Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 10/21/2014
Format: 10/21/2014
02A01-9509-CH-00202
Shelby County Court of Appeals 10/10/96
02A01-9510-CV-00231
Shelby County Court of Appeals 10/10/96
02C01-9501-CR-00029
Shelby County Court of Criminal Appeals 10/10/96
Wendy Setters individually and as the parent of minors Melanie Ann Setters and Nicole Krystal Setters, v. Permanent General Assurance Corporation
03A01-9605-CV-00161

This is a declaratory judgment action. In the complaint, Wendy Setters (Mrs. Setters) seeks a declaration that an exclusion in her automobile insurance policy is invalid as against public policy; and, alternatively, that the exclusion, due to an ambiguity in the insurance policy, is unenforceable against her. The subject provision excludes the extension of liability coverage to an insured when that person's negligence causes injury to a family member. Relying on this exclusion, the defendant, Permanent General Assurance Corporation (Permanent General), denied coverage with respect to claims asserted by Mrs. Setters individually and on behalf of her children arising solely out of injuries sustained by the children in an automobile accident. The accident was caused, in part, by the negligent driving of her husband. The trial court granted Permanent General's motion for judgement on the pleadings, finding the exclusion to be valid, enforceable and not violative of the public policy" of Tennessee. Plaintiff appeals, raising two issues that present the following questions:

1. Is a provision in an automobile insurance policy excluding coverage for liability to a "family member" violative of the public policy of Tennessee?

2. Is the liability coverage in the subject policy ambiguous so as to warrant a strict constructino against Permanent General?

McMinn County Court of Appeals 10/10/96
Deborah Jean Barne v. Emerson Electric Company
02S01-9505-CV-00043
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Our scope of review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-22 5(e)(2). The employer contends the trial court erred in: 1. Awarding permanent partial disability benefits based on 8% to the left hand; and 2. Aw ardi ng th e cos t of o btain ing D r. Ro bert J. Ba rnet t's depos ition as a recove rable dis cretiona ry cost. We affirm the trial court as to both issues. Deborah Jean Barner ("Barner") is 41 years of age and a high school graduate. Other than attending college for one quarter, she has no additional educational experience , specialized training or vocational training. H er work history consists entirely of factory work. Prior to employment at Emerson, Barner performed assem bly work in a plastics factory a nd worked in fa ctories where clothing was co nstructe d and s hoes w ere ma nufactu red. On October 18, 1993, Barner injured her non-dominant left hand arising out of the course and scope of her employment. From a list of three doctors given to her by the employer, she chose Dr. Harrison, whose billing reflects that he treated her on four occasions over a four month period. Dr. Harrison referred her to Dr. Stonecipher, an o rthopedic surgeon. B arner became d issatisfied with Dr. Stonecipher's treatment and continued to have difficulty performing her job duties withou t swellin g and c onstan t pain. Barner was then referred by her attorney to Dr. David Gaw, who referred her to Dr. Charles Emerson, another orthopedic surgeon. Dr. Emerson's records, 2
Wayne County Workers Compensation Panel 10/10/96
Deborah Jean Barne v. Emerson Electric Company
02S01-9505-CV-00043
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Our scope of review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-22 5(e)(2). The employer contends the trial court erred in: 1. Awarding permanent partial disability benefits based on 8% to the left hand; and 2. Aw ardi ng th e cos t of o btain ing D r. Ro bert J. Ba rnet t's depos ition as a recove rable dis cretiona ry cost. We affirm the trial court as to both issues. Deborah Jean Barner ("Barner") is 41 years of age and a high school graduate. Other than attending college for one quarter, she has no additional educational experience , specialized training or vocational training. H er work history consists entirely of factory work. Prior to employment at Emerson, Barner performed assem bly work in a plastics factory a nd worked in fa ctories where clothing was co nstructe d and s hoes w ere ma nufactu red. On October 18, 1993, Barner injured her non-dominant left hand arising out of the course and scope of her employment. From a list of three doctors given to her by the employer, she chose Dr. Harrison, whose billing reflects that he treated her on four occasions over a four month period. Dr. Harrison referred her to Dr. Stonecipher, an o rthopedic surgeon. B arner became d issatisfied with Dr. Stonecipher's treatment and continued to have difficulty performing her job duties withou t swellin g and c onstan t pain. Barner was then referred by her attorney to Dr. David Gaw, who referred her to Dr. Charles Emerson, another orthopedic surgeon. Dr. Emerson's records, 2
Henry County Workers Compensation Panel 10/10/96
Bobby G. Dickens v. Travelers Insurance Company
01S01-9512-CR-00227
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the award of permanent partial disability benefits is excessive. The panel concludes the award should be affirmed. The claimant, Dickens, is 54 years old with a high school education and no special skills. In April of 1993, while working for Eatherly Construction Company as a ditch digger, he twisted his right knee. He was referred to Dr. John McInnis, who arthroscopically diagnosed and removed a large tear from the lateral meniscus of the claimant's right knee joint. The doctor assessed a permanent anatomical impairment of seven and one-half percent to the right knee, from AMA Guidelines. The claimant returned to work on June 21, 1993, but is medically restricted from repetitive squatting. Because his duties at Eatherly required him to climb, squat and kneel, he left Eatherly and is now working for another construction company servicing equipment, a job he can perform while standing in a pit. He is making less than he would be making in his former work at Eatherly. The trial court awarded permanent partial disabililty benefits on the basis of forty percent to the injured leg. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From a consideration of those factors in this case, the panel finds that the evidence fails to preponderate against the judgment of the trial court. The judgment of the trial court is therefore affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Smith County Workers Compensation Panel 10/10/96
Bobby G. Dickens v. Travelers Insurance Company
01S01-9512-CR-00227
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the award of permanent partial disability benefits is excessive. The panel concludes the award should be affirmed. The claimant, Dickens, is 54 years old with a high school education and no special skills. In April of 1993, while working for Eatherly Construction Company as a ditch digger, he twisted his right knee. He was referred to Dr. John McInnis, who arthroscopically diagnosed and removed a large tear from the lateral meniscus of the claimant's right knee joint. The doctor assessed a permanent anatomical impairment of seven and one-half percent to the right knee, from AMA Guidelines. The claimant returned to work on June 21, 1993, but is medically restricted from repetitive squatting. Because his duties at Eatherly required him to climb, squat and kneel, he left Eatherly and is now working for another construction company servicing equipment, a job he can perform while standing in a pit. He is making less than he would be making in his former work at Eatherly. The trial court awarded permanent partial disabililty benefits on the basis of forty percent to the injured leg. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From a consideration of those factors in this case, the panel finds that the evidence fails to preponderate against the judgment of the trial court. The judgment of the trial court is therefore affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Smith County Workers Compensation Panel 10/10/96
Joseph Jarreau v. Vanliner Insurance Company
01S01-9512-CH-00228
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. This appeal presents the questions whether and under what circumstances, if any, an injured worker may give up his right to future medical expenses. The panel concludes the trial court's judgment, approving a settlement in which the right to future medical expenses was voluntarily surrendered for consideration, should be affirmed. The employee or claimant, Jarreau, commenced this civil action by filing a complaint for workers' compensation benefits, averring that he had suffered an injury by accident arising out of and in the course of his employment by Ozark Motor Lines, Inc. The complaint further averred, in relevant part, that his injury had been diagnosed as a tear of the left medial meniscus, that he had reached maximum medical recovery and would retain a permanent impairment but that there was a genuine dispute as to the extent of his permanent disability. He sought to recover medical and permanent partial disability benefits. Vanliner Insurance Company served its answer admitting it was the insurer for Ozark, but denying that the claimant had suffered a compensable injury or that he was permanently disabled. On September 8, 1994, before the case could be tried, the claimant and his attorney and the attorney for Vanliner appeared before Judge Capers seeking approval of a negotiated settlement. By the settlement terms, the claimant was to receive $25,459.2, representing a permanent partial disability of forty percent to the left leg, and an additional $9,54.8 in consideration of the claimant's relinquishment of any claim for future medical benefits, for a total of $35,.. Additionally, the claimant had already received $15,481.3 in medical benefits and $12,481.3 in temporary total disability benefits. We find in the record no transcript of the settlement hearing, but Judge Capers found that Dr. Robert V. Russell had opined the claimant had reached maximum medical improvement and would retain a permanent anatomical impairment of ten percent to the leg. The judge further found the settlement to be in the best interest of the claimant, "in light of the controversy and dispute between the parties." The agreement was approved as a full, final and complete settlement of Mr. Jarreau's claim against the employer and its insurer. Almost eight months later, on April 28, 1995, the claimant applied to the court, per Tenn. R. Civ. P. 6.2, for an order setting aside the settlement 2
Wilson County Workers Compensation Panel 10/10/96
Kenneth W. Leach v. Driver Power Leasing & Humboldt Express
01S01-9601-CV-00021
Davidson County Workers Compensation Panel 10/10/96
Kenneth W. Leach v. Driver Power Leasing & Humboldt Express
01S01-9601-CV-00021
Davidson County Workers Compensation Panel 10/10/96
St. Paul Fire & Marine Insurance Company and Lineal Group, Inc. v. Cecil Carrick
01S01-9509-CV-00146
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded Defendant/Counter-Plaintiff 85% permanent partial disability to the left lower extremity. Plaintiff/Counter-Defendant below appeals, arguing that the trial court erred in finding that the employee's testimonywas credible; that the employee failed to prove that he sustained a permanent injury which arose out of and in the course of his employment; that the employee failed to give proper notice of his injury; that the evidence does not support an award of 85% to the lower extremity; and that the medical treatment awarded by the trialcourt was unauthorized and should not have been allowed. We affirm the judgment of the trial court. Defendant/Counter-Plaintiff worked at Samsonite for 3 years. Defendant/Counter-Plaintiff's other work experience includes growing tobacco and peppers, raising cattle, and performing various odd jobs. Defendant/Counter- Plaintiff has a high school education and some training in electronics. Defendant/Counter-Plaintiff's duties at Samsonite included counting and transferring chairs from one line to another. This involved shifting his weight from one leg to the other. It also involved spending long periods of time on his feet while working on a concrete floor. Because Defendant/Counter-Plaintiff suffered several strokes since the time of the injury and was unable to remember many of the specific facts surrounding his injury so as to be unavailable, the trial court relied on Defendant/Counter- Plaintiff's deposition testimony. Defendant/Counter-Plaintiff was 55 years old on the date that he gave his deposition testimony. Defendant/Counter-Plaintiff testified that he suffered from pain in his left knee. For four or five months prior tothe injury complained of, Defendant/Counter- Plaintiff's leg would swell from hip down to ankle. Defendant/Counter-Plaintiff told his foreman about the problems with his legs
Rutherford County Workers Compensation Panel 10/10/96
St. Paul Fire & Marine Insurance Company and Lineal Group, Inc. v. Cecil Carrick
01S01-9509-CV-00146
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded Defendant/Counter-Plaintiff 85% permanent partial disability to the left lower extremity. Plaintiff/Counter-Defendant below appeals, arguing that the trial court erred in finding that the employee's testimonywas credible; that the employee failed to prove that he sustained a permanent injury which arose out of and in the course of his employment; that the employee failed to give proper notice of his injury; that the evidence does not support an award of 85% to the lower extremity; and that the medical treatment awarded by the trialcourt was unauthorized and should not have been allowed. We affirm the judgment of the trial court. Defendant/Counter-Plaintiff worked at Samsonite for 3 years. Defendant/Counter-Plaintiff's other work experience includes growing tobacco and peppers, raising cattle, and performing various odd jobs. Defendant/Counter- Plaintiff has a high school education and some training in electronics. Defendant/Counter-Plaintiff's duties at Samsonite included counting and transferring chairs from one line to another. This involved shifting his weight from one leg to the other. It also involved spending long periods of time on his feet while working on a concrete floor. Because Defendant/Counter-Plaintiff suffered several strokes since the time of the injury and was unable to remember many of the specific facts surrounding his injury so as to be unavailable, the trial court relied on Defendant/Counter- Plaintiff's deposition testimony. Defendant/Counter-Plaintiff was 55 years old on the date that he gave his deposition testimony. Defendant/Counter-Plaintiff testified that he suffered from pain in his left knee. For four or five months prior tothe injury complained of, Defendant/Counter- Plaintiff's leg would swell from hip down to ankle. Defendant/Counter-Plaintiff told his foreman about the problems with his legs
Rutherford County Workers Compensation Panel 10/10/96
Grace Thru Faith, v. Tony L. Caldwell, and Tony L. Caldwell and Joann P. Caldwell Trust, v. Edward Irwin and Rebecca Irwin
02A01-9502-CH-00026

This is a case involving a trustee’s improper accounting procedures and misuse of funds regarding a trust set up to receive Social Security Insurance payments. At issue is whether Tennessee state courts have subject matter jurisdiction to hear a dispute between a beneficiary and his representative payee over alleged misuse of Social Security benefits. The trial court found it had jurisdiction. We affirm.

Weakley County Court of Appeals 10/09/96
Melanie Miller, Ashley Miller Luna, & Gregory Luna v. Gary D. Niblack, M.D., Laboratory Investments Inc., et.al. - Concurring
02A01-9505-CV-00101

This is an action for negligence in the conducting of a paternity test. The  trial court entered summary judgment in favor of the appellees, Gary D. Niblack, M.D., Laboratory Investments, Inc. and Ren Laboratories, Inc. d/b/a Ren Histocompatibility Laboratory, a joint venture, and John Doe. The appellants, Melanie Miller, individually and as next friend for Ashley Miller Luna, a minor, and next friend of Gregory Luna, deceased, have appealed presenting the single issue of whether the trial court erred in doing so. For reasons hereinafter set forth, we affirm in part and reverse in part the  judgment of the trial court.

Shelby County Court of Appeals 10/09/96
Zella Balentine, v. Simon White, In Re: Paternity of Ashley Arron Balentine, a Minor
02A01-9508-JV-00190

Zella Balentine (“plaintiff”) filed a petition in the Juvenile Court of Hardin County seeking to have that court declare Simon White (“defendant”) to be the natural father of the parties’ minor child, Ashley Balentine. The Hardin County General Sessions Court, in its role as Juvenile Court, found defendant to be the father of the child and awarded plaintiff retroactive child support dating back to November 1, 1992. The sole issue on appeal is whether the trial court abused its discretion by not awarding retroactive child support back to the date of the child’s birth. For the reasons stated, we find that the trial court did abuse its discretion. Accordingly, we reverse as to this issue and remand this cause to that court for further proceedings.

Hardin County Court of Appeals 10/09/96
Howard A. Woods, v. Mutual of Omaha and CNA Insurance Company, and Eastwood Hospital
02A01-9510-CV-00218

Woods filed suit against various defendants; however, the judgment before us enters summary judgment in favor of Omaha only and was rendered final by the trial court in accordance with Rule 54.02 T.R.C.P. Thus, Omaha is the only Appellee for purposes of this appeal. This case concerns the validity of a “Compromise Settlement Release” executed by the appellant, Howard A. Woods (Woods), in favor of the appellee, Mutual of Omaha (Omaha). Woods challenges its validity on the ground of mental incapacity. The trial court entered summary judgment in favor of Omaha  Woods has appealed. For reasons hereinafter expressed, we affirm.

Shelby County Court of Appeals 10/09/96
Ethel Faye George v. Clyde Wayne Alexanderand Phillip R. Jones, M.D.
01S01-9505-CV-00084

In this medical malpractice case, the plaintiff, Ethel Faye George, appeals from the Court of Appeals’ affirmance of a judgment based on a jury verdict in favor of the defendants, Clyde Wayne Alexander, M.D. and Phillip R. Jones, M.D. This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff’s injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals.

Davidson County Supreme Court 10/07/96
Ethel Faye George v. Clyde Wayne Alexander, M.D. and Phillip R. Jones, M.D. - Concurring
01S01-9505-CV-00084

I agree with the result reached by the majoirity however, resolution of the important principles of comparative fault and rules of pleading and evidence presented in this case requires, in my view, a more precise articulation and analysis of the pleadings, the facts, and the legal issues.  As an example, the statement of the issue decided in themajority's introductory paragraph - if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff's injury - encompasses various situations controlled by different rules and cannot be decided as stated. Since the ruls of substantive law. pleading and evidence are correlated, I can best state my views in an integrated opinion rather than in a commentary on the majority's opinion.

 

Davidson County Supreme Court 10/07/96
Sherry Wimley v. Linda Rudolph, Commissioner of Tennessee Department of Human Services - Concurring
01S01-9507-CH-00108

The issue in this case is whether plaintiff can combine an original action under 42 U.S.C. § 1983 with a petition for judicial review under the Uniform Administration Procedures Act when the sole relief requested under the Section 1983 claim is an award of attorney fees. We affirm the Court of  Appeals’ decision allowing plaintiff an award of attorney fees.

Davidson County Supreme Court 10/07/96
Mitchell Brian Ramsey v. James G. Beavers
03S01-9509-CV-00104

In this case we are faced with the issue of the continued viability of the zone of danger test as a limitation on liability when plaintiff is neither physically injured nor in an area where physical injury is possible. We conclude that in cases such as this, in which plaintiff sensorily observes the injury and resulting death of his mother, recovery should be allowed under circumstances in which the incident which produces the emotional injuries and the emotional injuries are reasonably foreseeable.

Hamilton County Supreme Court 10/07/96
Walter P. Vogel v. Wells Fargo Guard Svcs. & Dina Tobin, Director of the Division of Workers' Compensation, Tennessee Department of Labor Second Injury Fund, State of Tennessee and Charles Burson, Atty General, State of Tennessee
03S01-9601-CV-00005

In this workers' compensation case, we are asked to review the trial court’s determination that Tennessee Code Annotated Section 50-6- 207(4)(A)(i) is unconstitutional and that plaintiff is entitled to life-time workers’ compensation benefits. Having considered the positions of the parties, the plain language and the legislative intent of the statute, and relevant authority in other jurisdictions, we reverse.

Knox County Supreme Court 10/07/96
Ella Mae Brown v. Marvin Douglas Brown - Concurring
01-A-01-9510-CV-00480

The wife of a prisoner in the custody of the Tennessee Department of Correction filed for divorce, claiming that her husband was guilty of inappropriate marital conduct. The husband answered and counterclaimed, and moved the court to order the wife to file a Bill of Particulars, setting forth the facts she was relying upon as grounds for the pending divorce. The court did not respond to the husband’s motion, nor did it respond to the husband’s Motion for Writ of Habeas Corpus ad Testificandum, but granted the wife an absolute divorce without affording the husband the opportunity to present any evidence. We reverse, and vacate the trial court’s order.

Davidson County Court of Appeals 10/04/96
Jimmy E. Smith v. Connie Sue Argo Smith
01A01-9602-GS-00074

The counter-plaintiff, Connie Argo Smith, appeals from the Trial Court’s judgment awarding her a divorce on grounds of cruel and inhuman treatment. The Trial Court also awarded her the marital residence and contents, a 1990 Astro Mini Van, and $100,000.00 cash. The Trial Court required the counter-defendant, Jimmy E. Smith, to pay all marital debts including the mortgage on the home. The court also awarded Mr. Smith a farm, commercial property, the “Smart Station” property, a houseboat, a bass boat, a Chevrolet truck, Mercedes automobile, riding mower, tractor, personal effects and unspecified stocks.

Warren County Court of Appeals 10/04/96
Jimmy E. Smith, v. Connie Sue Argo Smith - Concurring/Dissenting
01A01-9602-GS-00074

I concur with the majority’s conclusion that the criteria for determining the
validity of antenuptial agreements announced in Randolph v. Randolph, ___
S.W.2d ___, ___ (Tenn. 1996)1 should be applied to reconciliation agreements.
I also agree with the majority’s determination that the reconciliation agreement
involved in this case is not enforceable because Mr. Smith has not demonstrated
by a preponderance of the evidence that he disclosed the value of his interest in
National Sheet Metal Company to Ms. Smith or that Ms. Smith had independent
knowledge of the nature, extent and value of this interest. Accordingly, I agree
that the trial court erred by enforcing the reconciliation agreement.

Warren County Court of Appeals 10/04/96