All posts by Injury & Disability Lawyers

Georgia Court of Appeals Enforces One-Year Contractual Limitation Period Against Injured Tenant

By | Premises Liability, Uncategorized | No Comments

In Langley v. MP Spring Lake, LLC, 2018 Ga. App. LEXIS 258 (5/1/18), the Court of Appeals affirmed dismissal of the plaintiff’s personal injury case against her landlord, based on a provision in her lease which required “any legal action” against management or owner within one year of the date the claim or cause of action arose.  The plaintiff had alleged that she fell in a common area of the apartment complex when her foot got caught on a crumbling portion of a curb on March 3, 2014.  She did not file suit until March 3, 2016, exactly two years later.  However, the lease she signed contained the following clause:

“Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.”

The landlord moved for summary judgment, which was granted by the trial court, and the Court of Appeals quickly rejected the plaintiff’s arguments that the clause was ambiguous and contrary to public policy, and affirmed:

“. . . our Supreme Court’s explicit holding that parties to a contract have the power to “agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law,” leads us to conclude that the unambiguous provision at issue is enforceable. Accordingly, any cause of action that accrued during the duration of Langley’s lease—including a cause of action for personal injuries—was subject to the one-year contractual limitation period.””

Cert has been applied for, but unless the Supreme Court overrules this decision, we are likely to see more such language in apartment leases throughout Georgia. Lawyers should now be careful to review leases before deciding whether or not to accept representation in a Georgia premises liability case.

FMCSA expands Personal Conveyance exemption to Hours of Service Rules

By | Trucking | No Comments

Effective immediately, the Federal Motor Carrier Safety Administration (FMCSA) has said it will allow drivers to use personal conveyance status to get to the nearest safe parking spot/rest location after hours are exhausted by a shipper/receiver, or off-duty periods are interrupted by law enforcement.  Will this expansion of the “personal conveyance” exemption be abused by some drivers?  Probably, and so the logs and actual movements of tractor trailers should be carefully examined in any case where time and distance traveled before a wreck looks suspicious.

“The movement from a shipper or receiver to the nearest safe resting area may be identified as personal conveyance,” text of the clarification reads, “regardless of whether the driver exhausted his or her HOS, as long as the CMV is being moved solely to enable the driver to obtain the required rest at a safe location.” (p. 7)

The new interpretation of when it is legal to use a truck for personal conveyance allows use of personal conveyance whether the truck is loaded or not.

Generally, personal conveyance use has not been allowed for any move intended to further the direction of the current or next dispatch, and is intended as truly personal use of the truck, outside the stream of commerce. Further clarifying the change in personal conveyance interpretation, the agency noted it recognized that “the driver may not be aware of the direction of the next dispatch and that in some instances the nearest safe resting location may be in the direction of that dispatch. If the driver proceeds to the nearest reasonable and safe location and takes the required rest, this would qualify as personal conveyance.”

Any driver using personal conveyance should “annotate on the log if he/she cannot park at the nearest location and must proceed to another location.”

Personal conveyance is also newly specifically allowed in other similar circumstances, the agency noted — when a safety official (such as a law enforcement officer) requires a driver to move during an off-duty period. Such a use should be “no farther than the nearest reasonable and safe area to complete the rest period,” according the Federal Register publication.

Travel to home after working “offsite,” as long as the driver’s home is not in the direction of the current or next dispatch, is also explicitly allowed as personal conveyance by the new guidance.

Tennessee Court of Appeals Affirms Severe Spoliation Sanction Against Plaintiff

By | Uncategorized | No Comments

A recent opinion, Gardner v. R & J Express, LLC, 2018 Tenn. App. LEXIS 248 by the Tennessee Court of Appeals demonstrates that spoliation is not a one-sided affair. Plaintiffs may be subject to sanctions as well as defendants who do not preserve material evidence. Mr. Gardner was an owner/operator pulling a trailer owned by R & J Express. His wife was a passenger in the tractor.  The tandem axle on the trailer allegedly became loose, while they were on the highway, causing the tractor-trailer to overturn. The plaintiffs’ tractor was damaged and Ms. Gardner was seriously injured.

The plaintiffs filed suit against R & J alleging that the defendant was negligent in its inspection and maintenance of the trailer, and that it failed to comply with federal motor carrier safety standards.  R & J filed an answer denying all allegations of negligence, and then, months later, filed a motion for spoliation sanctions against the plaintiffs, arguing that “Gardner had discarded his tractor by allowing the insurance company to take possession of it, such that he no longer knew of its whereabouts”, and that their “expert needed to inspect the tractor in order to determine whether there existed a mechanical problem that may have caused the accident.”

The plaintiffs’ tractor had been badly damaged in the wreck, and so their insurance company had settled up with them after the wreck, and paid the property damage claims.  As typically occurs, when a vehicle is “totaled”, the insurance company took possession of the tractor.  At a hearing the trial court determined “that R & J had been “severely prejudiced” in its ability to defend against the Gardners’ claims due to the unavailability of the tractor, which the court described as a “key piece of evidence.””  The court ordered the plaintiffs to locate and produce the tractor or their complaint would be dismissed.  Unfortunately for the plaintiffs the tractor had been dismantled and sold for salvage by their insurance company. The trial court dismissed the complaint with prejudice, even though R & J did not request preservation of the tractor until 242 days after the accident had occurred.

Dismissal of a claim is a very severe sanction.  One of the factors the trial apparently considered in imposing such a severe sanction was a spoliation letter plaintiffs’ counsel had sent to the defendants shortly after being retained and only a month after the accident.  “[T]heir attorney sent a letter to Defendant informing him of Plaintiffs’ intention to file an action and Defendant’s responsibility to preserve the relevant evidence. After sending the preservation letter to the Defendant, Plaintiffs signed over the title to the tractor and the tractor was destroyed.”

The Court of Appeals concluded that “[c]learly, Mr. Garner and his counsel should have known that the tractor was relevant to the foreseeable litigation,” and affirmed dismissal of the complaint.

Gardner highlights an aspect of Tennessee law that differs from common law concerning spoliation.  Rule 34A.02 does not require “intent” when it comes to spoliation.  At common law, intent was a crucial element of spoliation; however, in Tennessee intent is not required, and instead, a totality of the circumstances analysis is employed.  (See Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015)). Whether the conduct was intentional is only one of the factors to be considered by the court. In fact, Rule 34A.02 specifically addresses this point: “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.”

The relevant factors to be considered by the trial court can be summarized as follows: (1) culpability; (2) prejudice; (3) whether party knew or should have known the evidence was relevant; and, (4) the least severe sanction available to remedy the prejudice.

Gardner case is a must-read for any attorney attempting to handle cases in Tennessee in involving tractor trailers and other commercial vehicles. Besides just giving the adverse expert an opportunity to inspect the damage to the tractor, the data from the tractor’s “black box” or event data recorder (EDR) should have been downloaded and preserved.  It would have provided crucial information as to the speed of the unit at the time of the accident, including when and whether the brakes were applied, and whether the tractor was on cruise control.   This case emphasizes the importance of hiring experts and investigators on behalf of the plaintiff very quickly, and preserving all evidence, including data from the Plaintiff’s vehicle.

Georgia Supreme Court Upholds $40 Million Fatal Jeep Fire Award, Finding No Error in Admission of Testimony About CEO’s $68 Million Compensation

By | Uncategorized | No Comments

The Georgia State Supreme Court has unanimously upheld a $40 million award to the family of a four-year-old boy killed in 2012 when the 1999 Jeep Grand Cherokee in which he was riding was rear-ended and burst into flames, Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (3/15/18).

In 2015, the jury returned a verdict of nearly $150 million in favor of the parents, but the trial court suggested a remittitur to $40 million, which was accepted by the plaintiffs. The Jeep’s fuel tank had been placed near the back of the vehicle, which plaintiffs said made it vulnerable to rear-end collisions.  Four-year-old Remington Walden was a rear seat passenger who was trapped in the Jeep and burned to death.

The Supreme Court said that “evidence showed that Chrysler had long known that mounting a gas tank behind the rear axle was dangerous. Evidence also showed that Chrysler’s placement of the gas tank behind the rear axle was contrary to industry trends, which favored placing tanks in front of the rear axle.”

Fiat Chrysler lawyers contended that the fire did not cause boy’s death, but blamed the driver of the pick-up truck that rear ended the Jeep. On appeal, the defendant contended it was prejudicial to allow testimony about Chief Executive Sergio Marchionne’s compensation, which totaled more than $68 million, into evidence at trial. They also denied there was a safety issue and claimed the vehicles were no more dangerous than comparable SUVs built at the time. However, the National Highway Traffic Safety Administration (NHTSA) has linked more than 50 deaths to the Jeep fuel-tank issue.

Fiat Chrysler had to recall 1.56 million 2002-07 Jeep Liberty and 1993-2004 Jeep Grand Cherokee SUVs in June 2013 to address fire risks and they agreed to install trailer hitches to protect the gas tanks. The recall and a “customer satisfaction campaign” that covered the Jeep in the fatal Georgia crash occurred after CEO Marchionne held private talks with senior government officials in 2013.

The Supreme Court concluded “not that compensation evidence is always admissible to show the bias of an employee witness, or that it is never admissible, but that such evidence is subject to the Rule 403 analysis weighing the evidence’s unfair prejudice against its probative value.” And, “because Chrysler did not raise a Rule 403 objection to the compensation evidence at issue” the Court concluded “that under the particular circumstances of this case—where the jury’s evaluation of the bias and credibility of Chrysler’s CEO were central to the allegations in the case because the CEO was alleged to have specifically interjected himself in a federal safety investigation to the detriment of the plaintiffs—we cannot say that the prejudicial effect of the evidence so far outweighed its probative value that its admission was clear and obvious reversible error.”

Therefore, although the Supreme Court disagreed with the rationale of the Court of Appeals, it affirmed its judgment, and upheld the $40 million award.


Does the Woodmere School Bus Driver’s Conviction of Felonies Lift the Caps on Noneconomic Damages?

By | Tort Reform | No Comments

Now that former Durham Transportation school bus driver Johnthony Walker has been found guilty of six counts of criminally negligent homicide by a Hamilton County jury, the question arises as to whether the felony convictions lift Tennessee’s caps on noneconomic damages for victims of his negligence.  Walker was driving 37 children from Woodmere Elementary School when the wreck occurred on a winding Chattanooga road on November 21, 2016.  Six children were killed.

Walker was also was convicted of 11 counts of reckless aggravated assault and seven counts of assault, and found guilty of reckless endangerment, reckless driving and using his phone.

Tennessee law limits noneconomic damages to a maximum of $750,000 in most cases, under a law passed by the Republican dominated legislature and signed by Governor Haslam in 2011. Economic damages not capped, however. Economic damages include loss of earnings. So for the children killed in the school bus crash, damage awards would appeared to be limited to $750,000 plus a projection of the child’s future earnings potential, reduced to present cash value.  However, there is an exception, where the defendant’s negligent act or omission is considered to be a criminal act that results in the conviction of a felony.

TCA § 29-39-102(h) provides that:

“The limitation on the amount of noneconomic damages imposed by subdivision (a)(2) and subsections (b)-(e) shall not apply to personal injury and wrongful death actions:

 (4)  If the defendant’s act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or under federal law, and that act or omission caused the damages or injuries.”

So, at least as to Walker, the $750,000 cap no longer applies.  But what about his employer and other defendants who have been sued by the families of the victims?  Do the caps still apply?

TCA § 29-39-102(j) states that:

“The liability of a defendant for noneconomic damages whose liability is alleged to be vicarious shall be determined separately from that of any alleged agent, employee or representative.”

Tennessee’s appellate courts have yet to rule on whether the exemptions from the caps apply to defendants other than the person convicted of the felony. However, it would seem, that at a minimum, the company that employed the felon should be held fully responsible for his actions and misdeeds, as they selected and hired him and were responsible for training and supervising him.  The meaning of subsection (j) has not yet been interpreted by the Tennessee Supreme Court, but it does not appear to explicitly excuse an employer from full liability for all noneconomic damages caused by its employee found guilty of a felony.

Ahlborn is Resurrected: Medicaid Subrogation Again Limited to Settlement Funds Attributable to Medical Costs

By | Subrogation | No Comments

Ahlborn has been brought back to life by Congress. The Bipartisan Budget Act (BBA) of 2018, just passed by Congress and signed into law by the President on February 9th, permanently repeals a provision from 2013 that would have allowed states to recover medical expense subrogation claims from any portion of a Medicaid beneficiary’s legal settlement. In other words, the law contains an outright repeal of language from an earlier budget bill that had overturned a Supreme Court decision in Arkansas Department of Health and Human Services et al. v. Ahlborn, 547 U.S. 268 (2006).

In Ahlborn, the Supreme Court held that Medicaid could only seek reimbursement from Medicaid enrollees injured by a third party from the portion of a settlement attributable to medical costs. The Ahlborn decision was universally lauded as promoting fair and proportionate settlements for Medicaid recipients. But, in 2013, the BBA included a provision overturning Ahlborn. This granted Medicaid a right of first recovery for full reimbursement of covered medical costs before plaintiffs could receive any recovery for lost wages, non-economic damages, or any other type of recovery. That was not fair, and sometimes gave Medicaid recipients little incentive to even seek recovery of damages from a third party.

Implementation of the 2013 language was delayed for several years, thanks primarily to lobbying by the American Association for Justice. The second and final delay expired on October 1, 2017, effectively overturning Ahlborn. However, repeal of the overturn was finally secured as part of the budget deal recently reached by the House and Senate.  From this point forward, states cannot take more than their fair share of a Medicaid recipient’s legal settlement in a tort case, but they can be reimbursed from the portion of any settlement attributable to medical costs.

The 2018 BBA also extends third party liability requirements to CHIP benefits (Children’s Health Insurance Program) for the first time, however. So as we see states implementing the new provisions of the law, reimbursement for CHIP benefits may also have to be considered when settling a case involving a client eligible for CHIP.

2018 Roadmap of State Highway Safety Laws

By | Highway Safety | No Comments

Advocates for Highway and Auto Safety, an alliance of consumer, medical, public health, and safety groups and insurance companies and agents, recently released its 15th annual Roadmap of State Highway Safety Laws, detailing which states have optimal traffic safety laws and which laws need to be enacted.  The organization’s stated mission is the adoption of federal and state laws, policies and programs that prevent motor vehicle crashes, save lives, reduce injuries, and contain costs. According to the report, more than 400 additional laws are needed across all states and D.C. to fully meet recommended optimal safety laws.

The report grades states and the District of Columbia in five categories: occupant protection, child passenger safety, teen driving (graduated driver licensing programs), impaired driving and distracted driving. States received an overall score combining the five categories.

Occupant protection

Three optimal laws regarding occupant protection are recommended: primary enforcement front seat belt law, primary enforcement rear seat belt law and all-rider motorcycle helmet law.

According to the National Highway Traffic Safety Administration, nearly 15,000 lives of passengers ages 5 and older were saved in 2016. An addition 2,456 could have been saved with 100 percent participation of safety belts.

Child passenger safety

Two optimal laws in this category are recommended – rear facing through age 2 and booster seats. Booster seat laws “require that children who have outgrown the height and weight limit of a forward-facing safety seat be placed in a booster seat that should be used until the child can properly use the vehicle’s seat belt, when the child reaches 57 inches in height and age 8.”

 Teen driving

Advocates recommends six laws:

  • Minimum age of 16 for learner’s permit
  • Six-month holding period provision
  • 50 hours of supervised driving provision
  • Nighttime driving restriction provision
  • Passenger restriction provision
  • Age 18 for unrestricted license

Impaired driving

Three optimal laws for impaired driving are recommended: ignition interlock devices for all offenders, child endangerment laws, and open container laws.

According to MADD, ignition interlock laws have stopped more than 1.77 million attempts to drive while drunk. A University of Pennsylvania study reveals that ignition interlock laws reduced alcohol-involved crash fatalities by 15 percent.

Child endangerment laws increase DUI penalties when a minor child is in the vehicle. Every state except New Mexico, South Dakota and Vermont has adopted a child endangerment law.

Distracted driving

Advocates recommends that states adopt driver text messaging restrictions and graduated driver licensing (GDL) cellphone restriction laws to meet optimal distracted driving safety.

Only seven states have not banned text messaging for all drivers. But to date, only 19 states have yet to install a GDL cellphone restriction.

Overall scores

Tennessee, Georgia, Alabama and North Carolina fell in the middle of the pack, with a yellow rating as given to 31 states. A yellow rating required six to 10 of the 16 optimal laws,. Only six states and D.C. qualified for a green rating: California, Delaware, Louisiana, Oregon, Rhode Island and Washington.

No state got a green rating without a primary enforcement seat belt law covering passengers in all seating positions (front and rear), and no state got a green rating if it had repealed an existing all-rider motorcycle helmet law within the previous 10 years.

Thirteen states received a red rating, which indicates fewer than seven of the 16 optimal safety laws.


Tractor trailer safety

Although states were not graded on large truck safety laws, a small section in the beginning of the report addressing such laws was included.

“Available safety technologies such as speed limiting devices and automatic emergency braking (AEB) could already be preventing crashes and mitigating severity if they were required on the entire fleet,” the reports suggests. “Further, trucks should be equipped with underride guards to prevent horrific and violent crashes when a vehicle goes under the rear or side of a truck.”

Advocates also encourages the use of lane departure warning systems and advanced driving assistance systems in large trucks. Many of those technologies are already in place in newer trucks. However, they are not required and are often add-ons for an additional cost.

Click Here to View the Full Report


Essentials of Tennessee Tort Law: Personal Injury & Death Cases – A Quick Reference Guide for Lawyers

By | General | No Comments

The Statute of Limitations is ONE YEAR:

  • For “injuries to the person”, T.C.A. § 28-3-104(a)(1)(A).
    • Exception: Where criminal charges are brought against the defendant, the period of limitation is extended to two years if listed conditions are met, C.A. § 28-3-104(a)(2).
  • SOL tolled for minors, but statutes of repose will still apply, T.C.A. § 28-1-106.
  • In wrongful death cases, the cause of action accrues on the date of the negligent act or omission, which is NOT necessarily the date of death, Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829 (1872).
  • Medical malpractice:
    • One Year SOL is automatically extended 120 days by complying with the pre-suit notice requirements of T.C.A. § 29-26-121.
    • If the injury is not discovered within the one year period, the SOL can run from the date of discovery, T.C.A. § 29-26-116(a)(2).

Statutes of Repose:

  • Products Liability: Six years from date of injury, and within ten years from date the product was first purchased (exceptions for asbestos and silicone breast implants), T.C.A. § 29-28-103.
  • Construction deficiency causing injury: Four years after substantial completion, T.C.A. § 28-3-202, unless injury occurs during fourth year, T.C.A. § 28-3-203 adds 1 more year.
  • Medical malpractice cases: Three years, T.C.A. § 29-26-116(a)(3).

$750,000 cap on non-economic damages:

  • Increases to $1,000,000 for “catastrophic loss or injury” (spinal cord injury resulting in paraplegia or quadriplegia, amputation of two hands or feet, 3rd degree burns over 40% of the body), T.C.A. § 29-39-102(d).
  • Caps do not apply where there was specific intent to injure, falsification of records, influence of drugs or alcohol, or conviction of felony T.C.A. § 29-39-102(h).

Comparative Fault:

  • Modified comparative fault, Plaintiff must be less than 50% at fault, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
  • A defendant is only liable for the percentage of the plaintiff’s damages caused by that defendant’s negligence,
  • Non-parties can be added within 90 days of answer alleging such other person to be at fault even if the statute of limitations has expired, T.C.A. § 20-1-119.

Liability Insurance is not discoverable in state courts:

  • TRCP 26, Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2008).

UM/UIM coverage (policies issued in TN):

  • Does not stack, offset by liability limits.

 Products Liability:

  • Strict liability can be imposed on manufacturers and sellers under T.C.A. § 29-28-105.

Premises Liability:

  • Generally there must be an unsafe condition creating an unreasonable risk of harm, either created by the defendant, or that defendant knew or should have known about.
  • There is no real distinction between licensees and invitees under TN law. Social guests are owed a duty of reasonable care, Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984).

Medical Malpractice (Health Care Liability):

  • Attorney’s fees are limited to one-third, T.C.A. § 29-26-120.
  • Collateral sources cannot be recovered except for privately purchased insurance benefits, T.C.A. § 29-26-119.
  • Experts must come from TN or a contiguous state (with exceptions) and must have been practicing in that profession or specialty within one year preceding date of injury or wrongful act, T.C.A. § 29-26-115(b).
  • Locality rule applies, T.C.A. § 29-26-115(a)(1).
  • Complicated pre-suit notice, good faith requirements, T.C.A. §§ 29-26-121, 122.

Governmental Tort Liability:

  • Tort claims against the State (T.C.A. § 9-8-307), and against counties and cities (T.C.A. §29-20-403) are capped at $300,000 per claimant/$1,000,000 per occurrence.
  • Claims against the State must be filed with the Claims Commission.

Wrongful Death:

  • Scheme is a confusing “hybrid between the survival and wrongful death statutes”, T.C.A. § 20-5-102, 106, Beard v. Branson (Tenn. 2017).
  • Suit can be filed by personal representative, parent, surviving spouse (or children or next of kin if no surviving spouse), T.C.A. § 20-5-106, 107.
  • Damages include pecuniary value and consortium damages for next of kin (capped by T.C.A. § 29-39-102 at $750,000, or $1,000,000 for parent leaving minor child), T.C.A. § 20-5-113, Jordan v. Baptist Three Rivers Hospital, 984 S.W. 2d 593 (Tenn. 1999)

Punitive Damages:

  • Clear and convincing evidence, bifurcated trial, limitations on vicarious liability, capped at twice compensatory damages or $500,000, whichever is greater, subject to various exceptions including specific intent, falsifying records, being under the influence of drugs or alcohol, or conviction of felony, T.C.A. § 29-39-104.


  • Hospital liens are limited to one-third of the total recovery (T.C.A. § 29-22-101), and only include charges that were reasonable and necessary, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014)

PLEASE NOTE: This is intended only as a summary and quick reference guide for lawyers. It is not a comprehensive review of all applicable law and each practitioner should use it only as a starting point for further research.

If you are an attorney, and you would like to have a laminated copy of our Essentials of Tennessee Tort Law – Personal Injury and Death Cases, 2017 Ed., send an email to

Tennessee Supreme Court Upholds Traditional Collateral Source Rule: Defendants Cannot Introduce Evidence of Discounted Rates Paid by Plaintiffs’ Medical Insurer

By | Trial Practice, Uncategorized | No Comments

The Tennessee Supreme Court has unanimously declined to change the law on what evidence can be used to prove medical expenses in cases involving personal injury.

In Jean Dedmon v. Debbie Steelman et al., W2015-01462-SC-R11-CV (11/17/17), the Court has held that Tennessee law continues to allow plaintiffs to use full, undiscounted medical bills to prove their medical expenses instead of the discounted amounts paid by insurance companies, and defendants cannot introduce evidence of those insurance payments.

Jean Dedmon had sued for injuries she sustained in a car accident, and attached the bills from her hospital and doctors to her complaint. While the case was pending, the Tennessee Supreme Court issued its opinion in West v. Shelby County Healthcare Corporation, 459 S.W.3d 33 (Tenn. 2014), and held that based upon the specific provisions of Tennessee’s hospital lien statutes, T.C.A. §§ 29-22-101-107, the hospital’s lien was limited to the discounted amounts paid by the patients’ insurance companies.

After West, the defendants in Dedmon argued that the West decision also changed the law in Tennessee for all cases involving personal injuries, contending that personal injury plaintiffs who have insurance can no longer use the full medical bills to prove their medical expenses. The trial court agreed and limited the plaintiffs’ proof on medical expenses to the discounted payments the hospital and doctors had contractually agreed to accept from Mrs. Dedmon’s insurance company.

The plaintiffs appealed to the Court of Appeals, which reversed the trial court, holding that West does not apply in personal injury cases outside the context of the lien statute, Dedmon v. Steelman, 2016 LEXIS 386 (Tenn. App. 2016).  However, while plaintiffs who have insurance can use full, undiscounted medical bills to prove medical expenses, the Court of Appeals also said that defendants could use discounted insurance payments to prove that the undiscounted bills were not reasonable. That, of course, opens the door to collateral source evidence.

The Tennessee Supreme Court agreed that its holding in West was not intended to apply to all personal injury cases, but reversed the Court of Appeals on the collateral source issue, holding that insurance payments and other benefits received by plaintiffs that do not come from the defendant (benefits that come from “collateral sources”), may not be used to reduce the defendant’s liability to the plaintiff.

The Supreme Court explained that Tennessee has always followed the collateral source rule, and that it prevents defendants from telling juries about plaintiffs’ insurance and other such benefits.  So, after a thorough review, the Supreme Court declined to alter existing law in Tennessee, and held that the collateral source rule applies. Therefore, the plaintiffs may introduce evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her reasonable medical expenses, and the defendants may not introduce the discounted rates paid by Mrs. Dedmon’s insurance company for any purpose.  The defendants can use other evidence to show that the full medical expenses are not reasonable, however, as long as that evidence does not violate the collateral source rule.

One very interesting point made by the Court was: “it is evident that medical expenses cannot be valued in the same way one would value a house or a car,” since “health care services are highly regulated and rates are skewed by countless factors, only one of which is insurance.” The Court concluded that there is no reason to believe that discounted insurance rates are a more accurate way to determine the value of medical services.

The bottom line:  While the Supreme Court acknowledged that the collateral source rule is imperfect, it remains the law in Tennessee.


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