Dan Berexa's Tennessee Law Blog

Contractors have a non-delegable duty to ensure work of subcontractors is performed in a careful, skillful, diligent and workmanlike manner

The liability of a general contractor for the work of its subcontractors is addressed in J. Scott Griswold's recent article in the Tennessee Bar Journal Who's to Blame. The article discusses the Tennessee Supreme Court's opinion in Federal Insurance Co. v. Winters Roofing in which the court held that a contractor has a non-delegable contractual duty to ensure work is performed in a careful, skillful, and workmanlike manner and that the general subcontractor is liable for its subcontractor's substandard work.

Dan Berexa
Nashville, Tennessee

Tennessee Local Counsel and Practicing Pro Hac Vice in Tennessee

In Tennessee, out of state lawyers who do not have a Tennessee law license are required to associate local counsel in order to qualify for admission Pro Hac Vice in our state courts. The terms and conditions for Pro Hac Vice attorneys are defined in Rule 19 of the Rules of the Supreme Court of Tennessee. Lawyers seeking admission must make filings with the Board of Professional Responsibility (BPR) in addition to seeking formal admission, on a case by case basis, from the court in which they wish to practice. Currently the BPR also requires a registration fee of $170 per calendar year.

The lawyers in my firm are often called upon to serve as local counsel. We are retained by national and regional counsel to assist in Tennessee litigation. Frequently we are associated in personal injury, product liability, health care, commercial matters and employment cases. I am often asked to assist in plaintiff's personal injury cases. The role of local counsel can be as expansive as handling alll the day to day aspects of the case or limited to offering assistance to insure compliance with local rules and practices.

Effective use of local counsel can enhance the quality of the representation, make lead counsel's job easier and acheive cost savings for the client. Some of the benefits of good local counsel are:

-Efficient handling of Pro Hac Vice admission process
-Ready knowledge of Tennessee law, procedure and local rules/practices
-Prior experience with and insight regarding judges
-Access to local experts
-Ability to conduct local investigations and call upon local resources
-Cost effective handling of motion practice, depositions and document production
-Awareness of local perceptions of parties and issues
-Knowledge of jury verdict data
-Assistance with jury panel research and jury selection
-Knowledge of local vendors (good court reporters, videographers, restaurants and lodging)

When you have the occasion to use local counsel take full advantage of all they can do for you and your client.

Dan Berexa
Nashville, Tennessee

Tennessee Supreme Court Liberalizes Application of Family Purpose Doctrine in Motor Vehicle Cases

The Family Purpose Doctrine imposes liability on the head of a household for the negligent operation of a motor vehicle by another family member. The doctrine is often used to hold a parent liable for an accident caused by a driving age child. However, it can be applied to other family relationships such as grandparent-grandchild, aunt-nephew etc. The doctrine imposes liability provided: 1) the head of the household owns and maintains the vehicle “for the purpose of providing pleasure or comfort for his or her family;” and, 2) if the vehicle was being used in the furtherance of a family purpose with either the express or implied permission of the head of the household at the time of the incident.

In the recent opinion in Starr v. Hill, the Tennessee Supreme Court liberalized the application of the Family Purpose Doctrine to meet the realities of modern domestic life, and more specifically the high divorce rate. The court held that the application of the doctrine is no longer dependent on the at-fault driver and the head of the household sharing the same residence. The court also held that there can be more than one “head of the household” for the purpose of application of the doctrine. Although not expressly stating it, the Starr opinion overrules a number of prior decisions from the Tennessee Court of Appeals, which narrowly limited the application of the doctrine.

Dan Berexa
Nashville, Tennessee

Tennessee Supreme Court Cites Study Showing that 21% of Tennessee Drivers are Uninsured

A study cited in the recent Tennessee Supreme Court decision in Starr v. Hill underscores the importance of obtaining uninsured motorist coverage. The court noted that "many drivers in our state simply disregard the requirements of the Financial Responsibility Law and fail to obtain car liability insurance."  The court noted that one study showed that 21.2 percent of drivers in Tennessee are uninsured, compared to the national average of 14.6 percent. Uninsured motorist coverage can provide a means of recovery if the at-fault driver is uninsured or does not have adequate insurance coverage.  For more information on uninsured and underinsured motorist coverage see the article Uninsured Motorist Coverage - Basics

Dan Berexa
Nashville, Tennessee  

Tennessee Supreme Court Clarifies Liability of Contractors for Work of Subcontractors

The Tennessee Supreme Court's opinion in Federal Insurance Co. v. Winters Roofing addressed the liablity of contractors for the work of their subcontractors. The court held that a contractor has a non-delegable contractual duty to perform work in a careful, skillful, and workmanlike manner. In Federal Insurance, a contractor hired to repair a roof attempted to disclaim liability for the actions of a subcontractor, which caused a fire damaging a home. The court cited Bowling v. Jones, 300 S.W.3d 288, 291 (Tenn. Ct. App. 2008), in which the Tennessee Court of Appeals made the following observation regarding the implied duties encompassed in construction contracts:

Once a builder undertakes a construction contract, the common law imposes upon him or her a duty to perform the work in a workmanlike manner, and there is an implied agreement that the building or work performed will be sufficient for the particular purpose desired or to accomplish a certain result. Thus, failure to perform a building contract in a workmanlike manner constitutes a breach of the contract.

The bottom line is the general contractor is responsible to it's customer if the contractor or the subcontractor botches the job.

Dan Berexa
Nashville, Tennessee

Tennessee Supreme Court Rejects the Twombly/Iqbal Analysis in Motions to Dismiss for Failure to State a Claim

The Tennessee Supreme Court rejected the Twombly/Iqbal analysis applied in federal court to relate motions to dismiss for failure to state a claim. The Tennessee Supreme Court continues to apply the standard articulated in Conley v. Gibson, 355　U.S. 41 (1957) that the court should grant a motion to dismiss only when it appears that the plaintiff can prove "no set of facts" that would entitle the plaintiff to relief. Click here for an excellent article authored by my law partner, J.K. Simms, regarding the Tennessee Supreme Court’s recent ruling in Webb v. National Area Habitat for Humanity, Inc., rejecting the Twombly/Iqbal "plausibility" standard.

George Wythe: Murder of a Founding Father

Dan Berexa's article, The Murder of Founding Father George Wythe, was published in the Tennessee Bar Journal. The article explores the life of Thomas Jefferson's mentor, George Wythe, and the trial of Wythe's grandnephew, who was accused of poisoning Wythe and two members of his household. Wythe was a distinguished jurist, statesman, and signer of the Declaration of Independence.

On June 5, 1806, 80-year-old Chancellor George Wythe cried in agony, “I am murdered!” Days later the distinguished jurist, statesman and signer of the Declaration of Independence died following a horrific two-week illness. The apparent poisoning at Wythe’s home also caused the illness of Wythe’s former slave, Lydia Broadnax, and killed Michael Brown, a young freed slave who worked and lived in the house. Our fledgling American nation was shocked to learn that Wythe’s death allegedly came at the hands of his namesake, and reprobate grandnephew, George Wythe Sweeney.[1] Wythe had taken Sweeney into his Richmond home with the hope of molding and educating the teenager, as he had done with so many young men over the years. Many of Wythe’s former pupils were the nation’s most prominent leaders, his most notable protégé and closest friend being none other than President Thomas Jefferson. The president and the young nation would follow the case closely with the expectation that the prosecution would prevail under a Virginia system of justice, which developed in large part because of the efforts and influence of Wythe and Jefferson.

Read more

Tennessee Tort Reform Signed into Law by Governor Haslam

Today Governor Bill Haslam signed the "Tennessee Civil Justice Act of 2011" into law. The controversial tort reform package was one of the new governor’s legislative priorities and was touted as a means to create a more attractive business climate by bringing predictability and certainty with respect to litigation risks and costs. Two key provisions of the far reaching act are the caps on non-economic damages and punitive damages. Non-economic damages are broadly defined as damages for "physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; non-economic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life, and loss of mental or physical health, well-being or bodily functions; and any other non-pecuniary loss of any kind or nature."

The bill caps all non-economic damages in most civil actions at $750,000 per injured plaintiff. There are exceptions, increasing the cap to $1,000,000, in cases where the injured party sustained a catastrophic loss or injury such as paraplegia or quadriplegia due to a spinal cord injury, extensive third-degree burns, multiple amputations or a wrongful death claim where the decedent is survived by one or more minor children. Also exempt from the cap are claims for intentional injuries; cases where the defendant intentionally conceals or destroys evidence to evade liability; or injuries resulting from the defendant’s intoxication. The cap does not apply to economic damages such as medical expenses, lost earnings or earning capacity, property damage, loss of business or employment opportunities or other objectively verifiable monetary losses.　

Attack on Hannan - Two New Bills Conform Tennessee Summary Judgment Standard to Federal Standard

Two new bills address Tennessee’s standard for granting motions for summary judgment.  One of the acts, which will be codified as Tenn. Code Ann.§ 20-16-101, is intended to bring Tennessee law in line with the federal standard applicable to motions for summary judgment.  This statute act is a direct response to the Tennessee Supreme Court’s 2008 decision in Hannan v. Alltel Publishing Company, which greatly restricted the availability of summary judgment, a procedure by which the court can determine the legal merits of a case prior to trial.  Prior to Hannan, summary judgment was available to dismiss a case, in full, or in part, if a party was unable to offer evidence, prior to trial, to establish the essential elements of its claims.  The act returns Tennessee law to a standard which is consistent with the federal standard and should lead to an increase in the number of cases that are dismissed, in whole or in part, on summary judgment.  The Hannan decision caused a dramatic decrease in the number of summary judgment motions that were being filed and granted.  Tenn. Code Ann. § 20-16-101 will apply to actions filed on or after July 1, 2011. 

On a related topic, Senate Bill No. 940/House Bill No. 1641 clarifies the law as it relates to summary judgment in the context of employment claims for discrimination, retaliatory discharge and wrongful discharge.  This act incorporates the federal burden-shifting standard that was also rejected by the Tennessee Supreme Court.  The new law will apply to claims accruing on or after the effective date of the act.

Dan Berexa
Nashville, Tennessee

Considering Investing in a Franchise?

In today's edition of The Tennessean (February 27, 2011) there is an article Be Your Own Boss which has some good information for those considering investing in a franchise. Every day future entrepreneurs dream of starting their own businesses. Their motivations may include a desire to be one’s own boss, the pride of creating a new venture, the wish to make a career change or the desire to earn more. Rather than starting business concepts from scratch, many new entrepreneurs choose franchising because it can offer features such as name and product recognition, national or regional advertising, purchasing power, established operating procedures, training and assistance with startup. Here is an article I wrote on the same topic A Primer for Those Interested in Purchasing a Franchise which has additional information that will be helpful to anyone considering purchasing a franchise.

Dan Berexa
Nashville, Tennessee