TAM-BYTES

June 13, 2016

Vol. 19, No. 24
TAM Webinars
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
Test for General Jurisdiction over Corporations: At Home Not
Doing Business, 60-minute webinar presented by Cannon Lawley with
Huie, Fernambucq & Stewart in Birmingham, on Wednesday, July 20, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
How to Handle Creditor Claims and Debts When Administering a
Tennessee Estate, 60-minute webinar presented by Grayson Smith
Cannon with Phillips & Ingrum in Gallatin, on Wednesday, July 20, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Estate Planning in Tennessee: Digital Assets and Social Media

Accounts, 60-minute webinar presented by Donald Farinato with Hodges,
Doughty & Carson in Knoxville, on Thursday, July 21, at 10 a.m. (Central),
11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Injury Damages in Tennessee after West v. Shelby County Healthcare,
60-minute webinar presented by Brandon Bass with Law Offices of John
Day in Brentwood, on Tuesday, July 26, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
Contract Law for Tennessee Family Lawyers: Essential Principles for
Enforcement of Prenups and MDAs, 60-minute webinar presented by
Candi Henry with Dodson Parker Behm & Capparella in Nashville, on
Wednesday, July 27, 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, Tennessee Senior Judge; 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

IN THIS WEEKS TAM-Bytes

Court of Appeals, in malicious prosecution case, distinguishes
between situations in which private parties report what they believe to
be true information to police and situations in which private parties
knowingly tell police false information;
Court of Appeals affirms dismissal of healthcare corporations state
law cause of action for implied-in-law contracts as to ERISAgoverned plans on basis that ERISA preempts cause of action and as
to non-ERISA claims on ground that duties imposed on plaintiffs by
EMTALA and defendant BlueCross BlueShield of Tennessee by TCA
56-7-2355 do not create implied-in-law contractual relationship;
Court of Appeals reiterates that attorney fees are not available in
criminal contempt case;
Court of Criminal Appeals says trial judge erred by admitting
defendants cell phone records into evidence when they were not
admitted pursuant to procedure set forth in TCA 24-7-116, but finds
error was harmless;
Court of Criminal Appeals says search warrant authorized search of
defendants computer despite fact that he was not named in search
warrant or affidavit as occupant of residence to be searched or as
owner of items to be seized;
Court of Criminal Appeals rules anonymous tip, standing alone, did
not provide sufficient indicia of illegality to warrant investigatory stop
of defendants vehicle and that officers pre-seizure observations of
defendant did not cure defects of anonymous tip; and
General Assembly removes spiritual treatment exemption from
criminal prosecution.

COURT OF APPEALS
TORTS: When plaintiff was arrested and subsequently indicted for two
criminal offenses based on statements given to police by two employees at
defendants store, one of charges was dismissed on day of trial, jury found
defendant not guilty of other charge, and plaintiff filed suit asserting several
claims, trial court erred in granting defendant summary judgment on
malicious prosecution claim when there was genuine dispute of fact as to
whether defendants employees instituted criminal proceedings against
plaintiff by knowingly providing police with false information about
plaintiffs actions on day at issue and when there was genuine dispute of
material fact concerning whether defendants employees knowingly gave
police false information when they said that plaintiff assaulted store
employee with box cutter; there is distinction between situations in which
private parties report what they believe to be true information to police and
situations in which private parties knowingly tell police false information; in
former situation, private party has not instituted prosecution that results, but,
in latter situation, private party has instituted resulting prosecution because
he or she has made it impossible for public officials to intelligently exercise
their discretion to prosecute; taking active part in or exercising control over
prosecution is requirement when liability for malicious prosecution is based
on continuation of prosecution; if party institutes prosecution without
probable cause, then that initiation is sufficient to subject party to liability if
all other elements of malicious prosecution are met; claims based on
existence of one claim does not render other claim superfluous or
unnecessary; trial court did not err in granting defendant summary judgment
on false imprisonment claim. Gordon v. Tractor Supply Co., 6/8/16,
Nashville, Clement, 19 pages.
http://www.tncourts.gov/sites/default/files/gordonr_-_opn.pdf

INSURANCE: In suit by healthcare corporations (plaintiffs) to recover

costs for emergency medical services rendered to patients participating in
defendant BlueCross BlueShield of Tennessees insurance plans, inasmuch
as plaintiffs rely on relationship between defendant and participants in plans
to establish relationship that is basis of implied-in-law contract, plaintiffs
direct cause of action is alternative enforcement mechanism to ERISA and is
preempted; because state courts have only been granted jurisdiction to hear
causes of action arising under 29 USC 1132(a)(1)(B) and (7) and because
cause of action for violations of 29 USC 1133 must be brought under 29
USC 1132(a)(3), only federal courts have subject matter jurisdiction to hear

arguments such as that made by plaintiffs that defendants administrative

appeals procedures do not comply with 29 USC 1133 and its implementing
regulation; duty imposed on plaintiffs by Emergency Medical Treatment &
Labor Act (EMTALA) and prohibition imposed on defendant by TCA 56-72355 do not create implied-in-law contractual relationship upon which to
sustain plaintiffs cause of action; excluding 24 claims on which
administrative appeals were initiated and six claims arising out of State Plan
or State Teachers Active Plan, summary judgment should have been granted
on remaining 534 non-ERISA claims because neither patient nor plaintiffs,
as assignees, initiated grievance procedures before suit was filed. HCA
Health Services of Tennessee Inc. v. BlueCross BlueShield of Tennessee
Inc., 6/9/16, Nashville, Dinkins, 26 pages.
http://www.tncourts.gov/sites/default/files/hcav.bcbst_.opn_.pdf

FAMILY LAW: Criminal contempt petitions do not operate to enforce

child support orders or adjudicate custody; criminal contempt statute, TCA
29-9-103(b), expressly limits punishment that court may award, and it
makes no provision for recovery of attorney fees; because attorney fees
incurred in petition for criminal contempt arising in context of child
support proceeding are not provided for by statute or other rule and
because purpose of criminal contempt is to uphold courts authority, not to
enforce private rights of party, trial court erred in awarding mother
attorney fees related to filing of her petition for criminal contempt. Watts v.
Watts, 6/8/16, Nashville, Clement, 17 pages.
http://www.tncourts.gov/sites/default/files/wattsjoyce.opn_.pdf

CIVIL PROCEDURE: When appellees, attorneys, represented appellants

Story and Coffey in their lenders liability suit against underlying defendants
(Thompson, First National Bank of Oneida, and Peoples Bank of South), on
5/7/13, trial court granted summary judgment in favor of First National Bank
of Oneida and Thompson, Becker, one of appellees, allegedly advised
appellants that he would file motion to correct what he perceived was
erroneous grant of motion for summary judgment, Becker filed motion to
alter or amend trial courts judgment, motion was never heard, shortly before
trial on remaining claims, Becker allegedly informed appellants that their
damages evidence was not ready for trial, Becker advised appellants to
voluntarily dismiss their remaining claims and to refile suit within one year,
on 11/13/13 and, upon appellants notice of voluntary dismissal, trial court
entered order of dismissal as to appellants remaining claims, appellants did
not refile their nonsuited claims, and on 9/3/14, appellants filed suit for legal

malpractice against appellees, trial court properly ruled that suit was barred
by statute of limitation; appellants contended that statute of limitation on
their legal malpractice case did not begin to run until Peoples Bank of
South, last defendant in underlying suit, was dismissed by order of 11/13/13,
but finality and exhaustion of all remedy is not gravamen of discovery in
legal malpractice cases; it is knowledge of facts sufficient to put plaintiff on
notice that injury has been sustained which is crucial; appellants had
sufficient knowledge of injury, which was likely based on some legal
malpractice, on 5/7/13, when their claims against National Bank of Oneida
and Thompson were dismissed, and statute of limitation began to run on
5/7/13, making 9/3/14 suit time-barred. Story v. Bunstein, 6/9/16,
Knoxville, Armstrong, 10 pages.
http://www.tncourts.gov/sites/default/files/story_v._bunstein.pdf

CIVIL PROCEDURE: In case in which appellant was charged with cruelty

to three horses in violation of TCA 39-14-202(a)(2), appellant was ordered
to post $35,000 security bond for care of horses pending resolution of
criminal charges, and general sessions court ordered appellant to post bond
within 14 days or else horses would be considered abandoned and forfeited
to state in accordance with TCA 39-14-210(g)(2), action described in TCA
39-14-210(g)(2) is not forfeiture, rather, TCA 39-14-201s security and
abandonment provisions are part of criminal procedure pending trial and are
therefore not within jurisdiction of Court of Appeals; because case involves
appeal of criminal matter, appeal is dismissed for lack of subject matter
jurisdiction. State v. Tillilie, 6/7/16, Jackson, Gibson, 7 pages.
http://www.tncourts.gov/sites/default/files/tilliliecarolynopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In rape case, trial judge erred by admitting defendants cell
phone records into evidence when they were not admitted pursuant to
procedure set forth in TCA 24-7-116 but, instead, were introduced through
detectives testimony, but error was harmless when admitted phone records
merely added credence to that which three witnesses testified to, i.e., that
victim did not and could not have called defendant and invited him over
because she did not have phone. State v. Hill, 6/9/16, Jackson,
Wedemeyer, 19 pages.
http://www.tncourts.gov/sites/default/files/hillopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was charged with

one count of sexual exploitation of minor, and defendants motion to
suppress evidence obtained from his computer pursuant to search warrant
was granted by trial court, because search warrant authorized search of
defendants computer despite fact that he was not named in search warrant
or affidavit as occupant of residence to be searched or as owner of items to
be seized, trial court erred in granting motion to suppress; officers executing
search warrant may assume that all personal property belongs to the
resident of the premises and is subject to search unless officers have reason
to know that item belongs to visitor. State v. Coblentz, 6/10/16, Knoxville,
Easter, 8 pages.
http://www.tncourts.gov/sites/default/files/coblentzrobertmerle.pdf

CONSTITUTIONAL LAW: TCA 39-15-402, which creates criminal

offense of aggravated child neglect, is not unconstitutionally vague
despite fact that it does not define term neglect; statute is sufficiently
clear to put ordinary person of common intelligence on notice that it is
crime to knowingly fail to provide reasonable attention or supervision to
child when such omission results in adverse effect to health and welfare of
child; trial judge erred by permitting medical expert to offer her opinion
that defendants conduct constituted neglect when experts opinion as to
ultimate issue was improper because jury could have readily drawn its
own conclusion about whether defendants conduct constituted neglect
without expert opinion, but error was harmless when defendant admitted
that his conduct constituted neglect, and jury was given clear and
thorough instructions on elements of crime. State v. Burton, 6/9/16,
Knoxville, Easter, 15 pages.
http://www.tncourts.gov/sites/default/files/burtondeweyopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of two

counts of resisting arrest when defendants actions rose to level of force
necessary to sustain conviction for resisting arrest defendant attempted to
kick window out of officers patrol car and attempted to get his hands in
front of him, defendant was eventually successful in getting his hands in
front of himself, causing officer and deputy to have to handcuff him again,
and as officers attempted to recuff him, defendant began [p]ulling, tugging
away from [them], yelling, screaming[,] [and] [j]ust being disorderly and
uncooperative. State v. Applegate, 6/10/16, Knoxville, Thomas,
concurrence by Witt, 10 pages.
http://www.tncourts.gov/sites/default/files/applegatebillyopn.pdf
http://www.tncourts.gov/sites/default/files/applegatebillycon.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of

tampering with evidence when defendant, police officer, gave serial
number to his girlfriend (complainant) after burglary of her home knowing
that it did not correspond to complainants DVD player, instructed her to
give number to police, but not to tell police from whom she obtained
number, subsequently resulting in unjustified arrest of two young men in
connection with burglary; presenting false evidence by providing serial
number to criminal complainant with instructions to give it to law
enforcement to confirm ownership of property sufficiently implicates
policies supporting evidence tampering statute. State v. Butler, 6/6/16,
Jackson, Montgomery, 24 pages.
http://www.tncourts.gov/sites/default/files/butlerterryopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge erred in denying

defendants motion to suppress evidence obtained as result of stop of her
vehicle when anonymous tip, standing alone, did not provide sufficient
indicia of illegality to warrant investigatory stop of defendants vehicle, and
officers pre-seizure observations of defendant did not cure defects of
anonymous tip when approximately one minute elapsed between officers
arrival on scene and his detention of defendant by seizing her drivers
license, only observation officer made prior to detaining defendant was that
she had watery eyes, and officer admitted at suppression hearing that he
did not suspect defendant of being impaired when he took her license;
presence of another, clearly intoxicated individual in company of defendant
when officer approached vehicle, he observed man, who was clearly
intoxicated and subsequently determined to be owner of vehicle, standing
next to driver-side door of truck, while defendant was sitting in drivers seat
has no probative value to officers determination of whether defendant,
herself, was impaired; trial courts judgment is vacated, and case is
dismissed. State v. Wascher, 6/6/16, Knoxville, McMullen, 9 pages
http://www.tncourts.gov/sites/default/files/wascherjuneopn.pdf

PUBLIC CHAPTERS
CRIMINAL LAW: Spiritual treatment exemption is removed. 2016 PC
951, effective 7/1/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0951.pdf

CRIMINAL LAW: Definition of unconsented contact under stalking

statute includes sending of electronic mail, text messages, or any other type
of electronic message sent using internet, web sites, or social media
platform. 2016 PC 969, effective 7/1/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0969.pdf

CRIMINAL PROCEDURE: Statute of limitation for aggravated statutory

rape is extended. 2016 PC 958, effective 7/1/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0958.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, corrections officer,
stood up from chair and heard something pop in his left knee, x-ray of knee
revealed no acute fracture or dislocation, orthopedists diagnosed knee sprain,
and employee sought medical benefits and temporary disability benefits,
employee did not come forward with sufficient evidence from which to
conclude that he is likely to prevail at hearing on merits on issue of
compensability; pop in employees knee was idiopathic incident because
of its unexplained origin or cause; in order for idiopathic injury to be
compensable, there must be employment hazard that causes or exacerbates
injury, and there was no proof of any hazard that caused or exacerbated
employees knee sprain. Caldwell v. Corrections Corp. of America,
12/22/15, Jackson, Luttrell, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1280&context=utk_workerscomp

WORKERS COMPENSATION: When co-worker driving tow motor

crashed into employees workstation, and employee jumped out of way,
employee is unlikely to prevail at hearing on merits concerning his request
for treatment of wrist pain as authorized treating doctor did not think wrist
condition was casually related to workplace accident; based on evidence at
this time, employee is likely to prevail at hearing on merits in proving causal
relationship between his cervical pain, hand tingling, and workplace accident
when authorized treating doctor, with knowledge that employee had
complained of cervical pain and finger tingling before 11/19/14 work
accident, attributed 90% of cause of employees cervical pain and hand
tingling to workplace incident; while not stated in specific statutory terms,
doctors decision placing employee at maximum medical improvement and
then recommending further pain management, satisfies TCA 50-6-204(j)(1)s
requirement that authorized treating physician determine that pain is

persisting beyond expected period for healing. Garrard v. Mechanical

Components of Tennessee, 12/22/15, Nashville, Baker, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1282&context=utk_workerscomp

WORKERS COMPENSATION: When employee stepped off ladder from

second rung on 5/1/15, spraining his right knee, infectious disease developed
in employees right leg and left arm, employee underwent 18 surgeries to
treat necrotizing infection of left arm and right leg, and employer contended
that infectious condition resulted from employees diabetes, preponderance
of evidence opinions of unauthorized physicians rebuts authorized
treating physicians opinion that employees injury, including necrotizing
fasciitis he developed, is not work related; in light of lack of evidence
indicating what, if any, communication transpired between employee and
employer and/or its carrier prior to employee seeking emergency care at
hospital on 6/1/15 and absence of evidence pertaining to employees
physical condition and thought process he undertook prior to seeking
emergent care at hospital on 6/1/15, it cannot be assessed at this time
whether employer must pay for treatment employee received at hospital for
necrotizing fasciitis that developed in right leg and left arm, and accordingly,
employees request for medical benefits is denied other than to affirm
employers liability for reasonable and necessary treatment of employees
work injury by authorized treating physician. Schultz v. Astec Inc.,
12/22/15, Chattanooga, Wyatt, 15 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1274&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