Disclaimer: This Document is intended for general information purposes only. Nothing contained in this document is legal advice, nor should it be relied upon as such.
Name of Preparers: Carl Wyatt, Robert Cox & Ed Wallis
Firm: Glassman, Wyatt, Tuttle & Cox, P.C.
City and State of Firm: Memphis, Tennessee
OVERVIEW OF TENNESSEE COURT SYSTEM
Court levels: 3
Trial courts: 95 counties-Divided into 31 Judicial Districts
Court of Appeal divisions: 3
Highest court: Tennessee Supreme Court
- Circuit Courts are courts of general jurisdiction in Tennessee in all cases where jurisdiction is not conferred upon another tribunal. (Tenn. Code Ann. §16-10-101)
- Circuit court judges hear civil and criminal cases and appeals of decisions from Juvenile, Municipal, and General Sessions Courts. The jurisdiction of circuit courts often overlaps that of the chancery courts. Criminal cases are tried in circuit court except in districts with separate criminal courts established by the General Assembly.
- A chancery court has all the powers, privileges and jurisdiction properly and rightfully incident to a court of equity. (Tenn. Code Ann. §16-11-101)
- A chancery court has exclusive original jurisdiction of all cases of an equitable nature, where the debt or demand exceeds fifty dollars ($50.00). It has no jurisdiction of any debt or demand of less value than fifty dollars ($50.00). (Tenn. Code Ann. § 16-11-103)
- A chancery court has jurisdiction over election contests within its division. (Tenn. Code Ann. § 2-17-101)
- Criminal Courts were established by the legislature to relieve circuit courts in areas with heavy caseloads. In addition to having jurisdiction over criminal cases, criminal court judges hear misdemeanor appeals from lower courts. In districts without criminal courts, criminal cases are handled at the trial level by circuit court judges.
- All jurisdiction relating to the probate of wills and the administration of estates, including the estates of decedents and of wards under guardianships or conservatorships and related matters. (Tenn. Code Ann. § 16-16-201)
General Sessions Court. Each county served by a general sessions court of limited jurisdiction,
which hears both civil and criminal cases:
Civil Jurisdiction— The amount in controversy shall not exceed $25,000. (Tenn. Code Ann. §
- There exists an automatic right for appeal from a judgment in General Sessions Court. The appeal is de novo review by a circuit court.
Criminal Jurisdiction— limited to preliminary hearings in felony cases and misdemeanor trials
in which a defendant waives the right to a grand jury investigation and
trial by jury in Circuit or Criminal Court.
- General Sessions is also vested with jurisdiction to try and determine and render final judgment in all misdemeanor cases brought before the court by warrant where the person enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial. (Tenn. Code Ann. § 40-1-109)
- Civil Jurisdiction— The amount in controversy shall not exceed $25,000. (Tenn. Code Ann. § 16-15-501 (d)(1))
Juvenile Court. A juvenile courthas exclusive original jurisdiction over the following
types of actions:
- Proceedings in which a child is alleged to be delinquent, unruly or dependent and neglected, or to have committed a juvenile traffic offense. (Tenn. Code Ann. § 37-1-103)
- Commitment of delinquent children to the department of children’s services. (See Tenn. Code Ann. § 37-1-137)
- Violation of the duty to report brutality, abuse, neglect or child sexual abuse. (See Tenn. Code Ann. § 37-1-403)
- Proceedings affecting delinquent juvenile’s parent or guardian for failure to take reasonable steps to control delinquent behavior or a child within the jurisdiction of the court. (See Tenn. Code Ann. § 37-1-174)
- Municipal Court. This court deals with violations of the laws and ordinances of the municipality.
- Veterans Court. This court provides a means to divert eligible veteran participants from the traditional criminal justice system and provide them support and rehabilitation through comprehensive substance abuse and/or mental health treatment; education; vocational programs; and community resource referrals for housing, childcare, and transportation, all while being judicially monitored. (Tenn. Code Ann. § 16-6-102)
Grand Divisions: For the administration of justice in the supreme court, the court of appeals and the court of criminal appeals, the state is divided into the three (3) grand divisions described in §§ 4-1-201 4-1-204. (Tenn. Code Ann. § 1-2-101 (a))
There are two types of Appellate Courts:
Tennessee Court of Appeal
- Jurisdiction: The jurisdiction of the court of appeals is appellate only and extends to all civil cases except workers' compensation cases and expedited, anonymous, juvenile appeals. (Tenn. Code Ann. §16-4-108 (a)(1))
- When sitting in sections of three (3) judges each, the concurrence of two (2) of the judges shall be sufficient to determine all matters coming before the section; and such action, without more, shall have effect, in all respects, as if the entire court of appeals had participated in the action. (Tenn. Code Ann. §16-4-109 (a))
- When the court sits en banc, the concurrence of seven (7) of the judges, and, when two (2) sections sit together, the concurrence of five (5) of the judges, shall so suffice and be effective. (Tenn. Code Ann. § 16-4-109 (b))
The Court of Appeal meets in three districts:
- Western Grand Division — located in Jackson and has jurisdiction over the following counties: Benton, Carroll, Chester, Crockett, Decatur, Dyer, Fayette, Gibson, Hardeman, Hardin, Haywood, Henderson, Henry, Lake, Lauderdale, Madison, McNairy, Obion, Shelby, Tipton and Weakley. (Tenn. Code Ann. § 4-1-204)
- Middle Grand Division — located in Nashville and has jurisdiction over the following counties: Bedford, Cannon, Cheatham, Clay, Coffee, Davidson, DeKalb, Dickson, Fentress, Franklin, Giles, Grundy, Hickman, Houston, Humphreys, Jackson, Lawrence, Lewis, Lincoln, Macon, Marshall, Maury, Montgomery, Moore, Overton, Perry, Pickett, Putnam, Robertson, Rutherford, Sequatchie, Smith, Stewart, Sumner, Trousdale, Van Buren, Warren, Wayne, White, Williamson and Wilson. (Tenn. Code Ann. § 4-1-203)
- Eastern Grand Division— located in Knoxville and has jurisdiction over the following counties: Anderson, Bledsoe, Blount, Bradley, Campbell, Carter, Claiborne, Cocke, Cumberland, Grainger, Greene, Hamblen, Hamilton, Hancock, Hawkins, Jefferson, Johnson, Knox, Loudon, Marion, McMinn, Meigs, Monroe, Morgan, Polk, Rhea, Roane, Scott, Sevier, Sullivan, Unicoi, Union and Washington. (Tenn. Code Ann. § 4-1-201).
Tennessee Court of Criminal Appeals
Jurisdiction: The jurisdiction of the court of criminal appeals shall be appellate
only, and shall extend to review of the final judgments of trial courts in:
- Criminal cases, both felony and misdemeanor;
- Habeas corpus and Post-Conviction Procedure Act proceedings attacking the validity of a final judgment of conviction or the sentence in a criminal case, and other cases or proceedings instituted with reference to or arising out of a criminal case;
- Civil or criminal contempt arising out of a criminal matter; and
- Extradition cases. (Tenn. Code Ann. §16-5-108 (a)(1)-(4)).
- The court of criminal appeals shall sit in panels of three (3) judges. The court may sit en banc, or in panels of five (5) or seven (7) judges, at any regular or special term, in the discretion of the presiding judge, entered upon the minutes of the particular court in each instance. In each such event, the concurrence of a majority of the judges is necessary to constitute a decision of the court. (Tenn. Code Ann. §16-5-107)
- Jurisdiction: The jurisdiction of the court of criminal appeals shall be appellate only, and shall extend to review of the final judgments of trial courts in:
Jurisdiction: The court has no original jurisdiction, but appeals and writs of error,
or other proceedings for the correction of errors from the inferior courts
and court of appeals, within each division. (Tenn. Code Ann. § 16-3-201 (b))
- The State Constitution states that the Supreme Court shall consist of five judges and the concurrence of three judges is necessary to a decision. (Tenn. Const. Art. VI §2)
- The court also has jurisdiction over all interlocutory appeals arising out of matters over which the court has exclusive jurisdiction. (Tenn. Code Ann. § 16-3-201)
- In addition, the Supreme Court has the power to designate and assign temporarily any judge or chancellor to hold, or sit as a member of any court, of comparable dignity or equal or higher level. (Tenn. Code Ann. § 16-3-502 (3)(a))
- The court also has the power to take affirmative and appropriate action to correct or alleviate any imbalance in caseloads among the circuit and chancery divisions of the state, any condition or situation adversely affecting the administration of justice within the state, and any further additional action that may be necessary to the orderly administration of justice within the state. (Tenn. Code Ann. § 16-3-502(3)(d)-(e))
- The Supreme Court meets in Jackson, Knoxville, and Nashville. (Tenn. Const. Art. VI, § 2). The Court also has met specially in other locations.
Transitory Actions may be brought in the county where the cause of action arose or in the
county where the defendant resides. (Tenn. Code Ann. § 20-4-101(a))
- If the plaintiff and defendant both reside in the same county, venue is proper in either the county where the cause of action arose or in the county of their residence. (Tenn. Code Ann. § 20-4-101 (b))
- Tort Action may be brought in the court within the venue of the district where the cause of action arose, when the plaintiff and defendant are both residents of the same county but reside in different districts within the venue of separate courts. (Tenn. Code Ann. § 20-4-102 (a))
- Actions In Rem may be brought in any county where the real property, or any portion of it, lies, or where any part of the personal property may be found. (Tenn. Code Ann. § 20-4-103)
- Business Entity as Party: When a corporation, partnership or individual has an office or agency in any county for the transaction of business, venue is proper in the county in which the office or agency is located. (Tenn. Code Ann. § 20-4-104)
- Foreign Corporation: When a foreign corporation is a party, venue may be in the county in which the cause of action arose or accrued. (Tenn. Code Ann. § 20-4-106)
Change of Venue: venue may be changed, at any time before trial, upon good cause shown.
- A court may issue an order for a special venire of jurors from another county if in its discretion it determines the action be necessary to ensure a fair trial. (Tenn. Code Ann. § 20-4-201 (1)-(2))
- Transitory Actions may be brought in the county where the cause of action arose or in the county where the defendant resides. (Tenn. Code Ann. § 20-4-101(a))
Offenses are prosecuted in the county where the offense was committed.
- Multiple Counties: if one or more elements of an offense are committed in one county, and one or more elements in another, the offense may be prosecuted in either county.
- Boundary: Offenses committed on the boundary of two or more counties may be prosecuted in either county.
All or Partly Outside State:
- An offense committed in part outside Tennessee may be prosecuted in any county in which an element of the offense occurs.
- An offense committed wholly outside Tennessee may be prosecuted in any Tennessee county in which the offender is found.
- Offenses are prosecuted in the county where the offense was committed.
Statute of Limitations
Below is a summary of civil statutes of limitations in Tennessee
Injury to Person
Personal Injury: 1 year. (Tenn. Code Ann. § 28-3-104(a)(1))
False imprisonment: 1 year. (Tenn. Code Ann. § 28-3-104(a)(1))
Injury to Personal Property
3 years. (Tenn. Code Ann. § 28-3-105(1))
Legal: 1 year from when cause of action accrued, maximum of 5 years from the wrong. (Tenn. Code Ann. § 28-3-104(c)(1))
Medical: 1 year from discovery, in no event longer than 3 years from date of occurrence, except for a foreign object left in the body. (Tenn. Code Ann. § 29-26-116(a)(1)-(3))
Written and oral: 6 years. (Tenn. Code Ann. § 28-3-109)
1 year. (Tenn. Code Ann. § 28-3-104(a)(1))
6 months (Tenn. Code Ann. § 28-3-103)
3 years. (Tenn. Code Ann. § 28-3-205(1))
Collection of Debt on Account
6 years (unless expressly provided). (Tenn. Code Ann. § 28-3-109(1)(3))
10 years. (Tenn. Code Ann. § 28-3-110(a)(2))
- Tolling: the statute of limitations can be extended by one of Tennessee’s tolling provisions. Tennessee Code Annotated Title 28, Chapter 1, section 10 provides a tolling period for any time in which the plaintiff is a minor (under the age of 18) or adjudicated incompetent at the time the cause of action accrued.
- The Discovery Rule: Delays the commencement of the statute of limitations to the date when injuries are discovered if they are not discovered immediately. The one-year window is deemed to start when the injuries are discovered or should have reasonably been discovered. (Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974)).
- Savings Statute:Allows a party to refile suit within one (1) year after a voluntary nonsuit, if the first action was commenced within the time limited by a rule or statute of limitation. (Tenn. Code Ann. § 28-1-105(a)). There is only one savings statute application so if a case has been previously dismissed without prejudice, the savings statute does not apply.
- Borrowing Statute:Where the statute of limitations of another state or government has created a bar to an action upon a cause accruing therein, while the party to be charged was a resident in such state or such government, the bar is equally effectual in this state. (Tenn. Code Ann. § 28-1-112)
Answer: A defendant must serve an answer within thirty (30) days after the service
of the summons and complaint upon him. (Tenn. R. Civ. P. 12.0
- The 30-day period is calculated by excluding the first day and including the last unless it is a weekend or holiday, then the date is excluded. (Tenn. R. Civ. P. 6.01)
- The court for cause shown may, in its discretion with or without motion or notice order the period enlarged if the request is made before the expiration of the original time period. Upon motion, made after the expiration of the specified period, permit the act to be done, where the failure to act was the result of excusable neglect (except to the extent stated under Rules 50.02, 59.01, 59.03, or 59.04). (Tenn. R. Civ. P. 6.02)
Pleading Challenges: Demurrers, pleas, and exceptions for insufficiency of a pleading are
not allowed. The Rules have adopted the federal practice of cutting off
pleadings after complaint and answer, except that a reply or answer by
a plaintiff is allowed in cases of counterclaim and cross-claim, and a
third-party answer is allowed where a third-party complaint is filed.
- The function of a demurrer, plea, etc., can be served by one of the pleadings allowed under Rule 7.01 or by motion. (Tenn. R. Civ. P. 7.03)
Dismissals: A plaintiff has the right to voluntarily dismiss the action any time
before the trial. A notice of dismissal operates as an adjudication upon
the merits when filed by a plaintiff who has twice dismissed in any court
an action based on or including the same action. (Tenn. R. Civ. P. 41.0.
- Dismissal with prejudice: bars any later lawsuit on the same claim.
- Dismissal without prejudice: allows the plaintiff to file a new lawsuit on the same claim any time before the statute of limitations runs, or within the time period afforded by the savings statute, if applicable.
Collateral Estoppel: Collateral estoppel is a judicially created issue preclusion doctrine
that promotes finality, conserves judicial resources, and prevents inconsistent
decisions. (Mullins v. State, 294 S.W.3d 529, 534 (Tenn. 2009)).
- It bars the same parties or their privies from relitigating in a later proceeding legal or factual issues that were actually raised and necessarily determined in an earlier proceeding. Thus, when an issue has been actually and necessarily determined in an earlier proceeding between the parties, that determination is conclusive against the parties in subsequent proceedings. Id (quoting Barnett v. Milan Seating Sys., 215 S.W.3d 828, 835 (Tenn. 2007)).
To prevail on a collateral estoppel claim, the party asserting it must
- That the issue to be precluded is identical to an issue decided in an earlier proceeding;
- That the issue to be precluded was actually raised, litigated, and decided on the merits in the earlier proceeding;
- That the judgment in the earlier proceeding has become final;
- That the party against whom collateral estoppel is asserted was a party or is in privity with a party to the earlier proceeding; and
- That the party against whom collateral estoppel is asserted has a full and fair opportunity in the earlier proceeding to contest the issue now sought to be precluded. (Mullins, 294 S.W.3d at 535) (quoting Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn. 2001)).
- The elements of a cause of action for negligence are: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to breach of that duty; (3) cause in fact; (4) proximate or legal cause; [and] (5) an injury or loss.” (McCall v. Wilder, 913 S.W.2d 150, 153 Tenn. 1995))
Standard of care: Everyone has a duty to use reasonable care to refrain from conduct that
will foreseeably cause injury to others. (Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997). “When the existence of a particular
duty is not a given or when the rules of the established precedents are
not readily applicable, courts will turn to public policy for guidance.” (Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 365 (Tenn. 2008). “Tennessee’s courts use
a balancing approach to determine whether the particular risk should give
rise to duty of reasonable care.”
Id. Policy-based factors courts may consider include:
- The foreseeable probability of the harm or injury occurring;
- The possible magnitude of the potential harm or injury;
- The importance or social value of the activity engaged in by the defendant;
- The usefulness of the conduct to the defendant;
- The feasibility of alternative conduct that is safer;
- The relative costs and burdens associated with the safer conduct;
- The relative usefulness of the safer conduct; and
- The relative safety of alternative conduct. Id at 365.
- Breach: If a defendant has not exercised reasonable care, then he has breached his duty to the plaintiff and is liable for negligence. (McCall v. Wilder, 913 S.W.2d 150, 153-54 (Tenn. 1995).
- Causation: Causation, or cause in fact, means that the injury or harm would not have occurred “but for” the defendant’s negligent conduct. (Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993)). Once it is established that the defendant’s negligent conduct, was, in point of fact, the actual cause of the plaintiff’s injury or harm, the focus then becomes whether the policy of the law will extend responsibility for that negligent conduct to the consequences that have occurred. Id. “Legal responsibility must be limited to those causes which are so closely connected with the result and are of such significance that the law is justified in imposing liability.” (Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992)).
- Comparative Negligence/Comparative Fault: In the modified form of comparative negligence, a plaintiff may recovery in proportion to the percentage of negligence attributed to them, but only if the plaintiff’s negligence either (1) does not exceed (50% jurisdictions) or (2) is less than (49% jurisdictions) of the defendant’s negligence. (McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992)). In McIntyre, the Tennessee Supreme Court adopted comparative negligence stating: “We therefore hold that so long as a plaintiff’s negligence remains less (49% rule) than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Id.
- Last Clear Chance Doctrine: The last clear chance doctrine once enabled a plaintiff to recover despite his or her contributory negligence; however, in Tennessee many traditional common-law tort concepts lost their independent existence after the Supreme Court embraced the doctrine of comparative fault in McIntyre. Thus, subsequent to McIntyre, the last clear chance doctrine has been merged into the comparative fault scheme and is simply a factor to consider when apportioning fault among the parties. (Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994)).
Assumption of risk: Primary assumption of risk technically is not a defense but rather a
legal theory which relieves defendant of duty which he might otherwise
owe to the plaintiff with respect to particular risks. (Perez v. McConkey, 872 S.W.2d 897, 902 (Tenn. 1994)).
- Implied assumption of risk: Implied assumption of risk in its primary sense applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. (Perez, 872 S.W.2d at 900).
- Secondary implied assumption of risk: Applies when the plaintiff, either reasonably or unreasonably, decides to encounter a known risk. When a plaintiff’s decision to take risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under comparative fault analysis. Id. When a plaintiff’s decision to encounter risk is reasonable, a plaintiff is not negligent. Id.
- Express assumption of risk: Express assumption of the risk refers to express release, waiver, or exculpatory clause, by which one party agrees to assume risk of harm arising from another party’s negligence. (Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn. 1994)). Express assumption of risk remains an absolute bar to recovery even in a system of comparative fault. Id.
- “Imminent Peril” or “Emergency Situation”: When a person has been put in sudden peril by the negligent act of another, and in an instinctive effort to escape from that peril, either suffers injury himself, or does injury to a third person, the negligent act is the proximate cause of the injury, and it is immaterial that under different circumstances he might or ought to have seen and avoided the latter danger. Thus, he is not chargeable with negligence. (Tennessee Elec. Power Co. v. Hanson, 79 S.W.2d 818, 822 (Tenn. Ct. App. 1934)). The Tennessee Supreme Court has ruled, however, that rather than existing independently, the principles of the emergency doctrine should impact the jury’s apportionment of fault between parties in an appropriate case. (Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994)).
- “Fireman's Rule”: Under the policemen and firemen’s rule, a citizen owes no duty of reasonable care to police officers or firemen responding to that citizen’s call for assistance. This rule is based on public policy consideration that citizens should be encouraged to summon aid from the police or firemen regardless of the citizen’s negligence, and should be assured that compensation for injuries suffered by the police or firemen in the line of duty will be borne by public as a whole. (Carson v. Headrick, 900 S.W.2d 685, 690 (Tenn. 1995)).
- Unavoidable accident: Tennessee has long recognized the doctrine of unavoidable accident. (Rickets v. Robinson, 169 S.W.3d 642, 646 (Tenn. Ct. App. 2004)). An unavoidable accident has been defined as an event that under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties. However, an instruction on the doctrine of unavoidable accident has become, in large part, unnecessary due to the adoption of comparative fault. Id.
Gross Negligence, Willful/Wanton, and Reckless Conduct
- Gross negligence: Gross negligence is defined as “a conscious neglect of duty or a callous indifference to consequences” or “such entire want of care as would raise a presumption of a conscious indifference to consequences.” (Thrasher v. Riverbend Stables, 2008 WL 2165194 (Tenn. Ct. App. 2008)).
Willful/wanton conduct: Early Tennessee case law provided a clear definition of the term “willful
and wanton” conduct. In
Schenk v. Gwaltney, 309 S.W. 2d 424 (Tenn. Ct. App. 1957), the court adopted language from
several jurisdictions to define the concept:
- In determining what constitutes a ‘willful’ or ‘wanton act’, we subscribe to the view that . . . it is sufficient if . . . the defendant intentionally acted in such a way that the natural and probable consequences of his act was to injure the plaintiff. . . . To hold one guilty of ‘willful’ or ‘wanton’ conduct, it must be shown that he was conscious of his conduct and with knowledge of existing conditions that injury would probably result, and with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some duty which produced the injuries. Id.
- More recently, in Fults v. Hastings, 1988 WL 54306 (Tenn. Ct. App. 1988), the court outlined three fundamental categories of negligence including “(1) no negligence, (2) ordinary negligence, and (3) gross negligence.” Id. at *3. The court noted that “some authorities recognize further classifications designated as ‘willful or wanton conduct’ . . . this special classification may be grouped with one or more of the three fundamental classes.” Id. Thus, while Tennessee does not have an independent tort of willful and wanton conduct, case law indicates that such conduct likely falls somewhere within the realm of gross negligence and recklessness.
- Recklessness: “Reckless” means that the actor is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. (Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992)).
Negligent Hiring, Supervision, Retention, and Entrustment
Negligent hiring, supervision, and retention:Tennessee courts recognize negligence of an employer in the selection
and retention of employees and independent contractors. A plaintiff in
Tennessee may recover for negligent hiring, supervision, or retention
of an employee if he establishes, in addition to the elements of a negligence
claim, that the employer has knowledge of the employee’s unfitness
for the job. (Phipps v. Walker, 1996 WL 155258 (Tenn. Ct. App. April 4, 1996). The torts of negligent hiring
and negligent supervision are based on the principle that a person conducting
an activity through employees is liable for harm resulting from negligent
conduct in the employment of improper persons or instrumentalities in
the work involving risk of harm to others. (Gates v. McQuiddy Office Products, 1995 WL 650128 (Tenn. Ct. App. 1995) (quoting Restatement (2d) of Agency
§ 213(b) (1958)).
- An action for negligent hiring requires something more than showing of past criminal conduct. There must be: (1) evidence of unfitness for a particular job; (2) evidence that the applicant for employment, if hired, would pose an unreasonable risk to others; (3) evidence that the prospective employee knew or should have known that the historical criminality of the applicant would likely be repetitive. (Phipps, 1996 WL 155258, at 3 (Tenn. Ct. App. Aug. 12, 2019)).
Tennessee’s Negligent Hiring and Retention law encourages employers to hire ex-convicts by protecting employers from
negligence claims for hiring or retaining an ex-offender who received
a “certificate of employability” as long as the employer knew
about the certification when the alleged negligence occurred. The ex-convict
must file a petition with the court in order to receive a certificate.
(Tenn. Code Ann. § 40-29-107).
- An employer who hires a person who had been issued a certificate of employability under this section, may be held liable in a civil action if: (1) The employee, after being hired, subsequently demonstrates a danger or is convicted of a felony; (2) The employee is retained after the demonstration of danger or the conviction; (3) The plaintiff proves by preponderance of the evidence that the person having hiring or firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony; and (4) The employer, after having actual knowledge of the employee’s demonstration of danger or conviction of a felony, was willful in retaining the person as an employee. Id.
Negligent entrustment: “Tennessee recognizes a cause of action for the negligent entrustment
of an automobile to one who is incompetent to use it. A party seeking
to establish a case for negligent entrustment must show four elements:
(1) an entrustment of a chattel; ( to a person incompetent to use it;
(3) with knowledge that the person is incompetent; and (4) that is the
proximate cause of injury or damage to another. Harper v. Chum, 83 S.W.3d
142, 146 (Tenn. Ct. App. 2001).
- For one to be negligent by entrusting a vehicle to another, “it must be affirmatively shown that the entruster had at that time knowledge of such facts and circumstances relating to the incompetency of the entrustee to operate the motor vehicle as would charge the entruster with knowledge of such incompetency.” (Harper, 83 S.W.3d 142, 146).
- Negligent entrustment does not create vicarious liability which would make the entrustor completely liable for the entrustee’s negligence. Thus, the jury must allocate the fault between the entruster and the entrustee under comparative fault principles. (Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004)).
- Vicarious liability admission: an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence such as negligent entrustment, hiring, or retention. (Jones v. Windham, 2016 WL 943722 (Tenn. Ct. App. March 11, 2016) (“We are of the opinion that the Defendant Employers’ proposed preemption rule is not in accord with our system of comparative fault and thereby inconsistent with existing Tennessee jurisprudence.”)). The Tennessee Supreme Court has granted review of this case, so the preemption rule may change.
- Under Tennessee law, alcohol-related accidents are generally regarded as being caused by the consumption of alcohol, rather than the sale or furnishing of alcohol. Tenn. Code Ann. § 57-10-101.
- There are two exceptions to this general rule: (1) selling the alcohol to a person known to be under the age of 21 years, and ( selling alcohol to a visibly intoxicated person and such person caused the personal injury or death. Id.
Joint and Several Liability
The Tennessee legislature has codified the abolishment of joint and several
liability in almost all circumstances in Tennessee. There are two exceptions
to this rule:
- To apportion financial responsibility in a civil conspiracy among two or more at-fault defendants who, each having the intent and knowledge of the other’s intent, accomplish by concert an unlawful purpose by unlawful means, which results in damage to the plaintiff; and
- Among manufacturers only in a product liability action, but only if such action is based upon a theory of strict liability or breach of warranty. (Tenn. Code Ann. § 29-11-107(a)-().
Wrongful Death and/or Survival Actions
- Wrongful death: Tenn. Code Ann. § 20-5-106 establishes that a cause of action can be brought by specified heirs of a person who dies as a result of “injuries received from another” or by “the wrongful act, omission, or killing by another.” Under a wrongful death cause of action, Tennessee courts have traditionally held that the action remains that of the decedent. Thus, the action may be filed only if the decedent would have had a cause of action against the wrongdoer if death had not ensued. (See Luna v. Clayton, 655 S.W.2d 893 (Tenn. 1983)).
- Survival statute: Where a plaintiff has a cause of action against a defendant and the defendant passes away, the plaintiff must name the personal representative of the estate as the defendant. (Tenn. Code Ann. § 20-5-103).
- Death of a party during pending action: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives no later than ninety (90) days after the death of the party. (Tenn. R. Civ. P. 25.01)
Vicarious Liability/Respondeat Superior
- Vicarious liability is the imposition of liability “on one person for the actionable conduct of another, based solely on a relationship between the two persons.” (Browder v. Morris, 975 S.W.2d 308, 322 (Tenn. 1998)). Vicarious liability is imputed legal responsibility for the tortious acts of another, even though the vicariously liable party was not negligent. Id.
- Respondeat superior: The doctrine of respondeat superior renders employers vicariously liable for the torts their employees commit while acting within the scope of their employment. (Tenn. Farmers Mut. Ins. Co. v. American Mut. Liability Ins. Co., 840 S.W.2d 933, 937 (Tenn. Ct. App. 199). In order to hold an employer liable, the plaintiff must prove: (1) that the person who caused the injury was an employee, (2) that the employee was on the employer’s business, and (3) that the employee was acting within the scope of his employment when the injury occurred. Id.
Agency: Determining whether a principal-agent relationship exists requires a
careful analysis of the facts. The Tennessee Supreme Court has held that
the following factors should be considered when determining whether a
person is an agent or an independent contractor: (1) the right to control
the conduct of the work; (2) the right of termination; ( the method of
payment; (4) the freedom to select and hire helpers; (5) the furnishing
of tools and equipment; (6) the self-scheduling of work hours; and (7)
the freedom to render services to other entities. (Tenn. Code Ann. §
50-6-102(12)(D)(i)); (See also
Beare Co. v. State, 814 S.W.2d 715, 718 (Tenn. 1991)).
Liability: To hold a principal liable for the acts of another under the doctrine
of respondeat superior, a plaintiff must prove the following elements:
(1) that the person causing the injury was the principal’s agent,
and (2) that the person causing the injury was acting on the principal’s
business and acting within the scope of his or her employment when the
injury occurred. (Tucker v. Sierra Builders, 180 S.W.3d 109, 120 (Tenn. Ct. App. 2005)).
- A principal is not bound by contracts made by a person that is not their agent, not by those of his agent beyond the scope of his actual and apparent authority. Bells (Banking Co. v. Jackson Centre, Inc., 938 S.W.2d 421, 424 (Tenn. Ct. App. 1996)).
- Actual Authority: Authority given implicitly by principal to his agent. (Banking Co. v. Jackson Centre, Inc., 938 S.W.2d 421, 424 (Tenn. Ct. App. 1996)).
- Apparent Authority: Authority which the principal knowingly permits the agent to assume or which he holds the agent out as possessing. Id.
- Right of control: The principal’s right to control is a key element in the creation of a principal-agent relationship. However, in Tennessee, it is not the right to control the result that is determinative of the existence of an agency relationship; it is the right to control the actual conduct of the work. (McDonald v. Dunn Constr. Co., 185 S.W.2d 517, 520 (Tenn. 1945)).
- Liability: To hold a principal liable for the acts of another under the doctrine of respondeat superior, a plaintiff must prove the following elements: (1) that the person causing the injury was the principal’s agent, and (2) that the person causing the injury was acting on the principal’s business and acting within the scope of his or her employment when the injury occurred. (Tucker v. Sierra Builders, 180 S.W.3d 109, 120 (Tenn. Ct. App. 2005)).
- An “independent contractor” is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to result of his work. (Powell v. Virginia Const. Co., 13 S.W. 691 (Tenn. 1890).
- As a general rule, an employer is not held liable for the acts of an independent contractor. (McHarge v. M.M. Newcomer & Co., 100 S.W. 700, 702 (Tenn. 1907)). The general rule encompasses the notion that employers should not be held responsible for activities they do not control, and in many instances, lack the knowledge and resources to direct. The scope of this general rule has been narrowed somewhat over the years by the recognition of various exceptions. (Givens v. Mullikin, 75 S.W.3d 383, 394 (Tenn. 2002)).
- Exception—Inherently or Intrinsically Dangerous: As an exception to the general rule of nonliability of an employer for the torts of an independent contractor, an employer is liable or cannot escape liability for injuries caused by the failure of an independent contractor to exercise due care in the performance of work which is inherently or intrinsically dangerous. (Cooper v. Metropolitan, Etc., 628 S.W.2d 30, 32 (Tenn. Ct. App. 1981)). The theory upon which this liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, non-delegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or in other words, to see that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury. Id. at 32.
Workers Compensation Exclusivity Rule
- Tennessee Workers’ Compensation law “provides the exclusive remedy for an employee who is injured during the course and scope of his employment, meaning the employee is precluded from seeking tort damages for the injury.” (Valencia v. Freeland & Lemm Constr. Co., 108 S.W.3d 239, 242 (Tenn. 2003)). Tennessee courts have created an exception to the exclusivity provision for intentional torts committed by an employer against an employee. Id.
Standard: The rights and remedies granted to an employee, on account of personal
injury or death by accident, including a minor whether lawfully or unlawfully
employed, shall exclude all other rights and remedies of the employee,
the employee’s personal representative, dependents or next of kin,
at common law or otherwise, on account of the injury or death. (Tenn.
Code Ann. § 50-6-108).
- To be compensable under the Workers’ Compensation Law, an injury must ‘arise out of and in the course of employment’. (Hurst v. Labor Ready, 197 S.W.3d 756, 760 (Tenn. 2006)) (quoting Tenn. Code Ann. § 50-6-102(13)).
- An injury ‘arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury’. (Blankenship v. Am. Ordinance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005)). The injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Id.
- An injury occurs in the course of employment if “it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.” (Blankenship, 164 S.W.3d at 354). Thus, the course of employment requirement focuses on the time, place, and circumstances of the injury suffered by the employee. Id.
- Applied to Co-Employees: A co-employee who, while acting within the course of his employment, causes an injury through his negligence is not ‘some person other than the employer’ pursuant to Section 50-6-112(a) of the Tennessee Code. Thus, an employee cannot hold a fellow employee liable where, at the time of the accident, both parties were subject to the workers’ compensation laws and both were acting within the scope and course of their employment. (Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 539 (Tenn. 2006)).
Exception to the Workers Compensation Exclusivity Rule: Tennessee courts have created an exception to the exclusivity provision
for intentional torts committed by an employer against an employee. These
torts give rise to a common-law tort action for damages. However, the
employee cannot sustain a tort action against the employer under the intentional
tort exception unless he can prove the employer acted with ‘actual
intent’ to injure. (Celia Moody Rodgers v. GCA Services Group, Inc. and Weakley County Tennessee, 2013 WL 543828 at 4 (Tenn. Ct. App. Feb. 13, 2013)).
- Actual Intent to Injure: “It is not enough merely to allege actual intent; rather, there must be alleged facts constituting an actual intent to bring about injury. Absent allegations of facts which support actual intent, an employee cannot maintain a common law action against his employer for his work-related injuries.” Id at 7.
Statutory Caps on Damages
Tennessee has a statutory damage cap of $750,000 in the vast majority of personal injury cases for noneconomic damages. The cap encompasses virtutally anything that does not directly relate to expenses for medical care or lost wages. For catastrophic loss or injury (i.e. amputation, severe burns, wrongful death of parent of a minor child, paralysis due to spinal cord injury, etc.) the cap is $1,000,000. (Tenn. Code Ann.§ 29-39-102(a)(2) & (c)). (See also McClay v. Airport Management Services, LLC, 2020 WL 915980 (Tenn. Feb. 26, 2020)). There is also a statutory cap on punitive damages.
Compensatory Damages for Bodily Injury
- Recoverable Damages: In Tennessee, a plaintiff bringing a cause of action for personal injuries may recover the following compensatory damages if proven by a preponderance of the evidence: ( physical pain and mental suffering; (2) permanent injury (3) disfigurement; (4) loss of enjoyment of life; (5) medical expenses; (6) loss of earning capacity; (7) aggravation of pre-existing condition; and (8) loss of business profits.
- Pain and Suffering: Tennessee courts note that “pain and suffering encompasses the physical and mental discomfort caused by an injury. It includes the ‘wide array of mental and emotional responses’ that accompany the pain, characterized as suffering; such as anguish, distress, fear, humiliation, grief, shame, or worry.” (Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999)).
- Permanent Injury: A permanent injury is an injury that the plaintiff must live with for the rest of the plaintiff’s life that may result in inconvenience or the loss of physical vigor. Damages for permanent injury may be awarded whether or not it causes any pain or inconvenience. Tennessee courts reason that “a permanent injury differs from pain and suffering in that it is an injury from which the plaintiff cannot completely recover.” (See Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999)). This permanent injury leads to future pain and suffering which is a distinct element of personal injury damages.
- Disfigurement: Tennessee courts reason that “disfigurement is a specific type of permanent injury that impairs a plaintiff's beauty, symmetry, or appearance. Permanent injury may relate to earning capacity, pain, impairment of physical function or loss of the use of a body part, to a mental or psychological impairment.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999) (citing Kerr v. Magic Chef, Inc., 793 S.W.2d 927, 929 (Tenn. 1990)).
- Medical Expenses: In Tennessee, “proof in any civil action that medical, hospital or doctor bills were paid or incurred because of any illness, disease, or injury may be itemized in the complaint or civil warrant with a copy of bills paid or incurred attached as an exhibit to the complaint or civil warrant.” (Tenn. Code Ann. § 24-5-113(a)(1)-(3)). Under Tenn. Code Ann. § 24-5-113(a), plaintiffs are not forced to bring in expert medical proof of reasonableness and necessity where “the total amount of such bills does not exceed the sum of four thousand dollars ($4,000.00).” The injured party's future medical expenses are an element of damages in personal injury actions. (See Newman v. Aluminum Co. of Am., 643 S.W.2d 109, 111 (Tenn. Ct. App. 1982)).
- Loss of Earning Capacity: Loss of earning capacity “is an element of damages in personal injury actions.” (Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) (citing Wolfe v. Vaughn, 152 S.W.2d 631, 635 (1941)). Accordingly, evidence concerning lost income, wages and earnings would be relevant in a personal injury action. (Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 132 (Tenn. 2004)).
- Aggravation of Pre-Existing Condition: A person who has a condition or disability at the time of an injury is entitled to recover damages only for any aggravation of the pre- existing condition. Recovery is allowed even if the pre-existing condition made plaintiff more likely to be injured and even if a normal, healthy person would not have suffered substantial injury. (See Haws v. Bullock, 592 S.W.2d 588 (Tenn. Ct. App. 1979)).
- The collateral source rule excludes evidence of benefits to the plaintiff from sources collateral to the tortfeasor and precludes the reduction of the plaintiff’s damage award by such collateral payments. The rule is based on the principles that tortfeasors should be responsible for all of the harm they cause and that payments from collateral sources intended to benefit an injured party should not be used to reduce the liability of the party who inflicted the injury. (Dedmon v. Steelman, 535 S.W.3d 431, 433 (Tenn. 2017)).
- The collateral source rule permits plaintiffs to prove and recover medical expenses, whether paid by insurance or not. (Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. Ct. App. 1994)). In personal injury actions in Tennessee the collateral source rule precludes defendants from “submitting evidence of discounted rates for medical services accepted by medical providers as a result of the plaintiff’s insurance. While defendants may submit other competent proof to rebut the plaintiff’s evidence that the unadjusted medical bills are reasonably, that proof cannot ‘contravene the collateral source rule.” (Dedmon, 535 S.W.3d at 467).
- The trial court has discretion to award pre-judgment interest in accordance with principles of equity. Prejudgment interest may be awarded at any rate not in excess of 10% per annum. (Tenn. Code Ann. § 47-14-123).
- Trial courts are vested with considerable discretion when determining whether to award prejudgment interest. (Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)). Myint departed from prior decisions strictly limiting prejudgment interest awards to cases involving substantial certainty to the existence and amount of an underlying obligation and placed the principles of equity at the forefront of a court’s decision. (Poole v. Union Planters Bank, N.A., 337 S.W.3d 771, 790 (Tenn. Ct. App. 2010)). The court must decide whether the award of prejudgment interest is fair, given the particular circumstances of the case. (Myint, 970 S.W.2d at 927). In reaching the equitable decision, the court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing. Id.
- Equitable factors relevant to a court's decision include the following: (1) promptness in the commencement of a claim, (2) unreasonable delay of the proceedings by either party, (3) abusive litigation practices by either party, (4) the certainty of the existence of an underlying obligation, (4) the certainty of the amount in dispute, and (5) prior compensation for the lost time value of the plaintiff's money. (Poole, 337 S.W.3d at 791).
- Post-judgment interest. Post-judgment interest accrues on all judgments. (Tenn. Code Ann. § 47-14-121). Post-judgment interest begins to accrue on the date that the trial court or jury return the verdict. (Tenn. Code Ann. § 47-14-12.
Damages for Emotional Distress
- Emotional distress: Compensatory damages for personal injuries include reasonable compensation for pain and suffering, past and future. Emotional distress damages recoverable as an element of pain and suffering are distinguished from those damages recoverable in actions for the intentional or negligent infliction of emotional distress.
Negligent Infliction of Emotional Distress
- Standard: The elements of a claim for negligent infliction of emotional distress include the elements of a general negligence claim, which are duty, breach of duty, injury or loss, causation in fact, and proximate causation. In addition, the plaintiff must prove that the defendant's conduct caused a serious or severe emotional injury. (Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).
- The claimed injury or impairment must be supported by expert medical or scientific proof. (Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996).
Initial Infliction of Emotional Distress
- Intentional infliction of emotional distress and outrageous conduct are different names for the same cause of action—not two separate torts. (Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997)).
Standard: The elements of an intentional infliction of emotional distress claim
are that the defendant's conduct was:
- Intentional or reckless;
- So outrageous that it is not tolerated by civilized society; and
- Resulted in serious mental injury to the plaintiff.
- Regarding the first element, the law is clear in Tennessee and elsewhere that either intentional or reckless conduct on the part of the defendant will suffice to establish intentional infliction of emotional distress. (Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn. 200). “Although the rule is dubbed ‘intentional infliction’, recovery also will be allowed when the defendant’s conduct is not intended to cause emotional distress, but the defendant is merely reckless in doing so.” (John J. Jircher, The Four Faces of Tort Law: Liability for Emotional Harm, 90 Marq. L. Rev. 789, 799 (2007)).
- “It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’, or a degree of aggravation which would entitle plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” (Brown v. Mapco Exp., Inc., 393 S.W.3d 696, 704 (Tenn. Ct. App. 2012) (quoting Restatement (Second) of Torts § 46 cmt. d (196).
Wrongful Death versus Survival Action Damages
- Tennessee Code Annotated Section 20-5-113: The Tennessee Supreme Court recently clarified that Tennessee has a hybrid statute that combines wrongful death and survival action claims. (See Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017).
- Right of recovery in a wrongful death case is strictly a creation of statute. Because it is statutory, recoverable damages must be determined by reference to the particular statute involved. Under the Tennessee statute providing a remedy for death from personal injury, survivors of the deceased may recover damages for their losses suffered as a result of the death as well as damages sustained by the deceased from the time of injury to the time of death. Spousal consortium losses can also be considered when calculating the pecuniary value of a deceased’s life under the wrongful death statute. (Tenn. Code Ann. § 20-5-113) (Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 598-99 (Tenn. 1999)).
- While the damages recoverable under Tennessee’s statutes are the type that can be recovered in both survival statutes and purely wrongful death statutes, Tennessee’s statutory designation of the recipients of the proceeds is more similar to purely wrongful death statutes. Under the Tennessee statutes, the damages awarded in a wrongful death lawsuit are “to be free from the claims of [the decedent’s] creditors.” (Tenn. Code Ann. § 20-5-106(a)) (See also Beard, 528 S.W.3d at 498). Although the wrongful death statutes do not specify the manner of distribution of the proceeds, Tennessee’s courts have consistently held that they pass to the statutory beneficiaries in accordance with the laws of intestate succession. (Beard, 528 S.W.3d at 499). Thus, as in pure wrongful death statutes, any proceeds of the action go to the statutory beneficiaries, not to the decedent’s estate. Id.
- One exception is that Tennessee has a hospital lien statute which affords the hospital a statutory right to all or part of its lien in a wrongful death recovery.
Punitive damages may only be awarded if the claimant proves by clear and
convincing evidence that the defendant against whom punitive damages are
sought acted maliciously, intentionally, fraudulently or recklessly. (Tenn.
Code Ann. § 29-39-104(a)().
Punitive or exemplary damages shall not exceed an amount equal to the greater of:
- Two (2) times the total amount of compensatory damages awarded; or
- Five hundred thousand dollars ($500,000).
- Punitive or exemplary damages shall not exceed an amount equal to the greater of:
- Maliciously: A person acts maliciously when the person is motivated by ill will, hatred, or personal spite. Id.
- Intentionally: A person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result. (Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992)).
- Fraudulently: A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation. (Hodges, 833 S.W.2d at 901).
- Recklessly: A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. Id.
Diminution of Value of Damaged Vehicle
- Under Tennessee law, policies of insurance are treated like other contracts. The plain and ordinary meaning is given to the terms of the policy to establish the intent of the parties, and unless and until the language of the policy itself is determined to be ambiguous, the court will not construe the policy against the insurer in favor of the insured. (Black v. State Farm Mut. Auto Ins. Co., 101 S.W.3d 427, 429 (Tenn. Ct. App. 2002)).
- If the policy language is ambiguous, the courts will construe it in favor of the insured. (Stoops v. First Amer. Fire Ins. Co., 22 S.W.2d 1038 (Tenn. 1930)).
- An owner has three years to make a claim for diminution of value to the damaged vehicle.
Loss of Use of Motor Vehicle
- Loss of use damages are available to a plaintiff only when the vehicle is repairable. (Prewitt v. Brown, 525 S.W.3d 616 (Tenn. Ct. App. 2017)). Loss of use damages must be true losses and not something the damaged party could have reasonably avoided. (Scott v. Houston, 2010 WL 680984 (Tenn. Ct. App. 2010)).
- Tennessee courts have recognized an exception to the above rule when commercial property has sustained irreparable damage and cannot be replaced within a reasonable time. (Tire Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849 (Tenn. Ct. App. 1999)).
- In determining the amount of loss of use, you may consider the reasonable rental cost of the property for that period of time and the use or lack of use the plaintiff would have made of it except for the incident. Id.
Exclusion of Traffic Collision Report and Traffic Citations
- Traffic Collision Report: Police reports of traffic accidents are inadmissible. (Tenn. Code Ann. § 55-10-114(b)).
Traffic Citations Issued in Subject Incident: Under Tennessee law, a person
cited for a traffic offense “may elect not to contest the charge
and may, in lieu of appearance in court, submit the fine and costs to
the clerk of the court.” (Tenn. Code Ann. § 55-10-207).
- The out-of-court payment of the fine is an election not to contest the charge, or a plea of nolo contendere. (Williams v. Brown, 860 S.W.2d 854, 856 (Tenn. Ct. App. 1993)).
- Pleas of nolo contendere are not admissible in Tennessee. (Tenn. R. Evid. 410).
- The Williams court declined to answer the question of admissibility where the defendant personally appears in court and pleads guilty and, thus, it remains an open question in Tennessee. (Williams, 860 S.W.2d at 857).
Testimony of Investigating Police Officer
A police officer, who did not observe the collision, is not permitted to testify as to his opinion unless he is qualified as an expert. (Walden v. Wylie, 645 S.W.2d 247 (Tenn. Ct. App. 1982)).
Laws Regarding Motorcyclists
- Helmet: A safety helmet is required to be worn by motorcyclists. (Tenn. Code Ann. § 55-9-302).
- Headlights: Daytime use of headlight is required. (Tenn. Code Ann. § 55-8-164(b)).
- Eye Protection: The motorcyclist must wear eye protection unless the motorcycle is equipped with a windshield. (Tenn. Code Ann. § 55-9-304).
- Lane Splitting: Lane splitting is not legal in Tennessee. (Tenn. Code Ann. §55-8-182(b) & (c)).
- Mirrors: The motorcycle must be equipped with both a left and right side mirror. (Tenn. Code Ann. § 55-9-30.
- Mufflers: Mufflers are required on motorcycles. Cutouts are prohibited. (Tenn. Code Ann. § 55-9-202).
- Passengers: If a motorcycle is transporting a passenger, then it must be equipped with passenger seating and passenger footrests. (Tenn. Code Ann. § 55-9-305) & (Tenn. Code Ann. § 55-8-164(a)).
Evidence of Alcohol or Drug Intoxication
- The results of a properly conducted blood test indicating ten-hundredths of one percent or more in a person's blood thus creates a presumption which assists a lay jury in determining whether a person was under the influence of an intoxicant. (Tenn. Code Ann. § 55-10-408(b)). If the evidence is not rebutted, a jury may then permissibly find that the person was under the influence sufficiently to violate the criminal provisions regarding driving while intoxicated. (McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn. 1992)).
- In Tennessee, violation of a penal statute is negligence per se, and is admissible evidence in a civil action. Id.
- Rule: A qualified expert witness may testify in the form on an opinion or otherwise if the expert has scientific, technical, or other specialized knowledge that will substantially assist the trier of fact to understand the evidence or to determine a fact in issue. (Tenn. R. Evid. 702).
- The facts or data in the particular case upon which an expert bases his opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (Tenn. R. Evid. 703).
- Expert testimony is necessary when subject under examination is one that requires that court and jury have aid of knowledge or experience that cannot be obtained by an ordinary witness. (Lawrence County Bank v. Riddle, 621 S.W.2d 735, 737 (Tenn. 1981)). Exception: The “common knowledge exception” allows the inference of negligence where the jury has common knowledge or understanding that the events which resulted in plaintiff’s injury do not ordinarily occur unless someone was negligent. (Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86 (1999)).
Daubert: Although they did not expressly adopt it, the Tennessee Supreme Court
listed five non-exclusive factors taken from
Daubert in determining the reliability of an expert:
- Whether scientific evidence has been tested and the methodology with which it has been tested;
- Whether the evidence has been subjected to peer review or publication;
- Whether a potential rate of error is known;
- Whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and
- Whether the expert's research in the field has been conducted independent of litigation. (McDaniel v. CSX Transp., Inc., 955 S.w.2d 257, 265 (Tenn. 1997)).
- Trial court acts as gatekeeper: An essential role of the trial judge is to function as a gatekeeper with regard to admissibility of expert testimony, permitting only expert opinions that are based on relevant scientific methods, processes, and data, and not upon the expert’s mere speculation. (Payne v. CSX Transportation, Inc., 467 S.W.3d 413, 454 (Tenn. 201).
- Under the collateral source rule, evidence that a plaintiff has received benefits or payments from a collateral source independent of the tortfeasor’s procuration or contribution must be excluded. (Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017)).
- Defendants in a personal injury case are also precluded from submitting evidence of discounted rates accepted by medical providers from the insurer to rebut the plaintiffs' proof that the full, undiscounted charges are reasonable medical expenses. Id.
- Tape and digital recordings, especially of telephone conversations, pose unique problems as evidence, but have been admissible in Tennessee for many years. Often the actual recording is played for the jury, and a transcript of the recording may also be made and introduced into evidence. (State v. Coker, 746 S.W.2d 167, 172 (Tenn. 1987)).
- Tape recordings have been admitted in Tennessee even if they are of poor quality and somewhat inaudible. (See, e.g., State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986)).
- Under the Tennessee Rules of Evidence, tape and video recordings are subject to the best evidence rule. Rule 1001(1).
- Further, the recording is generally admissible if properly authenticated. Authentication requires a showing that the recording is an accurate reproduction of the matter recorded. (Tenn. R. Evid. 901).
- The conversation must be relevant under Rule 401 and not excluded as unfairly prejudicial or misleading under Rule 403
- Completeness: Rule 106 of the Tennessee Rules of Evidence permits a court to admit into evidence any other part of a recorded statement or any other written or recorded statement which ought in fairness be considered contemporaneously with the writing or recorded statement initially introduced.
- Generally: Evidence of prior convictions is only admissible to impeach the credibility of a witness. The jury will be instructed to consider the evidence only on the question of the defendant’s credibility as a witness and not as evidence of guilt.
- In allowing in a prior conviction, the Court must perform a weighing function pursuant to Tennessee Rules of Evidence Rule 403. The conviction would be admissible to impeach unless its probative value is substantially outweighed by the danger of unfair prejudice or other criteria listed in the rule. (Anderson v. Poltorak, 2017 WL 176639 at 5 (Tenn. Ct. App. Jan. 17, 2017)).
For the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime may be admitted if the following
procedures and conditions are satisfied:
- The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.
- The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.
- If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. (Tenn. R. Evid. 609).
- A defendant’s driving record may be admissible as an exception to hearsay, as a public record. (State v. Baker, 842 S.W.2d 261 (Tenn. Ct. App. 1992)) (See also Tenn. R. Evid. 803(8)).
- Spoliation: The Tennessee Supreme Court ruled that intentional misconduct should not be a prerequisite for imposing spoliation sanctions on an actor, either under the common law, the Tennessee Rules of Civil Procedure, or the inherent authority of the courts. (Tatum v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015)).
Rather, such determinations should be made on a case-by-case basis considering
all relevant circumstances. Factors which are relevant to a trial court’s
consideration of what, if any, sanction should be imposed for the spoliation
of evidence include:
- The culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent;
- The degree of prejudice suffered by the non-spoliating party as a result of the absence of evidence;
- Whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; and
- The least severe sanction available to remedy any prejudice caused to the non-spoliating party. Id.
- A trial court’s discretionary decision to impose a particular sanction ‘will be set aside on appeal only when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence. Id.
Offer of Judgment
- Either party may serve on the other an offer to allow judgment to be entered on specified terms at any time until 10 days prior to trial. (Tenn. R. Civ. Pro. 68).
- If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may file the offer and notice of acceptance, together with proof of service, with the court and judgment shall be rendered accordingly. (Tenn. R. Civ. Pro. 68).
- An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in the proceeding to determine costs. Id.
- If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall pay all costs accruing after the making of the offer. Id.
- Attorney’s fees are not considered a taxable court cost. Person v. Fletcher, 582 S.W.2d 765 (Tenn. Ct. App. 1979). Rule 68 permits recovery of only those costs that are assessed by the trial court. Id. Deposition costs and court reporter’s fees are therefore not taxable court costs under Rule 68. Id.
- Tennessee has a race-notice recording statute. Accordingly, a lien-holder who records his lien first without knowledge of a prior unrecorded instrument has priority over the prior unrecorded lien or instrument. (Tenn. Code Ann. § 66-26-101).
- An exception to the general rule of priority is attorney’s liens which have priority over hospital liens. (Tenn. Code Ann. § 29-22-101(c)). This priority setting provision to apply only where the recovery is insufficient to meet both the attorney’s lien and the hospital’s lien. (Martino v. Dyer, 2000 WL 1727778, 2 (Tenn. Ct. App. Nov. 22, 2000)).
Attorneys of record who bring a suit on behalf of a plaintiff shall have
a lien on the plaintiff’s right of action from the date of the filing
of the suit. (Tenn. Code Ann. § 23-2-102). The lien covers expenses
that are reasonably incurred by the plaintiff’s attorney of record
in the action that resulted in a recovery for the client. (Peoples Nat’l Bank of Washington v. King, 697 S.W.2d 344, 347 (Tenn. Ct. App. 1985)).
- Tennessee law expressly provides that the lien relates back to the commencement of the action. Thus, any subsequent, perfected liens will be subordinate to the attorney’s lien. (Levy Wrecking Co. v. Centex Rodgers, Inc., 2006 WL 2855155 (Tenn. Ct. App. Oct. 6, 2006)).
- The attorney fee lien is a charging lien. (Starks v. Browning, 20 S.W.3d 645, 651 (Tenn. Ct. App. 1999)).A charging lien is based on an attorney’s equitable right to have the fees and costs due for the lawyer's services in a particular action secured by the judgment or recovery the attorney helped obtain in that action. Id.
- Attorneys of record who bring a suit on behalf of a plaintiff shall have a lien on the plaintiff’s right of action from the date of the filing of the suit. (Tenn. Code Ann. § 23-2-102). The lien covers expenses that are reasonably incurred by the plaintiff’s attorney of record in the action that resulted in a recovery for the client. (Peoples Nat’l Bank of Washington v. King, 697 S.W.2d 344, 347 (Tenn. Ct. App. 1985)).
- As set forth in Tennessee Code Annotated, a hospital which furnishes medical or other services to any person injured by reason of an accident, negligent, or wrongful act, shall have a lien upon the damages recovered by the injured person to the extent of the amount of the reasonable and necessary charges in which services are provided for the treatment, care, and maintenance of the person resulting from that tortious act. (Tenn. Code Ann. § 29-22-101).
- The purpose of this Act is to create liens for hospitals to ensure that hospital bills are paid. The legislature recognized that hospitals were losing funds from providing care to individuals who later collected a settlement or judgement for their injuries but failed to pay their hospital bills. This Acts helps to keep hospital costs down by setting up an orderly method for the establishment of liens on such settlements or judgments. (Shelby County Health Care Corp. v. Nationwide Mutual Insuance Co., 2009 WL 302261 (Tenn. Ct. App. Feb. 6, 2009)).
- The hospital lien shall not apply to any amount in excess of one third (1/3) of the damages obtained or recovered. (Tenn. Code Ann. § 29-22-101(b)).
- Once a hospital recovers amounts owed from a patient’s insurance company and the deductible from the patient, the debt is then extinguished and with it any right to a lien pursuant to Tenn. Code Ann. § 29-22-101. (West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014)).
- Hospital Liens
Workers’ Compensation Liens
- Statutory Liens: When a compensable disability or death is caused by the tortious act of a third person, the employee or the employee's surviving eligible dependents are entitled to accept compensation and to pursue an action for damages against the third-party tortfeasor. In order to prevent or avoid a double recovery, the employer or insurer is given a subrogation lien against the employee's "net recovery" by "judgment, settlement or otherwise" from the third party, less the attorney's fees and expenses incurred by the employee, and is entitled to be reimbursed for his or her compensation outlay, with the employee retaining any additional amount. (Tenn. Code Ann. § 50-6-112) (Beam v. Maryland Cas. Co., 477 S.W.2d 510 (Tenn. 1972)). The Court has defined "net recovery" as the total amount collected by the employee in the tort action, less reasonable expenses, including attorney's fees. Id.
- Non-statutory rights: The Tennessee Supreme Court held that the subrogation rights specified in Tennessee Code Annotated § 50-6-112(c) were not necessarily the employer’s exclusive remedy against the third party. The employer, if not made whole, may have a separate action for damages for the third party’s breach of an independent duty owed to the employer. (U.S. Fidelity & Guar. Co. v. Elam, 278 S.W.2d 693 (Tenn. 1955)).
- Time Limits: The employee must institute the third-party action within one year from the date of injury. If the employee fails to bring the action within one year, the cause of action is assigned by law to the subrogated employer, who then has six months to bring the action. (Tenn. Code Ann. § 50-6-112(d)).
Settlement with a Minor
- Tennessee Code Annotated § 29-34-105 sets forth the requirements for approval of a settlement on behalf of a minor involving a tort claim. The statute divides the settlements into two categories based on the amount of the settlement.
Less than $10,000: A judge or chancellor has the authority to sign an order or decree approving
a tort claim settlement on behalf of a minor if the amount of the settlement
is less than $10,000. (Tenn. Code Ann. § 29-34-105(a)).
The order submitted to the court must be supported by an affidavit from
the minor’s legal guardian.
Id. The affidavit must contain the following:
- A description of the tort;
- A description of the injuries to the minor involved;
- A statement that the affiant is the legal guardian;
- The amount of the settlement;
- A statement that it is in the best interest of the minor to settle the claim in the approved amount; and
- A statement of what the legal guardian intends to do with the settlement proceeds until the minor reaches the age of eighteen. (Tenn. Code Ann. § 29-34-105(b)).
- The affidavit is the only technical requirement set forth in the statute for settlements under $10,000; however, many courts still require a hearing before any settlement is approved.
- The order submitted to the court must be supported by an affidavit from the minor’s legal guardian. Id. The affidavit must contain the following:
- Over $10,000: The court will conduct a hearing in the presence of the minor and legal guardian to determine whether or not to approve the settlement. (Tenn. Code Ann. § 29-34-105(a)). Furthermore, it is standard practice for many courts to appoint a guardian ad litem to investigate the settlement and provide a report to the court as to whether the settlement is in the best interest of the minor.
Negotiating Directly with Attorneys
Pursuant to Tennessee Rule of Professional Conduct 4.2 attorneys may not communicate with a party who is represented without the consent of the party’s counsel.
- A settlement is a contract and therefore subject to the rules governing the interpretation of contracts. (Lazar v. J.W. Aluminum, 346 S.W.3d 438 (Tenn. 201).
- Confidentiality Provisions: It is improper for an attorney to propose or accept a provision in a settlement agreementthat requires the attorney to be bound by a confidentiality clause that prohibits a lawyer from future use of information learned during the representation or disclosure of information that is publicly available or that would be available through discovery in other cases as part of the settlement, if that action will restrict the attorney's representation of other clients. (Board of Professional Responsibility of the Supreme Court of Tennessee TN Eth. Op. 2018-F-166, 2018).
Exculpatory Clause: Public policy in Tennessee has historically favored freedom of contract.
Thus, contracts exempting one party from liability for negligence are
not disfavored and are generally enforceable. (Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP, 565 S.W.3d 260, 272 (Tenn. 2018) (citing
Olson v. Molzen, 558 S.W.2d 429, 430 (Tenn. 1977)).
When considering whether to enforce such a release, a court should consider
all the facts and circumstances of the case and these factors:
- The bargaining power of the person signing the release;
- Whether the language in the release clearly states what the person who signs it is giving up; and
- Public policy and public interest implications. (Copeland, 565 S.W.3d at 274).
- When considering whether to enforce such a release, a court should consider all the facts and circumstances of the case and these factors:
A release given to one or more joint tortfeasors that is determined to
have been entered into in good faith:
- Does not discharge any other tortfeasor from liability unless the terms of the settlement provide for such release, but does operate to offset the claims against non-settling tortfeasors by the settlement amount; and
- Discharges the settling party from all liability for contribution to any of the non-settling parties. (See Tenn. Code Ann. § 29-11-105).
- A release given to one or more joint tortfeasors that is determined to have been entered into in good faith:
A release or discharge procured by false and fraudulent representations is voidable or void and may be set aside at the instance of the party defrauded. (Huddleston v. Harper, 2015 WL 3964791 at 8 (Tenn. Ct. App. June 30, 2015) (quoting Crigger v. Mut. Ben. Health & Accident Ass’n, 69 S.W.2d 907, 912 (Tenn. Ct. App. 1933)).
State DOT Regulatory Requirements
- Information regarding Tennessee’s DOT regulations may be found at: https://www.tn.gov/tdot.html and specific information regarding motor carrier services may be found at: https://www.tn.gov/safety/tnhp/cvemain.html.
State Speed Limits
- Unless otherwise posted, the speed limit on primary and secondary state and federal highways in Tennessee is 65 mph. By The maximum speed on interstate highways is 70 mph although this does not apply to all sections of the interstate highway system. (Tenn. Code Ann. § 55-8-152). On interstate and four-lane controlled-access highways, it is unlawful for a person to operate a motor vehicle in the left lane at a speed less than fifty-five miles per hour. (Tenn. Code Ann. § 55-8-152(c)).
- For a school speed limit to be effective, it must be properly signed with flashers only when children are present. It is the responsibility of the local agency to set a school speed limit if one is desired, however, it shall be not less that fifteen (15) mph. (Tenn. Code. Ann. § 55-8-152(d)(1)(A)).
Overview of State CDL Requirements
There are three classes of CDLs:
- Class A: Allows you to operate any combination of vehicles with a Gross Combination Weight Rating (GCWR) of more than 26,000 pounds, and the Gross Vehicle Weight Rating (GVWR) of the vehicle being towed is more than 10,000 pounds.
- Class B: Includes dingle or combination vehicles where the GVWR of the single vehicle is more than 26,000 pounds. The vehicle being pulled must not be more than 10,000 pounds.
- Class C: Any single vehicle, or combination of vehicles, that either is designed to transport 16 or more passengers including the driver, or is used in the transportation of materials found to be hazardous.
- T- Double/Triple Trailers- a knowledge test required
- P-Passenger- knowledge and skills test required
- N- Tank Vehicle- a knowledge test required
- H- Hazardous Materials- a knowledge test required
- S – School bus- knowledge and skills test required; Must be at least 25 years of age
Minimum Requirements for a CDL in Tennessee:
- Must be twenty-one (21) years of age;
- Applicant must not currently be under a driver license suspension or revocation;
- Valid DOT Medical Card;
- Proof of your Social Security Number;
- Tennessee driver’s license or ID, or valid driver license or CDL from another state;
- Two proofs of Domicile in Tennessee;
- Proof of U.S. Citizenship or lawful permanent resident status; and
- Applicant must certify in the license application that all of the qualifications are met.
- Age Exception: If you operate a vehicle solely intrastate and within 100 miles of your job, and your vehicle requires no special endorsements, you may obtain a B license at age 18. At age 19 you can obtain a Class A or Class B license without endorsement. ((Tenn. Code Ann. §§ 55-50-401) – (§ 55-50-413)).
State Minimum Limits of Financial Responsibility
The minimum limits of financial responsibility required under Tennessee law are:
- Not less than twenty five thousand dollars ($25,000) for bodily injury to or death of one (1) person;
- Not less than fifty thousand dollars ($50,000) for bodily injury to or death of two (2) or more persons in any one (1) accident; and
- Not less than fifteen thousand dollars ($15,000) for damage to property in any one (1) accident. (Tenn. Code Ann. § 55-12-102(12)(A)(i)(a)&(b)).
Uninsured Motorist Coverage
- As a matter of law, all provisions of the Tennessee uninsured motorist statute are made a part of all insurance policies issued for delivery in Tennessee. (Tenn. Code Ann. § 56-7-1201(a)().
- However, any named insured may reject in writing the uninsured motorist coverage completely or elect to lower limits of the coverage but not less than the minimum coverage limits. (Tenn. Code Ann. § 56-7-1201(a)().
No Fault Insurance
Tennessee operates an “at-fault” insurance scheme in which the party who is determined to be legally at fault for the accident is responsible for payment of the damages and injuries suffered by the accident victim.
Disclosure of Limits and Layers of Coverage
- Information concerning a defendant’s liability insurance coverage is not subject to discovery under Tennessee Rules of Civil Procedure 26.02 because it is neither admissible nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence. (Thomas v. Oldfield, 279 S.W.3d 259, 26 (Tenn. 2009)) (See Tenn. R. Civ. Pro. 26.02) (See also Tenn. R. Evid. 41.
- As for plaintiff’s insurance, under the “collateral source rule,” evidence of benefits or payments received from a collateral source independent of the tortfeasor’s procuration or contribution must be excluded. (Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017)).
Unfair Claims Practices
Unfair Trade Practices and Unfair Claims Settlement Act of 2009: Any of the following acts by an insurer or person constitutes an unfair
- Knowingly misrepresenting relevant facts or policy provisions relating to coverages at issue;
- Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies;
- Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims arising under its policies;
- Except when the prompt and good faith payment of claims is governed by more specific standards, not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear;
- Compelling insureds or beneficiaries to a life insurance contract to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them; provided, that equal consideration shall be given to the relationship between the amount claimed and the amounts ultimately recovered through litigation or other valid legal arguments;
- Refusing to pay claims without conducting a reasonable investigation except when denied because of an electronic submission error by the claimant;
- Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;
- Attempting to settle or settling claims for less than the amount that a reasonable person would believe the insured or beneficiary was entitled by reference to written or printed advertising material accompanying or made part of an application; provided, that this subdivision does not apply to settlement of, or attempts to settle, claims by third-party claimants;
- Attempting to settle or settling claims on the basis of an application that was materially altered without notice to, or knowledge or consent of, the insured;
- Making claims payments to an insured or beneficiary without indicating the coverage under which each payment is being made. Nothing in this subdivision shall be construed to require specific coverage identification for payments made to meet urgent needs of an insured; provided, that the insured, at or before the final settlement of the claim, receives a written explanation indicating the coverage or coverages under which the payments are made;
- Unreasonably delaying the investigation or payment of claims by requiring both a formal proof of loss form and subsequent verification that would result in duplication of information and verification appearing in the formal proof of loss form. Nothing contained in this subdivision shall be construed as obligating any insurer to make a decision upon any claim without sufficient investigation and information to determine if the claim, or any part of the claim, is false, fraudulent, or for an excessive amount;
- Failing, in the case of claims denials or offers of compromise settlement, to promptly provide a reasonable and accurate explanation of the basis for such actions. Nothing contained in this subdivision shall be construed as obligating any insurer to make a decision upon any claim without sufficient investigation and information to determine if the claim, or any part of the claim, is false, fraudulent, or for an excessive amount. Further, this subdivision shall not apply to denials of, or offers of compromise settlement of, third-party claims;
- In response to a request for claims forms, failing to provide forms necessary to present claims within fifteen calendar days of such a request with reasonable explanations regarding their use;
- If the insurer owns a repairer or requires a repairer to be used, the insurer's failure to adopt and implement reasonable standards to assure that the repairs are performed in a workmanlike manner; or
- Failing to make payment of workers' compensation benefits as such payment is required by the commissioner of labor and workforce development or by title 50, chapter 6.
(Tenn. Code Ann. § 56-8-105(1) – (15)).
Bad Faith Claims
- The Supreme Court of Tennessee has stated that “bad faith in the insurance context is defined in part, as an insurer’s disregard or demonstrable indifference toward the interests of its insured.” This indifference may be proved circumstantially by facts that tend to show a willingness on the part of the insurer to gamble with the insured’s money in an attempt to save its own money, or by any intentional disregard of the financial interests of the insured in the hope of escaping full liability imposed upon it by the policy. (Johnson v. Tennessee Farmers Mut. Insurance Co., 205 S.W.3d 365 (Tenn. 2006)).
There are four essential elements to pleading an insurance bad faith cause
of action under Tennessee law:
- The policy of insurance must, by its terms, have become due and payable;
- A formal demand for payment must have been made;
- The insured must have waited 60 days after making demand before filing suit, unless there was a refusal to pay prior to the expiration of the 60 days; and
- The refusal to pay must not have been in good faith. (Tenn. Code Ann. § 56-7-105).
- If an insurance company unsuccessfully asserts a defense and the defense was made in good faith, the statute does not permit the imposing of the bad faith penalty. (Nelms v. Tennessee Farmers Mut. Ins. Co., 613 S.W.2d 481, 484 (Tenn. Ct. App. 1978)).
Coverage – Duty of Insured
- Most liability policies contain a standard cooperation clause that provides that the insured will cooperate with the carrier in the investigation, settlement, or defendant of a claim or suit.
- Tennessee courts have consistently upheld clauses requiring insureds to cooperate with their insurance companies. (State Auto Ins. Co. v. Bishop, 2000 WL 279940 at 4 (Tenn. Ct. App. March 16, 2000)). The courts view these clauses as conditions precedent and consider their viability “so often sustained that the question should be considered at rest.” Id.
- For the breach of a cooperation clause to be a defense to liability, the insurer must show substantial prejudice due to the breach. (See Thaxton v. Allstate Ins. Co., 1988 WL 23922 (Tenn. Ct. App. March 18, 1988)).
Examples of breach of the cooperation clause include:
- Refusal of husband and wife to submit to separate interviews by the insurance company. (Shelter Ins. Companies v. Spence, 656 S.W.2d 36 (Tenn. Ct. App. 1983)).
- Failing to answers questions under oath. (Spears v. Tennessee Farmers Mut. Ins. Co., 2009 WL 2144066 (Tenn. Ct. App. July 17, 2009)).