Monday, May 28, 2012

2012 Tennessee Legislative Update - Tort Bills

Posted on behalf of Daniel Clayton
Recently, the Tennessee Legislature concluded its session.  In 2011, The Tennessee Civil Justice Act - which substantially changed 200 years of Civil Justice Tort Law in Tennessee was passed.  This year, there were numerous attempts to make it more difficult to hold corporations and individuals accountable for their actions.  Below is a sampling of some of the bills impacting Tennessee tort law that were passed.
PLEASE NOTE:  All the Public Chapter (PC) references contain a direct link to the final legislation as passed by double clicking on the reference.  Currently, the Senate bills and House bills do not contain direct links because these bills are not in a finalized format and may contain many amendments to the original bills.  Please utilize the Tennessee General Assembly website, to research any Senate or House bill.
Loser Pays:
Senate Bill (SB) 2638/House Bill (HB) 3124 (Johnson/Dennis) makes it mandatory for a judge to award reasonable fees to a party who prevails on a motion to dismiss for failure to state a claim upon which relief may be granted. The fees are capped at $10,000. The sanctions do not apply to: (1.) Actions filed by or against the state.  (2.) Any claim that is dismissed by the granting of a motion to dismiss that was filed more than 60 days after the moving party received service of the complaint. (3.) Any claim that the party against whom the motion to dismiss was filed withdrew or in good faith amended.  (4.) Pro se litigants who have not acted unreasonably in bringing or refusing to withdraw the claim.  (5.) Specified non-frivolous claims brought in good faith to change or challenge existing law.   (6.) Any claim for which relief could be granted under a law in effect at the time the motion was filed.
This law potentially impacts car accident cases. The Farm Bureau and the insurance industry coalition amended a caption bill in the last few weeks of the session to overturn the precedent in the TN Supreme Court cases Allstate and Morrison.  SB2271/HB2452 (Tracy/Sargent) provides that the signature of a party to an insurance contract on an application, amendment, or other document shall create a rebuttable presumption that the statements provided by the person bind all insureds under the contract and that the person signing such document has read, understands, and accepts the contents of such document.  It also creates a rebuttable presumption that the payment of a premium is acceptance by the insured of the coverage provided under an insurance contract.
After years of debating about whether appellate judges should be elected in TN, a constitutional amendment to establish a selection system was passed this year. SJR710 (Kelsey) is an amendment to the Tennessee Constitution that proposes a modified federal system where the Governor appoints a candidate, the Legislature then confirms the candidate and the candidate is elected by a retention election thereafter.  This is the first step in placing it on the ballot for all voters in 2014.
Health Care Liability: 
SB2789/HB2979 (Kelsey/Dennis) as originally filed allowed defense attorneys to obtain all the plaintiff’s mental health and drug treatment records as well as talk ex parte to any of the plaintiff’s doctors without court approval.  As amended and passed, the bill permits the defendant to get a protective order from the court to talk ex parte to the plaintiff’s treating physicians about relevant information.  The plaintiff can object to the order, and it sets out procedures for that process. This bill impacts medical malpractice cases (now known as health care liability action) in Tennessee
SB2528/HB2813 (Barnes/Sontany) now Public Chapter PC678 adds physician assistants to the list of medical professionals who are exempt from subpoena to trial.
Workers Compensation:
A few changes occurred this year in workers compensation law.
SB2923/HB2808 (Overbey/Dennis) allows either party to file suit in the county in which the employee resided at the time of the injury.
SB3315/HB3372 (Johnson/White) makes changes to Pain Management procedures.   The bill authorizes a physician to order pain management for an employee determined to have persisting pain as it applies to workers' compensation law. It entitles an employee to a panel of physicians if the treating physician makes a referral for pain management treatment. The bill requires the injured employee to sign a formal agreement with the physician acknowledging the conditions under which the injured or disabled employee may continue to be prescribed such controlled substances and agreeing to comply with such conditions.   If the employee violates the agreement the employer may terminate the pain management.  The employee then has the right to file a request for assistance from a workers compensation specialist or petition the court for further treatment.

Immunity bills: 
Ice Skating Rinks:  SB250/HB182 (Overbey/Montgomery) gives immunity to skating rink operators from claims by ice-skaters who are injured.  The operator must maintain at least $1 million dollars in liability insurance and post guidelines and warnings.  This legislation provides an exception for gross negligence.
First Responders:  SB2480/HB2215 (Johnson/Casada) now Public ChapterPC844 Jaclyn’s law gives immunity to first responders who use force to enter a premises to render medical assistance after using reasonable efforts to summon the occupant.
Natural Gas Providers:  SB2705/HB2976 (Ketron/Matheny) now Public Chapter PC711 gives immunity to natural gas providers if the proximate cause of an injury or damage was caused by the actions of the consumer.
White Water Rafting Companies:  SB3179/HB3294 (Bell/Faison) now Public Chapter PC862 provides immunity to white water rafting companies for an injury or death resulting from the inherent risks of whitewater rafting.   The company must post warning signs and include the warning and limitations of liability in the service contract.  This legislation provides an exception for gross negligence.
Car Dealerships:  SB2950/3274 (Kelsey/Elam) provides that any automobile dealer who provides a loaner vehicle to a customer without charge shall not be vicariously liable to any person injured as the result of an accident caused by a customer driving a loaner vehicle when the dealer was provided with proof of insurance by the customer prior to the customer being provided with the loaner vehicle.
Statutory Private Right of Action:  SB2140/HB2809 (Kelsey/Dennis) now Public Chapter PC759 provides that no statutory private right of action or affirmative duty of care is created unless a statute contains express language creating the right or duty.
Civil Justice Act revisions:  Several changes were made to last year’s Civil Justice Act.  SB2120/HB2161 (Barnes/Dennis) adds that the caps on noneconomic and punitive damages will not apply if the defendant is convicted of a felony.  SB3101/HB3294 (Norris/McCormick) now Public Chapter PC798 is a cleanup bill that deletes all outdated references to “medical malpractice” and changes them to “health care liability.”
Tennessee Consumer Protection Act:  SB3301/HB3659 (Barnes/Stewart) adds language providing that engaging in Ponzi schemes or securities fraud are now considered unfair or deceptive acts or practices under the TCPA.
Post Judgment Interest:  SB2705/HB2982 (Kelsey/Dennis) changes the current 10% post judgment interest rate to 2% less than the formula rate per annum published by the commissioner of financial institutions, which is essentially the federal prime loan rate + 2%.  The rate will be posted on the Administrative Office of the Courts website ( and will be calculated in six month increments from January 1 to June 30 and July 1 to December 31.
Trespassers:  SB2719/HB2983 (Kelsey/Dennis) codifies the liability of a landowner to a trespasser.  The bill provides a land owner owes no duty of care to a trespasser except for attractive nuisances for children and for willful behavior that causes injury to the trespasser unless they are trying to stop a criminal offense.

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