedy, 7/30/14, Knoxville, Tipton, 87 pages.
http://www.tncourts.gov/sites/default/files/kennedyjessicaopn.pdf

CRIMINAL PROCEDURE: In murder case, trial judge did not err in denying
defendants motion to suppress various items of evidence obtained by police
without search warrant when defendants status as parolee meant that search
warrant was not needed for search and seizure of defendants telephone records,
his person, and his vehicle. State v. Cotham, 7/31/14, Nashville, Glenn, Bivins not
participating, 45 pages.
http://www.tncourts.gov/sites/default/files/cothamcoyopn.pdf

CRIMINAL PROCEDURE: In case in which bonding company executed as
surety appearance bond for defendant on several cases, defendant failed to appear,
general sessions court forfeited bond and issued scire facias and capias for
defendants arrest, bonding company physically surrendered defendant to trial
court and requested that it be relieved as surety, trial court denied surrender and
released defendant on same bond, defendant subsequently failed to appear at
another court hearing, trial court entered final forfeiture judgment against bonding
company, and bonding company filed motion to alter or amend forfeiture
judgment against it, arguing that it should be exonerated of bond because it
lawfully surrendered defendant, trial court erred in denying surrender and
releasing defendant over suretys objection when bonding company met
requirements of TCA 40-11-132; because trial courts judgment was not final
judgment, bonding company was not required to seek interlocutory appeal to
imbue appellate court with jurisdiction to hear appeal. State v. Caldwell, 7/31/14,
Nashville, Wedemeyer, 9 pages.
http://www.tncourts.gov/sites/default/files/caldwellalisciaopn.pdf


REVENUE RULINGS

TAXATION: Application of Tennessee sales and uses tax exemption under TCA
67-6-314(1). Department of Revenue Letter Ruling 14-02, 6/18/14, 4 pages.
http://www.tn.gov/revenue/rulings/sales/14-02.pdf

TAXATION: Application of Tennessee franchise tax to group of affiliated
entities making consolidated net worth election. Department of Revenue Letter
Ruling 14-03, 6/19/14, 9 pages.
http://www.tn.gov/revenue/rulings/fae/14-03fe.pdf

TAXATION: Application of Tennessee business tax to provider of vascular
access therapy and related services as well as intravenous therapy certification
classes. Department of Revenue Letter Ruling 14-04, 6/23/14, 6 pages.
http://www.tn.gov/revenue/rulings/fae/14-01fe.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