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The Hamilton Firm is pleased to announce that two of its four trial lawyers have again been recognized by Thomson Reuters Super Lawyers Magazine as among the state’s Top Rated Plaintiffs’ Personal Injury Attorneys. Both Hubert Hamilton and Patrick Cruise have achieved Super Lawyer status for the current year, as published in Mid-South Super Lawyers, which recognizes top ranked attorneys in Alabama, Arkansas, Mississippi and Tennessee who have attained a high degree of peer recognition and professional achievement.
Hu Hamilton also has the unique distinction of again being recognized as a Top Rated Plaintiffs’ Personal Injury Attorney in Georgia, as just announced by Georgia Super Lawyers. Mr. Hamilton is licensed in Georgia, North Carolina and Tennessee.
The selections by Thomson Reuters are made by the research team at Super Lawyers. Each year, the team undertakes a multiphase selection process that includes a statewide survey of lawyers, an independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. Only five percent of attorneys are selected to the Super Lawyers list.
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.
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.
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.
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.
As we look forward to cooler weather this fall, we should be reminded we are more likely to encounter fog on our highways. Fog is prevalent in areas where moisture is abundant, such our southern rivers and lakes. However, fog can occur anywhere. Abundant condensation nuclei enhances the formation of fog. Fog may form (1) by cooling air to its dew point, or (2) by adding moisture to air near the ground. Fog can also be be prevalent in industrial areas where byproducts of combustion provide a high concentration of these nuclei. Fog often develops along I-75 and other roads close to the Hiwassee River in Tennessee, near Bowater and Arch/Olin Chemical. Be careful.
Here are a few simple guidelines for driving in foggy conditions:
Although the circumstances were unusual, the Tennessee Supreme has clarified that under Tennessee law a wrongful death claim did not belong to the decedent, but passed to decedent’s husband upon her death, Linda Beard v. James William Branson and Trinity Hospital, L.L.C. The husband had filed a pro se wrongful death malpractice lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, he retained an attorney and filed an amended complaint. The decedent was also survived by two daughters. The defendants filed motions for summary judgment arguing that the husband’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio. They contended that the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was therefore time-barred. The trial court denied the summary judgment motions and held a jury trial where the jury found both defendants liable and awarded damages. The Court of Appeals had reversed and held that the claim belonged to the decedent and therefore the husband could not file a lawsuit without a lawyer.
This all started back in 2004, when Ruth Hartley was admitted to Trinity Hospital in Erin, Tennessee for elective colon surgery. She developed complications from the surgery and died. It is a sad commentary on our judicial system that this case has gone on for 13 years. A unanimous Supreme Court held that under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106, reversing the Court of Appeals, but sending the case back to the intermediate appellate court for consideration of other issues.
The opinion by Justice Holly Kirby is recommended reading, as she discusses Tennessee’s confusing statutory wrongful death scheme, which she describes as “a hybrid between the survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.'”
Typically, many laws passed by the Georgia legislature take effect July 1st. This year, the only substantive change affecting some civil lawsuits is a minor change to the venue provisions of the State Tort Claims Act. Senate Bill 126 amended the Code section relating to venue for tort actions against the State by adding certain specifications. Currently, under O.C.G.A. § 50-21-28, tort actions against the state must be brought in the state or superior court of the county where the loss occurred; SB 126 requires that tort actions against the state be brought in the state or superior court of the county where the tort that gave rise to the loss occurred. The bill also codified longstanding case law indicating that wrongful death actions against the state may be brought in the county where the tort giving rise to the loss occurred or the county where the decedent died. This bill resulted from the State’s concern that a 2015 case interpreted the “where the loss occurred” to allow plaintiffs to file tort claims act cases in any county where they experienced symptoms from the injuries sustained in the incident giving rise to the tort claim or in any county where they incurred medical bills for the injury. The new provisions only affect causes of action filed on or after July 1, 2017.
Here is the full text of the amended statute, § 50-21-28:
“All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the tort giving rise to the loss occurred; provided, however, that, wrongful death actions may be brought in the county wherein the tort giving rise to the loss occurred or the county wherein the decedent died, and provided, further, that in any case in which an officer or employee of the state may be included as a defendant in his or her individual capacity, the action may be brought in the county of residence of such officer or employee. All actions against the state for losses sustained in any other state shall be brought in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.”
For over two years, the Federal Motor Carrier Safety Administration has been considering requiring trucking companies to carry more liability insurance to protect the public. Unfortunately, under the Trump administration, FMCSA has just withdrawn its November 28, 2014 advance notice of proposed rulemaking (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers. FMCSA is authorized to establish minimum levels of financial responsibility for motor carriers at or above the minimum levels set by Congress. In the ANPRM, FMCSA sought public comment on whether to exercise its discretion to increase the minimum levels of financial responsibility, and, if so, to what levels. Currently motor carriers, i.e. trucking companies, only have to carry $750,000 of liability insurance. The agency was considering increasing the minimum limits to as much as $5,000,000. FMCSA now claims that after reviewing all public comments to the ANPRM, it has determined that it has insufficient data or information to support moving forward with a rulemaking proposal, at this time. That means they have bowed to political and lobbying pressure from the trucking industry and backed down, leaving the motoring public at risk from financially irresponsible operators who cause catastrophic wrecks.