TAM-BYTES

May 30, 2016

Vol. 19, No. 22
TAM Webinars
Tennessee Probate Case Law & Legislative Update, 60-minute
webinar presented by Rebecca Blair & Julie Travis Moss with The Blair
Law Firm in Brentwood, on Tuesday, June 21, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
Attorneys 2016 Employment Law Update: Latest from the Tennessee
Legislature and Courts, 60-minute webinar presented by David L.
Johnson & Brent E. Siler with Butler Snow, on Tuesday, June 28, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Litigating Causation Issues in Tennessee Healthcare Liability Cases,
60-minute webinar presented by Chris Tardio with Gideon, Cooper &
Essary in Nashville, on Wednesday, June 29, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
Social Security Disability: How to Succeed at the ALJ Hearing, 60minute webinar presented by Chris Gentry with The McMahan Law Firm
in Chattanooga, on Wednesday, July 13, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Child Support Guidelines: What Attorneys Need to Know,
90-minute webinar presented by Barbara Broersma Assistant
Commissioner, Appeals & Hearings, with the Tennessee Department of
Human Services, on Wednesday, July 13, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1.5 hours of GENERAL credit

Child Custody in Tennessee: When May a Parent Relocate with

Children?, 60-minute audio conference presented by Kevin Shepherd,
Maryville attorney, on Tuesday, July 19, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Event

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 23
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Judge Don R. Ash, senior judge, Tennessee Senior Judge
Program; Edward U. (Ned) Babb, Butler, Vines and Babb, PLLC,
Knoxville; Laura Baker, Law Offices of John Day PC, Brentwood;
Brandon Bass, Law Offices of John Day PC, Brentwood; Daniel Clayton,
Kinnard, Clayton & Beveridge, Nashville; Chuck Mangelsdorf, MGC
Insurance Defense, Nashville; J. Bryan Moseley, Moseley & Moseley,
Murfreesboro; and T. Kenan Smith, Hodges, Doughty & Carson, PLLC,
Knoxville
HIGHLIGHTS: How West v. Shelby County Healthcare impacts medical
damages; negotiating with insurance adjusters; proving medical bills in a
personal injury case; Medicare set-aside allocations, approvals, and
administration; truck accident litigation trial strategies for both the plaintiff
and the defense; best practices in uninsured motorist cases; voir dire -- first
impressions, team building, and primary objectives; review of recent
personal injury cases; and dealing with a judge who is acting unethically.
For more information or to register call us at (800) 274-6774 or visit
www.mleesmith.com/tn-personal-injury-law

19th Annual Tennessee Workers Compensation Educational

Conference, presented by The Tennessee Bureau of Workers
Compensation, to be held on Tuesday, Wednesday, & Thursday, June 21
through June 23, in Murfreesboro at the Embassy Suites Nashville SEMurfreesboro.
For additional information or to register for either of these events, contact
the IWCF at (386) 677-0041 or email IWCF@bellsouth.net
IN THIS WEEKS TAM-Bytes
Court of Appeals, in holding that funds in certificate of deposit that
had been withdrawn from joint account by decedent passed to
surviving wife upon decedents death, applies general proposition that
absent agreement from non-withdrawing spouse that his or her
ownership interest in funds is to cease, funds withdrawn should
remain impressed with entirety provision;
Court of Appeals says that once mandatory 30-day filing period passed
without father filing petition opposing mothers relocation, mother was
free to relocate with child without fathers consent or court order as
long as her notice to father met requirements of TCA 36-6-108(a);
Court of Appeals says evidence did not preponderate against trial
courts finding that mother was not voluntarily underemployed for
child support purposes when mother preemptively quit her job, which
paid her $19 per hour, in order to salvage her paid time off and
insurance because she believed she was about to be fired, and took job
earning $12 per hour;
Court of Appeals holds with respect to matters of dependent and neglected
children, juvenile court is not inferior tribunal relative to chancery court;
Court of Criminal Appeals affirms trial courts decision to allow
facility dog to be present with 10-year-old victim during his
testimony at rape trial;
Court of Criminal Appeals says trial court properly granted
defendants motion to suppress evidence obtained during mandatory
blood draw in DUI case when implied consent law does not, by itself,
operate as exception to warrant requirement, and defendants actual
consent to blood draw was not freely and voluntarily given; and

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee alleged that he injured
his neck at job site on 5/11/15 when he attempted to lift shopping cart
partially filled with construction materials, lost his balance, and fell
backward, even assuming employer took 15 days to investigate and make
decision on compensability, panel should have been offered or denial filed
no later than 6/4/15, and choice of physician form was not signed until
6/27/15 by which time employee had sought treatment on his own, having
seen Dr. Lanford on 6/9/15, thus, employee justifiably sought treatment on
his own and is entitled to continue treating with Lanford as his authorized
physician; employee did not present sufficient medical proof to establish that
he was unable to work as result of his injury, having come forward with no
restrictions issued by physician addressing his ability to work; although
employees deposition testimony could be considered incomplete or
arguably inconsistent regarding both his previous arrest record and his prior
neck pain, trial court did not err in finding employees testimony at
expedited hearing to be credible and reliable. Young v. Young Electric Co.,
5/25/16, Conner, 27 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1421&context=utk_workerscomp

COURT OF APPEALS
INSURANCE: When someone intentionally set fire to prefabricated metal
building housing plaintiffs business, plaintiff filed suit alleging breach of
contract, bad faith, refusal to pay, and violation of Tennessee Consumer
Protection Act (TCPA), insurers motion for directed verdict was denied,
jury found that plaintiff was entitled to recover under policy and awarded
compensatory and punitive damages and prejudgment interest, and imposed
bad faith penalty and damages pursuant to TCPA, plaintiff was unaware of
sufficient facts prior to 4/29/11 that she had sustained injury or damages as
result of insurers action, and claim accrued after 4/29/11, rendering TCA
56-8-113, which, effective on 4/29/11, prohibits private causes of action in
cases involving insurance claims, applicable and prohibiting review of
TCPA claim; trial court erred in submitting punitive damages to jury when
results of investigation supported insurers honest and good faith belief that
plaintiff was somehow involved in setting fire; trial courts denial of motion

for directed verdict and jurys subsequent imposition of bad faith penalty
and award of punitive damages and damages pursuant to TCPA are reversed.
Lance v. Owners Insurance Co., 5/25/16, Knoxville, McClarty, 21 pages.
http://www.tncourts.gov/sites/default/files/lanceopn.pdf

PROPERTY: Trial court erred in concluding that certificate of deposit was

property of decedents estate when funds within certificate of deposit were
derived from joint marital account; funds in certificate of deposit passed to
surviving wife upon decedents death; although rule from Mays v. Brighton
Bank, 832 SW2d 347 (Tenn.App. 1992), has not been specifically rejected
by Tennessee Supreme Court, rule laid down in In re Estate of Grass, 33
TAM 29-6 (Tenn.App. 2008), is more consistent with character of entireties
ownership and expectations incident thereto; principle from Mays that
entireties ownership ceases when one spouse withdraws money from marital
account and reduces those funds to his or her separate possession is rejected;
as general proposition, absent agreement from non-withdrawing spouse that
his or her ownership interest in funds is to cease, funds withdrawn should
remain impressed with entirety provision. In re Estate of Fletcher, 5/23/16,
Nashville, Goldin, 15 pages.
http://www.tncourts.gov/sites/default/files/estateofcalvertfletcher.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts finding that

there was no material change in circumstance sufficient to modify residential
parenting schedule when seven years had passed since entry of permanent
parenting plan, both mother and father agreed that parenting plan was no
longer workable, there had been significant additions to both mothers and
fathers families, and father, who is on active duty with U.S. Army, was no
long eligible to deploy; case is remanded for trial court to determine whether
modification is in childrens best interest. Wilkerson v. Wilkerson, 5/19/16,
Nashville, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/wilkerson.lawrence.opn_.pdf

FAMILY LAW: In case in which mother notified father that she intended
to relocate outside of Tennessee with parties minor son, father filed petition
opposing relocation on grounds that it would not be in childs best interest,
but petition was filed outside 30-day filing period set forth in TCA 36-6-108,
trial court excused untimely filing of fathers petition, reasoning that mother
waived defense by failing to plead it as affirmative defense, and after
hearing, trial court found that mothers proposed move would not be in
childs best interest, denying her relocation request, because father failed to
file written petition opposing mothers relocation within 30 days of

receiving notice of her proposed relocation, trial court erred in conducting

any further analysis under TCA 36-6-108; mother was not required to raise
untimely filing as affirmative defense once mandatory 30-day filing period
passed without father filing petition opposing mothers relocation, mother
was free to relocate with child without fathers consent or court order as long
as her notice to father met requirements of TCA 36-6-108(a). Ross v.
Rosswoods, 5/19/16, Nashville, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/ross.jon_.r.opn_.pdf

FAMILY LAW: In case in which mother was designated primary

residential parent of parties daughter in 2009 at time of parties divorce,
trial court gave parties co-parenting time in amount of 182.5 days each year,
to be exercised every other week, and mother filed petition to modify
parenting plan, seeking to reduce fathers parenting time to 80 days per year,
trial court properly determined that material change in circumstances had
occurred based on fathers violation of alcohol provision of parenting plan
parenting plan prohibited consumption of alcohol in presence of child, but
father testified that he had not only consumed alcohol in presence of child
but had also, at times, driven with child in car after consuming alcohol;
evidence did not preponderate against trial courts conclusion that, although
material change of circumstances had occurred, modifying parenting
schedule was not in childs best interest given fact that both parties have
strong and loving relationship with 9-year-old child, child is very close to
her paternal grandparents and has good relationship with fathers fiance,
and when exercising parenting time, each parent spends majority of afterschool hours with child, bathing her, feeding her, and helping her with her
homework. Wheeler v. Wheeler, 5/24/16, Nashville, Dinkins, 12 pages.
http://www.tncourts.gov/sites/default/files/wheeler.matthew.opn_.pdf

FAMILY LAW: In case in which mother filed petition to modify her child
support, evidence did not preponderate against trial courts finding that
mother was not voluntarily underemployed for child support purposes when
mother preemptively quit her job, which paid her $19 per hour, in order to
salvage her paid time off and insurance because she believed she was about
to be fired, and took job earning $12 per hour; pursuant to Child Support
Guidelines, trial court should have used mothers current pay rate to
determine mothers income for child support purposes, and as such, trial
courts order basing mothers child support on finding that she is capable of
making $13.30 per hour is reversed. Smith v. Smith, 5/24/16, Nashville,
Gibson, 6 pages.
http://www.tncourts.gov/sites/default/files/smithmeganeopn.pdf

FAMILY LAW: Chancery court did not have subject matter jurisdiction to
grant writ of certiorari to review protective custody order entered by juvenile
court; with respect to matters of dependent and neglected children, which
were clearly at issue in juvenile courts protective custody order, juvenile
court is not inferior tribunal relative to chancery court. In re Brody S.,
5/24/16, Nashville, Goldin, 8 pages.
http://www.tncourts.gov/sites/default/files/in_re_brody_s.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted of
rape of child, trial court did not abuse discretion in allowing facility dog
(Murch) to be present with 10-year-old victim during his trial testimony
when trial court determined that presence of Murch during young victims
testimony would ease his being able to testify and that Murch would be
handled in such way as to make his presence as unobtrusive as possible, and
trial court instructed jury that no inferences should be made, nor sympathy
result, from presence of facility dog. State v. Reyes, 5/24/16, Nashville,
Glenn, 17 pages.
http://www.tncourts.gov/sites/default/files/reyesjoseopn.pdf

CRIMINAL PROCEDURE: In DUI case, evidence did not preponderate

against trial courts denial of defendants motion to suppress evidence seized
as result of traffic stop when deputys observation of defendant traveling
toward him in middle of two-lane road, standing alone, supplied deputy with
reasonable suspicion to conduct investigatory stop of defendants vehicle
deputy also observed defendant veer off side of road once before initiating
stop and again after activating his blue lights. State v. Moore, 5/24/16,
Nashville, McMullen, 5 pages.
http://www.tncourts.gov/sites/default/files/moorejeffreyopn.pdf

CRIMINAL PROCEDURE: Trial court properly granted defendants

motion to suppress evidence obtained during mandatory blood draw in DUI
case when defendants actual consent to blood draw was not freely and
voluntarily given when defendant testified that he felt that he had no other
choice but to give his consent defendant was pulled over by three police
officers, officers ordered defendant out of his car at gunpoint and placed him
in handcuffs, officer conducted field sobriety test and placed defendant
under arrest, and officer then read defendant implied consent form,

informing defendant, in no uncertain terms, that officers would hold him

down and take sample of his blood by force if he refused to consent to blood
draw; Tennessees implied consent law does not, by itself, operate as
exception to warrant requirement; Tennessee Supreme Court has yet to
recognize good faith exception to exclusionary rule, and it is not role of
intermediate appellate court to do so in this case. State v. Carter, 5/20/16,
Nashville, Holloway, 11 pages.
http://www.tncourts.gov/sites/default/files/carterhelkienathan.pdf

PUBLIC CHAPTERS
TORTS: Reasonable attorney fees and costs incurred by state or local
government employee must be awarded to such employee when he or she is
sued in individual capacity and is prevailing party. 2016 PC 848, effective
6/1/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0848.pdf

ESTATES & TRUSTS: For wills executed prior to 7/1/16, to extent

necessary for will to be validly executed, witness signatures affixed to
affidavit meeting requirements of TCA 32-2-110 will be considered
signatures to will, if other statutory requirements are met. 2016 PC 843,
effective 4/19/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0843.pdf

SIXTH CIRCUIT COURT OF APPEALS

TORTS: When defendant, Mississippi law firm, filed suit in district court in
Mississippi on behalf of DePriest against plaintiff alleging defamation,
tortious interference with business relationships, and intentional infliction of
emotional distress on basis that plaintiff provided publicly available
documents from Federal Communications Commission to competitor of
company affiliated with DePriest, Mississippi district court granted motion
to dismiss suit, and plaintiff and his wife sued defendant alleging abuse of
process, intentional infliction of emotional distress, fraud by duress, loss of
spousal consortium, and malicious prosecution, and district court granted
defendants motion to dismiss, allegation that defendant served plaintiff in
prior suit at an odd hour on a nonweekday, at [plaintiffs] personal
residence in order to magnify the in terrorem effect, did not state valid
abuse-of-process claim under Tennessee law; to extent other claims arise

from improper initiation of prior lawsuit, personal jurisdiction is inconsistent

with due process. Harmer v. Colom, 5/27/16, Donald, 9 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0284n-06.pdf

GOVERNMENT: When 11 named plaintiffs, residents of Tennessee who

applied for Medicaid, filed class action complaint for declaratory and
injunctive relief against Director of Bureau of TennCare, Commissioner of
Finance and Administration, and Commissioner of Human Services (state),
alleging that delays plaintiffs have experienced in receiving eligibility
determinations on their Medicaid applications violate 42 USC 1396a(a)(8) of
Medicaid statute, and that states failure to provide fair hearing on their
delayed applications violates 42 USC 1396a(a)(3) and Due Process Clause
of U.S. Constitution, district court did not abuse discretion in granting
preliminary injunction, which requires state to grant fair hearing on delayed
applications to class members who request one. Wilson v. Gordon, 5/23/16,
Moore, dissent by Sutton, 33 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0127p-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employee gave adequate notice of
injury when although employee had symptoms in his shoulders going down
into his hands and fingers for period of time prior to giving notice on 6/4/15,
he did not know he had carpal tunnel syndrome until doctor diagnosed
condition on 5/8/15, and when employee credibly testified that he did not
learn from physician that his work caused his carpal tunnel syndrome until
doctors causally related it to his work duties. Wilson v. Dana Holding
Corp., 12/16/15, Jackson, Luttrell, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1113&context=utk_workerscomp

WORKERS COMPENSATION: When injured employee chose Dr. Bolt

from panel of physicians in 8/15, nurse case manager discovered Bolt had no
available appointments until 10/15, she called insurance adjustor, who
indicated that she would replace Bolt with another physician, employee
declined to sign revised panel naming Dr. Madigan as his authorized
physician, and employee testified that he only saw Madigan because case
manager and insurance adjustor advised him his temporary disability
benefits would be terminated if he refused, insurance adjuster could not
refuse employees selection of Bolt from panel provided to him by her
without employees consent; perhaps it was misjudgment on insurance

adjustors part to include Bolt on panel without first checking as to his

availability, but that is insufficient to require employee to change selection
to which he is entitled; employees actions did not constitute acceptance of
Madigan as required by statute, and Bolt remains employees authorized
treating physician. Hill v. Cocke County Highway Department, 12/18/15,
Cookeville, Durham, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1270&context=utk_workerscomp

WORKERS COMPENSATION: When employees supervisor censured

him for excessive absenteeism and tardiness on 5/13/15, employee sustained
injury to his right wrist on 7/6/15, employer accommodated employees
restrictions, and employer terminated employee on 7/28/15 for being tardy to
work, evidence established that employee was late in arriving at work on
7/28/15 despite his assertions to contrary and, as result, employees actions
constituted misconduct under employers established or ordinary workplace
rules and/or expectations, and hence, employee failed to provide sufficient
evidence from which to determine that he is likely to prevail at hearing on
merits regarding issue of temporary partial disability benefits; issue is
analogous to those cases where issue was whether 1.5 times cap on
permanent disability benefits should apply when employee was terminated
prior to reaching maximum medical improvement; employees termination
for cause will preclude employee from receiving benefits he or she may have
otherwise been due because of his loss of employment. Kennedy v. Paladin
Attachments, 12/10/15, Cookeville, Durham, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1266&context=utk_workerscomp

If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov