Don Ferguson joined McLemore Law PLLC on September 5, 2017.  We are pleased to have him at the firm.  Also Emily Yoanidis joined us as our medical records paralegal. 

Recent Legal Developments


Allstate Insurance Company v. Kaigler & Associates, Inc.; In the Tennessee Court of Appeals; Appeal No. M2016-01003-COA-R3-CV appealed from the Chancery Court of Williamson County; Case No. 43913.

McLemore Law PLLC served as local counsel for Allstate in a large declaratory judgment action to determine coverage obligations arising out of a business insurance policy relative to a class action suit brought in Illinois against Kaigler and Associates, Inc. for sending thousands of unsolicited faxes in violation of the Telephone Consumer Protection Act ("TCPA").  On August 31, 2017, the Court of Appeals affirmed the underlying decision granting judgment as a matter of law in favor of Allstate.  Summary judgment was granted by Chancellor Jim Martin in the Chancery Court for Williamson County, Tennessee. Kaigler and Associates, Inc. ("Kaigler") appealed.  The appeal arose after the trial court granted Allstate's motion for summary judgment holding that the insurance company had no duty to indemnify under the "accidental event" coverage or the "personal injury" coverage and that the company had a duty to defend under the "advertising injury" coverage. The "advertising injury" coverage was not in dispute. Kaigler, however, sought coverage under the "accidental event" and "personal injury"coverage provisions of the commercial policy.  On appeal, Kaigler contended that Williamson County Chancery Court issued an improper advisory opinion and erred in its holding that Allstate had no duty to indemnify under the "accidental event" coverage, and abused its discretion by failing to consider new evidence proffered in Kaigler's motion to alter or amend the judgment. The Court of Appeals affirmed the trial court's ruling in all respects.



Candes Prewitt v. Kamal Brown; In the Tennessee Court of Appeals; Appeal No. M2017-01420-COA-R3-CV appealed from the Circuit Court of Davidson County, Eighth Circuit; Case No. 13-C-2894;

The remaining personal injury claim of Candes Prewitt was tried in Davidson County Eighth Circuit Court before the Honorable Kelvin Jones on February 28, 2017 and March 1, 2017.  Ms. Prewitt presented her case before the jury on February 28, 2017, and hired attorney Chris Crase to represent her at trial. Interestingly, Ms. Prewitt did not call any other witnesses but herself.  Several efforts were made to introduce medical bills and records of her treating providers, but each was denied by the Court.  A directed verdict motion excluding all medical bills of Ms. Prewitt was granted at the close of her case.  On March 1, 2017, Mr. Brown began his case, calling two witnesses to testify on his behalf.  Following that testimony, the jury was presented with closing arguments and the Court's jury instructions.  Ms. Prewitt requested that the jury compensate her in an amount that fairly represented her extreme pain, suffering and mental distress from the June 1, 2013 automobile accident.  Mr. Brown's closing argument emphasized inconsistencies in Ms. Prewitt's testimony and testimony that he considered to be self-serving and hyperbolic in nature.  The jury returned a verdict for $500.00. Candes Prewitt filed Motion for New Trial, citing nine grounds in an effort to overturn the jury's verdict. This motion was heard on June 2, 2017.  The trial court denied Ms. Prewitt's motion and she has appealed this decision to the Court of Appeals asserting nine grounds of error.  The case is currently being briefed.  



Sandra Prewitt and Candes Prewitt v. Kamal Brown et al.; In the Supreme Court of Tennessee at Nashville; No. M2016-00874-SC-R11-CV



On January 30, 2017, the Tennessee Court of Appeals affirmed the judgment of Judge Kelvin D. Jones in the Eighth Circuit Court of Davidson County, upholding the dismissal of a bad faith claim and property damage claims asserted by Sandra Prewitt against Kamal Brown. Following a June 1, 2013 accident with Mr. Brown, which totaled her vehicle, Ms. Prewitt sought to have her entire car loan paid by the defendant and also sought loss of use damages for over three years following the accident.  Mr. Brown's carrier paid the fair market value to Ms. Prewitt's lienholder, DriveTime.  In its ten-page opinion, the Court reasoned that Sandra Prewitt provided no evidence to support her claim that her lienholder was not paid the fair market value of the vehicle.  Citing her deposition testimony wherein Ms. Prewitt admitted she did not know the value of her vehicle, the Court found that she could not dispute that the value paid to DriveTime was not the fair market value.  Further, the Court held that Ms. Prewitt could not collect the deficiency owed by her to DriveTime on her car loan.  Additionally, the Court also held that Ms. Prewitt could not maintain a loss of use claim, and that even if she could, she must present actual evidence of damages.  At the trial court, arguments were made by Ms. Prewitt that she should be entitled to a given per day rate (in excess of $50.00) for a rental vehicle from the time of the accident (June 1, 2013) through the present. Lastly, the Court upheld the dismissal of Ms. Prewitt's attempted direct action and bad faith claim against Mr. Brown's insurance carrier, finding no basis in Tennessee law for her arguments.  After an unsuccessful Petition for Rehearing, Ms. Prewitt sought permission to appeal to the Tennessee Supreme Court.  McLemore Law filed an answer and response against the Application for Permission.  The Tennessee Supreme Court denied Ms. Prewitt's Application on May  18, 2017. 



James Goss v. Susan Green et al.; In the United States Court of Appeals for the Sixth Circuit; Case No. 16-5265



On December 2, 2016, McLemore Law prevailed on an appeal to the Sixth Circuit Court of Appeals.  The case concerned a Mississippi uninsured motorist auto policy exclusion for the use of a non-owned vehicle which was furnished, available, or regularly used by the insured.   James Goss, the insured, was injured in an accident on I-40 while driving a commercial vehicle owned by Bigbee Transportation.  Mr. Goss sought to collect from his personal underinsured motorist carrier.  U.S. District Judge Samuel Mays granted summary judgement for the carrier, holding that a non-owned vehicle, regularly furnished to the insured, not listed on the policy, fell squarely within an exclusion contained within the policy.  Further, Judge Mays found that the exclusion was not ambiguous, and the the agent's alleged statements concerning coverage were inadmissable parol evidence.  In accordance with Mississippi caselaw, the policy would not provide under-insured motorist coverage benefits to Mr. Goss.  Mr. Goss then appealed the trial court's decision to the Sixth Circuit.  Following submission of the briefs, the Sixth Circuit upheld Judge Samuel Mays' order and confirmed that the exclusionary language concerning non-owned vehicles regularly used, available, or furnished to the insured was not ambiguous and that policy exlusion was valid under Mississippi law.  No Petition for Rehearing was filed by Mr. Goss and a Mandate has been issued. 



Sandra Prewitt and Candes Prewitt v. Kamal Brown;  In the Circuit Court of Davidson County, Eighth Circuit; Case No. 13-C-2894



McLemore Law, PLLC, won summary judgment in the Eighth Circuit Court of Davidson County, Tennessee at Nashville, styled Sandra Prewitt and Candes Prewitt v. Kamal Brown, Case No. 13-C-2894, and obtained dismissal of all claims of Plaintiff Sandra Prewitt.  The Plaintiff sued to recover the value of her 2008 Mitsubishi Galant, which was deemed a total loss, as a result of an automobile collision and loss of use.  Sandra Prewitt sought the loss of use of her vehicle at a daily rate in excess of $50.00 per day, for three years.  She also contended the amount for the replacement of her 2008 Mitsubishi Galant was the total value of the loan, rather than the fair market value of her vehicle.  Sandra Prewitt is represented by her daughter, Candes Prewitt. Sandra Prewitt has sought an appeal. 



Jerrold Lee Edwards v. Jeffrey W. McClendon; In the Circuit Court of Rutherford County, Case No. 62806 (Consolidated with Case No. 62807)



McLemore Law, PLLC obtained a defense verdict in a jury trial in the Circuit Court of Rutherford County, Tennessee at Murfreesboro. This was a case involving a two-car accident on February 2, 2011, wherein the Plaintiff asserted that the Defendant ran a red light as Plaintiff made his left turn from Sam Ridley onto Industrial Boulevard. Plaintiff asserts that he had the green left turn arrow before he began to make his left turn. Conversely, Defendant asserts that he waited for his light to turn green before proceeding straight through the intersection at Sam Ridley and Industrial, and the Plaintiff tried to beat the red light because he was running late for work. Plaintiff’s medical damages and lost wages were stipulated by the parties, and the sole issues for determination were the issue of fault, non-economic damages, and the valuation of Plaintiff’s vehicle. Both parties asserted that the other was negligent due to failure to observe the red light. Additionally, both parties asserted that even if he was the one to run the light, the other party was partially at fault for failure to ensure the intersection was clear. Counsel for the Plaintiff argued that the Defendant’s written statement, given immediately after the accident, stated that he “thought” that he had a green light and “took off” into the intersection. Plaintiff’s counsel further cross-examined the Defendant on his admissions that he made a “bad” statement and the admission that the Defendant attempted to change the statement later by consulting local law enforcement officers. 


Both Plaintiff and Defendant testified.  In addition, the Plaintiff’s former girlfriend, who was a passenger in the Plaintiff’s vehicle at the time of the accident, testified by deposition due to her absence at trial. According to her testimony, the Defendant bypassed stopped traffic at the light on Sam Ridley by swerving around them into the left turn lane (on the other side of the intersection) and proceeding into the intersection where the accident occurred. Jury deliberations lasted from the afternoon of February 24, 2016, through the afternoon of February 25, 2016.  After deliberation, the jury returned a verdict that the Defendant was not negligent.  Accordingly, the jury did not need to reach a decision on the issue of damages or comparative fault.  


Final Judgment was entered on behalf of the Defendant and no appeal was filed.


Allstate Insurance Company v. Brittany Nelson, et al.;

In the Circuit Court of Robertson County, Tennessee, Docket No. 74CCI-2014-CV-413



In August 2015, McLemore Law, representing an insurance carrier, successfully prevailed in a declaratory judgment action for coverage issues arising out of a fatal accident involving allegations of road rage.  The issues in this case concerned a policy exclusion of coverage for acts committed by an insured which are either intentional or criminal.  Despite highly contested and complex factual issues in the underlying matter, McLemore Law was able to procure a stipulation of no coverage for the carrier.   By procuring this stipulation, extensive litigation and the associated expense was avoided.  The underlying action, a large tort case involving multiple parties, remains pending in another county and is currently on appeal to the Tennessee Supreme Court for issues related to the wrongful death statue of Tennessee.


OLDER NEWS

McGinnis et al. v. Cox et al.;
In the Circuit Court for Giles County, Tennessee; Docket No. CC-11441

McLemore Law successfully briefed and argued the relatively novel issue, under Tennessee law, of whether Rule 68 offers of judgment may be properly revoked within the ten-day period set forth in Tenn. R. Civ. P. 68.  In a case where Plaintiffs alleged severe injuries after an automobile accident, Plaintiffs served a proper Rule 68 offer of judgment on the defendants . Prior to the expiration of ten days, Plaintiffs purported to serve notice of revocation of that offer. The defendants accepted the offer within the ten-day period.

Upon a Motion to Enforce Plaintiffs’ Offer of Judgment the trial court held that, consistent with Fed. R. Civ. P. 68 and attendant case law, Rule 68 expressly allows an adverse party a ten-day period to decide whether to accept the offer – and that the offering party may not revoke an offer of judgment within that ten-day period. The trial court also held that the terms of the offer itself provided the same period of time for clients to respond. Plaintiffs filed a notice of appeal.


This was an issue of first impression in Tennessee.  McLemore Law orally argued the case before the Tennessee Court of Appeals on September 17, 2014.  On October 31, 2014, the Tennessee Court of Appeals sided with our clients and affirmed the Giles County Circuit Court holding that a Rule 68 offer of judgment is generally irrevocable.  On December 29, 2014, Mr. McGinnis, on behalf of the plaintiffs, requested permission from the Tennessee Supreme Court to appeal the Court of Appeals ruling.   On February 12, 2015, the Tennessee Supreme Court declined to hear any further appeal and the Opinion of the Court of Appeals is final.  Proceedings have now been remanded back to Giles County Circuit Court for closure and completion.



Amber L. Bilbrey et al. v. Melissa Lynn Parks et al.;
In the Circuit Court for Cumberland County, Tennessee; Docket No. CV-00-5252

On the evening of March 11, 2010, a serious car accident occurred when the vehicle driven by Melissa Parks struck the disabled vehicle of Amber Bilbrey.  Ms. Bilbrey ran out of gas and stopped her vehicle on the eastbound side of U.S. 70 in Cumberland County, Tennessee.  Both parties alleged substantial bodily injuries from the collision. The parties fervently disputed fault and the extent the Bilbrey vehicle sat in the eastbound traveled portion of U.S. 70.  Also in dispute was whether the flashers of Ms. Bilbrey’s vehicle were operating at the time of impact, the availability of alternative areas to pull off the road, and the distance which Ms. Parks should have ascertained the presence of Ms. Bilbrey’s disabled vehicle.  Ms. Bilbrey sought compensatory and punitive damages of $5,000,000.00. Ms. Parks sought $1,000,000.00 in compensatory damages.   

 

McLemore Law was one of two firms that defended Ms. Parks for the claims brought against her by Ms. Bilbrey. After a weeklong trial before the Honorable Amy T. Hollars, the jury found Ms. Bilbrey to be 50% at fault for her injuries, thereby barring her from any recovery against Ms. Parks.  All motions for a new trial were denied and Ms. Bilbrey filed an appeal of the verdict.  Ms. Bilbrey sought to overturn the admission of testimony by a state trooper who overheard a damaging admission contained in a voice recording of the plaintiff, Amber Bilbrey.  Ms. Bilbrey also sought to exclude the deposition testimony read to the jury of her boyfriend, Kyle Culver. 


After extensive briefing, McLemore Law participated in oral argument before the Tennessee Court of Appeals on June 18, 2014.  On September 29, 2014, the Tennessee Court of Appeals affirmed the trial court rulings as to the state trooper and the admission of the deposition of Kyle Culver.  Ms. Bilbrey did not seek permission to appeal to the Tennessee Supreme Court and the case is now final. 


Mark Siedlecki et al. v. Shane Madden et al.;
In the Circuit Court for Cumberland County, Tennessee; Docket No. 2CC1-2013-CV-5760

On September 2, 2013, an accident occurred between the plaintiffs and the defendants at the Genesis Road exit on I-40 East in Crossville, Tennessee.  Following the accident, one of the defendants, the actual passenger, informed the officers that he was driving the vehicle to protect the driver, a friend, who did not have insurance, or a license at the time.  Shortly thereafter, Plaintiffs filed suit for their alleged injuries contending that the defendants ran the red light at the intersection of the exit ramp and Genesis Road/State Highway 298.  McLemore Law defended the passenger.  The actual defendant driver disappeared and could not be located for many months, leaving the passenger to bear the brunt of the litigation.   After numerous efforts were made to locate the actual driver in the accident, including the involvement of private investigators, McLemore Law finally located him living in a maintenance facility behind a local Crossville, Tennessee truck rental agency.  His deposition was obtained and the actual events of that day emerged, resulting in a motion for summary judgment and ultimately a dismissal of McLemore Law's client.  The case then resolved thereafter.



Haroon, et al. v. Tidwell, et al;

In the Circuit Court for Davidson County, Tennessee; Docket No. 11C2596

McLemore Law obtained summary judgment for a local medical professional. Client was out-of-state during the events alleged in the complaint and faced allegations of negligent entrustment and vicarious liability with respect to the use of her home and car. In client’s absence, Plaintiff and several others attended a party at client’s house where alcohol was present. At some point during the evening, one of the partygoers took client’s car from her driveway and later crashed it, causing injury to Plaintiff and others.
 

The court found that neither the party nor the use of her car were within the scope of permission given by client prior to her departure. Accordingly, the trial court held that client could not be held liable for Plaintiff’s injuries as a matter of law. The court ruled that the summary judgment award in favor of client was a final judgment. Plaintiffs did not appeal.


Brenda G. Emery v. Jack Wood d/b/a Southern Restaurant and Midwest Insurance Company;

In the Chancery Court for Hamilton County, Tennessee; Docket No. 12-0560


Following trial on the merits, McLemore Law obtained a favorable judgment in this worker’s compensation matter. The Honorable Chancellor Frank W. Brown presided. This action arose from an admitted work-related injury on the premises of the employer. The claimant never returned to work. The claimant contended that she was permanently and totally disabled based on her own limitations and upon records from her primary care physician. After the testimony of various witnesses, expert witnesses and the admission of respective medical records, wage records, and other relevant exhibits, Chancellor Brown issued a ruling which held the workers compensation claimant was entitled to only three times her impairment rating. Prior to trial, an Offer of Judgment had been rejected by the claimant for 4.9 times the impairment rating. No appeal was filed.