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TAM-BYTES

July 18, 2016


Vol. 19, No. 29
TAM Webinars
HIPAA Compliance for Attorneys and Firms: How to Avoid Liability
Headaches, 60-minute webinar presented by Chris Vrettos, with
Gideon, Cooper & Essary in Nashville, on Thursday, August 25, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Business Formations in Tennessee: Incorporate or Not?, 60-minute
webinar presented by Rachel Schaffer Lawson, with Schaffer Law Firm
in Nashville, on Wednesday, September 14, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
TennCare: Tips and Traps for Tennessee Elder Law and Estate
Planning Attorneys, 60-minute webinar presented by Amelia Crotwell,
with Elder Law of East Tennessee in Knoxville, on Tuesday, September
20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Events


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
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Family Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, October 6-7
Thursday & Friday, December 1-2
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: Chancellor James B. Cox, chancery court, 17th Judicial
District (Bedford, Lincoln, Marshall and Moore counties); Sandy Garrett, Chief
Disciplinary Counsel, Board of Professional Responsibility; Barry Gold, McWilliams
& Gold, Chattanooga; James (Jimmy) D. Helton, II, Helton Law Office, Brentwood;
Judge Jeff Hollingsworth, circuit court, Hamilton County; Stanley A. Kweller,
Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Brent Lankford,
Stites & Harbison PLLC, Nashville; Jeff Levy, Nashville attorney; Sean J. Martin,
Martin Heller Potempa & Sheppard, Nashville; Marlene Moses, MTR Family Law,
PLLC, Nashville; Kevin Shepherd, Maryville attorney; Judge Keith Siskin, circuit
court, 16th Judicial District (Cannon and Rutherford counties); Greg Smith, Stites &
Harbison PLLC, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial
District (Greene, Hamblen, Hancock, and Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton


PLLC, Memphis; Judge Joe Binkley, circuit court, Davidson County; Judge Robert
L. Childers, circuit court, Shelby County; J. Todd Faulkner, Law Office of J. Todd
Faulkner, Nashville; Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy)
D. Helton, II, Helton Law Office, Brentwood; Candi Henry, Dodson Parker Behm &
Capparella PC, Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard,
Nashville; Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd,
Maryville attorney; Greg Smith, Stites & Harbison PLLC, Nashville; Eileen
Burkhalter Smith, Disciplinary Counsel, Board of Professional Responsibility; and
Judge Joseph Woodruff, circuit court, 21st Judicial District (Hickman, Lewis, Perry,
and Williamson counties).

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;


technology for the family law practitioner; retirement plans and QDROs; practical tips
from judges across the state; spousal/child support awarding, modifying, or
terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family
matters; case law/legislative update; ethics and professionalism in family law practice;
and attorneys ethical use of social media.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/family-law-2016
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Tennessee Real Estate Law Conference


WHEN: Friday, October 14
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: T. Kevin Bruce, Hagler Bruce & Turner, Memphis; Griffin Dunham,
Dunham Hildebrand, Nashville; Matthew Ellis, Batson Nolan, Clarksville; Pete Ezell,
Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville; David Wilson Long,
Long, Ragsdale & Waters, Knoxville; Kirk Moser, Old Republic National Title
Insurance Company, Nashville; Scott Thomas, Bass, Berry & Sims, Nashville; and
Wes Turner, Gullett Sanford, Robinson & Martin, Nashville.

HIGHLIGHTS: Special considerations for commercial and investment


transactions, including 1031 exchanges; opinion letters in real estate transactions; hot
topics in title insurance; TILA-RESPA issues, including new requirements and
necessary information; the effect of bankruptcy on commercial and residential real
estate; environmental issues in real estate transactions; ethical considerations in real
estate law; and real estate case law/legislative update.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-real-estate-2016
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Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: Thursday & Friday, October 20-21
Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)

OCTOBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Michael W. Dale, Harvill Ross
Hogan and Ragland, Clarksville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Carla Lovell, Sherrard
Roe Voight & Harbison, PLC, Nashville; Barbara Boone McGinnis, Elder Law
Practice of Timothy L. Takacs, Hendersonville; Hunter R. Mobley, Howard Mobley
Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm, Brentwood;
Michelle Poss, Sobel, Poss & Moore, Nashville; and M. Matthew Thornton,
Bourland, Heflin, Alvarez, Minor & Matthews, PLC, Memphis.

DECEMBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere &
Bell PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker,
Behm & Capparella P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson,
PLLC, Knoxville; Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight &
Harbison, PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek,
PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville;
Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss &
Moore, Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L.
Takacs, Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips
for probating a will and administering estates; planning for digital assets; probate
litigation case law and legislative update; ethical issues facing trust and estate planning
attorneys; and ethics in elder care.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/probate
IN THIS WEEKS TAM-Bytes
Supreme Court sets aside approach for determining whether
shareholder claim is direct or derivative described in Hadden and
adopts for Tennessee analytical framework enunciated by Delaware
Supreme Court in Tooley;

Workers Comp Appeals Board, in issue of first impression,


considers application of TCA 50-6-207(3)(B) when employee makes
request for increased benefits;
Workers Comp Appeals Board rules commercial driver who alleged
that he was injured while operating touring coach during concert
tour was employee of company that owned coach, not loaned servant
of artists tour management company;
Court of Appeals, in healthcare liability suit, rules trial courts
refusal to excuse compliance with pre-suit notice requirement was
not within range of acceptable alternatives when counsel explained
that his son, born on 3/6/14, experienced frequent periods of
hospitalization before finally dying on 6/20/14, four days prior to
filing of complaint;
Court of Appeals says that simple fact that husband may not be able
to retire at age he anticipated during parties marriage does not
equate to abuse of discretion by trial court in awarding husbands
two pensions to wife; and
Court of Criminal Appeals affirms first degree murder convictions
of mother who suffocated her newborn twins by holding her hand
over first babys mouth until he stopped crying, and after birth of
second child, holding her hand over his mouth until he also
stopped crying.

SUPREME COURT
COMMERCIAL LAW: It is prudent to set aside approach for
determining whether shareholder claim is direct or derivative described in
Hadden v. City of Gatlinburg, 746 SW2d 687 (Tenn. 1988), and adopt for
Tennessee analytical framework enunciated by Delaware Supreme Court in
Tooley v. Donelson, Luftkin, & Jenrette Inc., 845 A2d 1031 (Del. 2004) ;
Tooley sets forth two-part inquiry -- (1) who suffered alleged harm
(corporation or suing stockholders, individually), and who would receive
benefit of any recovery or other remedy (corporation or stockholders,
individually)?; in conflict among siblings who were shareholders in closely
held corporation, shareholders who bought assets of corporation had
standing to assert claim against shareholder who began competing business
for violation of trial court's orders and to recover their actual damages
arising out of his contemptuous conduct, but buyers did not have standing
to bring direct claim for damages resulting from shareholder's breach of his
fiduciary duty to original corporation or resulting from shareholder's

intentional interference with business relations. Keller v. Estate of


McRedmond, 7/11/16, Nashville, Kirby, 4-0, 37 pages.
http://www.tncourts.gov/sites/default/files/kellermcredmondc.opn_.pdf

WORKERS COMP APPEALS BOARD


WORKERS COMPENSATION: When, at time of injury, employees
hourly wage included summer hours bonus, period of compensation set
out in settlement agreement ended in 10/15, employees hourly rate of pay
no longer included bonus, and employee, relying on TCA 50-6-207(3)(B)
which states that if at time period of compensation provided by statute
ends, employee has not returned to work with any employer or has
returned to work and is receiving wages or salary that is less than 100% of
wages or salary employee received from pre-injury employer on date of
injury, injured employee may file claim for increased benefits -- contends
wages she received at end of period of compensation reflected in
settlement agreement were less than her wages at time of her injury,
entitling her to increased benefits, trial court did not err in finding that
employee was not entitled to increased benefits; there was no basis in
language of TCA 50-6-207 to conclude that legislature intended that
employee receiving summer hours bonus or shift differential at time
employee suffers work injury is entitled to increased benefits under facts
and circumstances presented in this case; legislatures failure to provide
definition of wages under these circumstances suggests that
interpretation applied under pre-reform law would continue to be
applicable to post-reform cases. Marshall v. Mueller Co., 7/11/16,
Hensley, 24 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1478&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1353&context=utk_workerscomp

WORKERS COMPENSATION: When claimant was commercial driver


who alleged that he was injured while operating touring coach during 19day concert tour, while driving coach, claimant experienced pain and
symptoms in his shoulder, left hip, and lower back, which he attributed to
defective and/or poorly-maintained seat and rough road conditions,
company that owned coach denied that claimant was employee, and artists
tour management company also denied claim, trial court properly
determined that claimant was employee of company that owned coach;
preponderance of evidence supports trial courts determination that
claimant was not loaned servant when although artists tour management
company was contractually obligated to pay coach drivers directly and

claimant followed some day-to-day instructions from artist tour


management company personnel regarding operation of coach, claimants
primary job responsibilities, including care and maintenance of coach,
daily cleaning activities, and safe transport of clients of company that
owned coach from one venue to another, was essentially work of company
owning coach. Smiley v. Four Seasons Coach Leasing Inc., 7/15/16,
Conner, 27 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1483&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1436&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff filed healthcare liability complaint with attached
certificate of good faith based on care and treatment she received at
defendant hospital, defendant sought dismissal of suit for failure to comply
with pre-suit notice and good faith requirements applicable to healthcare
liability actions, plaintiff argued that failure to comply with necessary
requirements should be excused for extraordinary cause as evidenced by
death of her legal counsels son four days prior to filing of complaint,
defendant conceded that extraordinary cause existed to excuse any
deficiencies in complaint and failure to comply with good faith statute, and
defendant maintained that dismissal was appropriate based upon failure to
provide adequate pre-suit notice because the birth, illness, and death of
[counsels] son all occurred well after service of the defective pre-suit
notice, trial courts refusal to excuse compliance was not within range of
acceptable alternatives given legal principles and evidence presented. Kirby
v. Sumner Regional Medical Center, 7/12/16, Nashville, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/kirbybetty.opn_.pdf

PROPERTY: When determining location of boundary line in dispute, trial


court should look first to the natural objects or landmarks on the property,
then to the artificial objects or landmarks on the property, then to the
boundary lines of adjacent pieces of property, and finally to courses and
distances contained in documents relevant to the disputed property; when
establishing boundary, landowner may rely on deeds other than his or her
own. Michaels v. Drinnon, 7/15/16, Knoxville, Frierson, 11 pages.
http://www.tncourts.gov/sites/default/files/michaels.opn_.final_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts award
to wife of husbands two pensions when award ensures that wife has
sufficient income upon which to survive after demise of parties
relationship, and simple fact that husband may not be able to retire at age

he anticipated during parties marriage does not equate to abuse of


discretion by trial court in awarding this property to wife; evidence did not
preponderate against trial courts award to wife of $2,000 per month in
alimony in futuro despite fact that wifes adult son resides in her home
son is unemployed and does not contribute financially to household, and
trial court specifically excluded some expenses that it found were
attributable to son in determining that wifes expenses were $4,453, rather
than nearly $9,000 in expenses that wife alleged; given fact that wife has
no income apart from pensions that she received as part of parties marital
property dissolution, wife is in need of award of long-term alimony; trial
court did not abuse discretion in declining to consider husbands
anticipated retirement, when he turns 65 one year after divorce, in reaching
its decision concerning alimony given fact that such issue is more
appropriately decided in future modification proceeding if and when
husband determines that retirement is actually feasible. Naylor v. Naylor,
7/15/16, Jackson, Stafford, 19 pages.
http://www.tncourts.gov/sites/default/files/naylorsopn.pdf

CIVIL PROCEDURE: When plaintiff filed suit to set aside recorded deed
on basis that instrument contained forged signature, defendants counsel,
who filed answer to complaint, was attorney of record at time of trial, on
date of trial, defendants counsel did not appear in court because he had
been recently suspended from practice of law, fact unknown to defendant
until she appeared for trial, when trial court elected to proceed with hearing,
defendant represented herself, upon conclusion of trial, trial court
announced decision in favor of plaintiff, determining that deed contained
forged signature and ordering that deed be set aside, defendant retained new
counsel, who filed motion for new trial, which was denied, trial court erred
in failing to order continuance of trial; case is remanded for new trial on
merits. Tidwell v. Burkes, 7/8/16, Nashville, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/tidwell.jo_.elaine.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL LAW: Evidence was sufficient to convict defendant of two
counts of first degree felony murder, two counts of first degree
premeditated murder, and two counts of aggravated child abuse in
connection with death of her newborn twins when defendant, who had
close relationship with her religious, conservative family and was engaged
to be married, became pregnant, but was afraid to reveal her pregnancy to
her parents or her fianc, who was not father of children, on night she gave

birth, defendant held her hand over first babys mouth until he stopped
crying, after birth of second child, defendant again held her hand over his
mouth until he stopped crying, and defendant admitted that she knew that
babies could not breathe with her hand over their mouths; defendant was
not denied her right to impartial judge, and neither trial judges comments,
including threat to exclude defendant from courtroom, nor trial judges
decision to limit cross-examination of defendants father regarding
defendants church activities does not indicate bias warranting recusal.
State v. Lowe, 7/12/16, Nashville, Williams, 72 pages.
http://www.tncourts.gov/sites/default/files/lowelb.opn6_.pdf

COURT OF WORKERS COMP CLAIMS


WORKERS COMPENSATION: In case in which employee,
journeyman wireman, testified that he sustained injury on 1/24/15 when he
felt twinge in his lower right back after lifting coil weighing
approximately 100 pounds, employer had notice of injury when employee
gave notice to foreman at time of incident; when employer had notice of
injury on 1/24/15 but did not offer panel of physicians to employee until on
or about 8/3/15, and employer did not demonstrate that it authorized and
scheduled employee to see physician selected from belated panel,
employees request that employer pay for medical expenses employee
incurred after 9/3/15 is granted. Mull v. Henkels & McCoy, 2/18/16,
Chattanooga, Headrick, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1333&context=utk_workerscomp

WORKERS COMPENSATION: Employee came forward with


sufficient proof of medical causation in support of his right shoulder
injury when Dr. Nord, panel-selected physician, opined that shoulder
condition was work related; when employer contended that Nords
surgical recommendation should be denied based upon opinion of Dr.
Cutright, unitization review physician, employer offered no proof at
Expedited Hearing evidencing that Cutright or employer provided copy
of report and appeal form to employee within required time period set
forth in Rule 0800-02-06.04(2), and hence, employer did not carry its
burden establishing it complied with rules governing utilization review;
when Nord advised Cutright that employee underwent conservative
treatment when he had physical therapy during his recovery from medial
clavicle abscess, Nord advised Cutright that he was hesitant to place a
cortisone shot so close to the location of the abscess, and Cutright noted
this was reason Nord elected surgical intervention for rotator cuff tear,

based upon totality of proof, Nords opinion and treatment


recommendation are more persuasive. Thomas v. MTD Products Inc.,
2/18/16, Jackson, Luttrell, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1334&context=utk_workerscomp

WORKERS COMPENSATION: Employee, who alleged that he


suffered tick borne illness on 7/10/15 after receiving multiple tick bites
while working in woods and fields on various job sites, failed to provide
sufficient evidence to establish that he is likely to prevail at hearing on
merits in establishing he suffered accidental injury as defined by TCA
50-6-102(14)(A) when, as to when and where bite actually occurred,
employee offered only speculation and conjecture, which cannot serve as
justification for provision of benefits. Erickson v. Wilson & Associates
P.C., 2/19/16, Cookeville, Durham 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1337&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