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TAM-BYTES

March 28, 2016


Vol. 19, No. 13

TAM Webinars
Data Breach and Privacy Law: What Tennessee Attorneys Must
Know, 60-minute webinar presented by Russell Taber, with Riley
Warnock & Jacobson, in Nashville, on Tuesday, April 26, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Types of Damages in Personal Injury Suits: Essential Practice Tips
for Tennessee Attorneys, 60-minute webinar presented by Brad
Gilmer, with The Hardison Law Firm in Memphis, on Thursday, April
28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for


Tennessee Attorneys
WHEN: Friday, May 13
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;
Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood

HIGHLIGHTS: Recent developments in pre-suit notice and certificate


of good faith requirements; new summary judgment procedure; how to
turn the tables on a plaintiffs expert; defenses, such as patient
negligence, that may be raised to defeat a plaintiffs healthcare liability
claim; trial tips and tactics from both a plaintiffs and defense perspective;
deposition strategies to help you win at trial; using technology to excel as
an advocate in a healthcare liability case; review of recent healthcare
liability appellate court decisions; a panel discussion of hot topics in
healthcare liability actions; and ethical issues that arise when dealing with
evidence and experts.

Tennessee Business Law Conference


WHEN: Friday, May 20
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,
Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs
Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues in the Tennessee
Business Court Pilot Project; creative practices for handling business
disputes to avoid litigation; mistakes to avoid in drafting LLC operating
agreements; what every attorney needs to know when litigating a business
dispute in Tennessee; what federal tax issues arise when operating a
limited liability company; key issues in drafting an acquisition agreement;
top 10 negotiation strategies for obtaining a settlement in a business
dispute; and ethics for attorneys in business disputes including adequacy
of fees and charges.
For more information call us at (800) 274-6774 or visit www.mleesmith.com.

IN THIS WEEKS TAM-Bytes


Supreme Court upholds tax variance imposed upon taxpayer,
multistate wireless telecommunications company and its
subsidiaries, by Department of Revenue requiring taxpayer to pay
franchise and excise taxes on receipts from its Tennessee
customers;
Workers Comp Panel holds that when employees widow filed suit
to recover death benefits after employee died from lung disease
allegedly contracted in course of employment, and widow died
while suit was pending, widows estate had standing to pursue its
claim for any benefits to which widow would have been entitled
prior to her death;
Court of Appeals rules person who has prevailed in judicial election,
but not yet assumed office of judge, does not act as state officer or
employee for purposes of waiver provisions set forth in TCA 9-8307(b) when making administrative staffing decisions; and
General Assembly enacts Revised Uniform Fiduciary Access to
Digital Assets Act.

SUPREME COURT
TAXATION: Commissioner of Revenue properly determined that, under
Tennessees excise and franchise tax variance statutes, application of
standard statutory tax apportionment formula did not fairly represent
extent of business activity conducted in Tennessee by taxpayer, multistate
wireless telecommunications company and its subsidiaries; variance
imposed on taxpayer by Commissioner, which required taxpayer to pay
taxes on receipts from its Tennessee customers, comported with
Tennessee excise and franchise tax statutes, implementing Department of
Revenue rule, and statutory purpose of imposing upon corporations tax for
privilege of doing business in this state. Vodafone Americas Holdings
Inc. & Subsidiaries v. Roberts, 3/23/16, Nashville, Kirby, partial dissent
by Bivins, 51 pages.
http://www.tncourts.gov/sites/default/files/vodafone_opinion_majority.pdf

WORKERS COMP PANEL


WORKERS COMPENSATION: When widow filed suit seeking
workers compensation death benefits for herself and her son, stepson of
deceased worker, widow alleged that workers death was caused by lung
disease contracted in course of employment, while action was pending,
widow died, and amended complaint was filed by widows estate and her
son, trial court erred in holding that neither estate nor son had standing to
sue for benefits; widows estate has standing to pursue its claim for any
benefits to which widow would have been entitled prior to her death;
since widows death did not extinguish her standing to pursue benefits,
trial court erred in holding that her death extinguished sons standing to
seek benefits; there is no language in TCA 50-6-210(e)(3) that requires
surviving spouse to pursue action for death benefits on behalf of all
possible dependents; there is no language in statute that prevents
dependents other than surviving spouse from seeking benefits in their own
right, although all claims must be presented in single action. Stamps ex
rel. Estate of Stamps v. Trinity Marine Productions Inc., 3/22/16,
Nashville, Cantrell, 8 pages.
http://www.tncourts.gov/sites/default/files/stamps-trinity.opnjo_.pdf

COURT OF APPEALS
TORTS: When plaintiff filed action alleging tortious interference with
employment relationship by defendant, newly elected circuit court judge,
and defendant filed motion to dismiss, alleging that he was entitled to
immunity based upon his position as state officer, trial court properly
found that defendant did not enjoy any form of immunity and that waiver
provision, TCA 9-8-307(b), did not apply because defendant was not yet
state officer or employee when action at issue took place before he took
oath of office and assumed position; defendant was elected, but he was
not qualified until he took oath of office, and hence, he was also not
permitted to enter upon duties of office before taking oath of office; duties
of office necessarily include making administrative staffing decisions, and
defendant did not possess requisite authority to terminate plaintiffs
employment and was not acting as state officer or employee for purpose
of waiver provision set forth in TCA 9-8-307(b). Moore-Pennoyer v.
State, 3/21/16, Knoxville, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/pennoyeropn.pdf

EMPLOYMENT: In case in which 50-year-old plaintiff had worked for


FedEx Express (FedEx) since 1975, most recently as manager, in 2007,
internal investigation revealed that plaintiff had violated two of
companys policies, and after plaintiff was terminated in 11/07, he filed
suit alleging age discrimination, chancellor did not err in granting
summary judgment in favor of FedEx when plaintiffs evidence at
summary judgment was not sufficient to establish prima facie claim for
age discrimination; fact that plaintiff was replaced by younger, i.e., 44year-old, employee was not sufficient for reasonable factfinder to infer
age discrimination while courts have not articulated age difference that
is presumptively substantial, courts have held in past that seven-year age
difference is not sufficient; plaintiff failed to present evidence sufficient to
allow reasonable factfinder to conclude that FedExs explanation for his
termination was pretext for discrimination when FedEx presented
evidence that it terminated plaintiff for violating its Computer Resources
and Acceptable Conduct Policies by accessing pornographic materials on
his company-issued laptop computer plaintiffs computer was used to
intentionally access 29 pornographic websites over course of two days in
1/07. Yount v. FedEx Express, 3/17/16, Jackson, Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/yountdonaldopn.pdf

PROPERTY: In case in which property owner (Resha) was notified in


1979 that his property was in violation of Metropolitan Nashville zoning
ordinance, which allowed maximum of two dwelling units in that area
property contained five dwelling units Resha appealed zoning
administrators decision to Board of Zoning Appeals (BZA), which
permitted him to retain five units for as long as he owned property, in
2014, when Resha decided to sell property, BZA removed ownership
condition, and five nearby property owners filed writ of certiorari in
chancery court challenging BZAs decision, chancellor properly vacated
BZAs decision, finding that BZA acted arbitrarily in removing ownership
condition and then failing to consider effect of this decision, namely,
creation of new permanent variance without determination that property
met statutory standards. Bell v. Metropolitan Government of Nashville,
3/21/16, Nashville, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/belljarrettopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


determination that material change of circumstances existed warranting

change of childrens primary residential parent to father from mother


when parties had failed to follow terms of parenting plan trial court
found that mother had moved from marital home in Spring Hill to
Goodlettsville, thus creating distance which currently exists between
parents in apparent attempt to maintain two failed relationships with other
men in her life, children began spending more time in car driving back
and forth from school (or from fathers house) to mothers house, and
mother began trying to remove children from their schools in Maury
County, where they were thriving, to enroll them in Robertson County
schools. Masse v. Cottar, 3/21/16, Nashville, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/massetimothy.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL PROCEDURE: In case in which petitioner filed Petition
for Writ of Certiorari and Supersedeas (Petition) in circuit court, alleging
that juvenile court deprived him of due process because he did not receive
full and fair transfer hearing before juvenile judge, circuit court erred in
summarily dismissing petition based on petitioners failure to make partial
payment of filing fee; notarized Trust Fund Certification form signed by
trust fund custodian satisfied requirements of TCA 41-21-807(a), which
requires inmate to submit a certified copy of the trust fund account
statement, or the institutional equivalent; petition was subject to
dismissal because writ of certiorari was not available to petitioner. State v.
Jefferson, 3/23/16, Nashville, Holloway, 8 pages.
http://www.tncourts.gov/sites/default/files/jeffersontimothyl.pdf

PUBLIC CHAPTERS
COMMERCIAL LAW: Government Impostor and Deceptive
Advertisements Act designates as unfair or deceptive act or practice
advertisement of goods or services that causes likelihood of confusion that
person using or employing advertisement is part of or associated with unit
of any governmental entity, when such is not true. 2016 PC 594, effective
3/10/16, 4 pages.
http://share.tn.gov/sos/acts/109/pub/pc0594.pdf

ESTATES & TRUSTS: Revised Uniform Fiduciary Access to Digital


Assets Act grants personal representative of decedent right to access

content of electronic communication that custodian is permitted to


disclose, any catalogue of electronic communications sent or received by
decedent, and any other digital assets in which, at death, decedent had
right or interest. 2016 PC 570, effective 7/1/16, 10 pages.
http://share.tn.gov/sos/acts/109/pub/pc0570.pdf

CRIMINAL SENTENCING: Court may grant pretrial diversion or


judicial diversion to juveniles. 2016 PC 600, effective 7/1/16, 4 pages.
http://share.tn.gov/sos/acts/109/pub/pc0600.pdf

SIXTH CIRCUIT COURT OF APPEALS


CONSTITIONAL LAW: In case in which plaintiff was passenger in car
which was stopped by Sergeant Harris, during traffic stop, officers
attempted to prevent plaintiff from swallowing drugs in apparent effort to
destroy evidence, although incident was recorded by dashboard camera
mounted on second officers (Longs) vehicle, parties disputed whether
Harris discharged his Taser against plaintiffs torso in course of struggle,
plaintiff filed 42 USC 1983 action against Harris and Long (defendants),
alleging excessive force in course of his arrest, and district court ruled that
even if Harris did deploy his Taser, using Taser to prevent plaintiffs
destruction of evidence and potential drug overdose was objectively
reasonable and did not violate plaintiffs constitutional right to be free
from excessive force, assuming that reasonable jury could accept
plaintiffs strained interpretation of videotape, defendants would be
entitled to qualified immunity based on set of facts confronting them
when Harris allegedly deployed his Taser as depicted in video,
defendants ordered plaintiff multiple times to spit out pills, but plaintiff
continued to insist he had none, despite his evident attempt (as shown on
video) to swallow something without Long noticing, thus, officers had
good reason to believe plaintiff was attempting to destroy evidence, and
additionally, because officers could not know exactly what or how many
narcotics plaintiff had consumed, they reasonably believed plaintiff might
be at risk of adverse reaction or overdose. Pennington v. Terry, 3/23/16,
Suhrheinrich, 34 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0164n-06.pdf

COURT OF WORKERS COMPENSATION CLAIMS


WORKERS COMPENSATION: It is unlikely that employee will
prevail in establishing that his injury arose primarily out of or in course
and scope of employment when Dr. Lund stated his opinion finding
temporal relationship between employees symptoms and his work in
terms of possibility, when Dr. Bruce stated his opinion that more than
50% I feel was due to his pre-existing condition and not the work he was
performing, and when Bruce stated his opinion using correct statutory
standard for evaluating work-relatedness of medical condition where
competing causative factors are involved; by statutory definition,
physician must state causation opinion under more likely than not
considering all causes standard, as opposed to possibility standard.
East v. Heritage Hosiery, 10/16/15, Chattanooga, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1212&context=utk_workerscomp

WORKERS COMPENSATION: When employee and co-worker were


carrying 20-foot long stainless steel pipe when co-worker dropped his end
of pipe, causing employee to fall to ground, employee reported work
injury to his knee, and doctor diagnosed left knee medial meniscus tear
and large joint effusion, medical evidence was not sufficient to rebut
presumption of correctness afforded to panel-selected physician, who,
upon reviewing records showing employees pre-existing left knee
symptoms, could not opine that employees work injury caused meniscus
tear, and hence, employee did not come forward with sufficient medical
evidence from which to determine that he is likely to prevail on merits of
trial. Kimery v. Trillium Staffing, 10/13/15, Jackson, Luttrell, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1209&context=utk_workerscomp

WORKERS COMPENSATION: Employees request for


reimbursement of temporary partial disability benefits paid after doctor
placed employee at maximum medical improvement (MMI) is deferred
until employees right to permanent disability is determined as TCA 50-6207(2)(C) provides that employers remedy for payment of temporary
partial disability benefits after date of MMI is credit against employees
permanent disability award. Howard v. USXpress Enterprises Inc.,
10/16/15, Chattanooga, Wyatt, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1211&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