Recent Legal Developments

This case relates to a November 30, 2021 motor vehicle accident in Wilson County, Tennessee. The trial occurred on May 11, 2023. Brittany Butler filed suit seeking personal injury damages and property damages allegedly sustained during this accident. Ms. Butler alleged Gwendolyn Turner negligently entered her lane of travel and side-swiped her vehicle resulting in injuries and property damage. Ms. Turner denied liability, and asserted that Ms. Butler was the one who failed to pay attention and struck Ms. Turner’s vehicle. After Plaintiff/Brittany Butler’s testimony and the testimony of Ms. Turner, Plaintiff rested. Prior to McLemore Law PLLC calling their witnesses, McLemore Law PLLC moved for directed verdict arguing that regardless of negligence, Plaintiff failed to submit evidence of her claimed damages and as a result, Gwendolyn Turner was entitled to judgement as a matter of law. The Court agreed and granted McLemore Law PLLC’s motion for directed verdict and entered a judgment in favor of the defendant, Gwendolyn Turner.

Tennessee Farmers Mutual Insurance Company a/s/o Allison Hood v. Floyde Batson & Allstate Property and Casualty Insurance Company a/s/o Floyde Batson v. Allison Hood; In the General Sessions Court for Montgomery County, Tennessee at Clarksville; Case Nos. GS-22-CV-4685 & GS-22-CV-8070.

This case involves a motor vehicle accident that occurred on December 18, 2021. The trial occurred on May 10, 2023. Floyde Batson and Allstate denied liability. Tennessee Farmers Mutual Insurance Company (“TFMIC”) filed suit against Ms. Batson for property damage subrogation alleging Ms. Batson negligently proceeded through an intersection and struck the vehicle operated by Allison Hood. Allstate counter-sued for property damage subrogation. Floyde Batson was traveling down 9th Street in Clarksville, Tennessee. 9th street intersects College Street. At this intersection, there are 4 traffic lanes of College Street and this intersection has a traffic signal. As Ms. Batson proceeded into the intersection, her light was yellow.  She had safely crossed all 4 lanes of traffic – when she was contacted in the rear passenger side by a Jeep operated by Allison Hood. The front right (passenger side) of the Jeep struck the back passenger wheel of Ms. Batson’s Nissan Versa. The impact spun Ms. Batson’s Versa and sent it into several large rocks. 

During the trial of this matter, McLemore Law PLLC argued a yellow light does not require a stop if the front wheels of the vehicle cross the stop bar during the that phase, and after the testimony of four individuals (including the investigating police officer) there was no evidence Ms. Batson ran a red light.  A driver is allowed to proceed through an intersection when the traffic light is yellow.  In contrast, McLemore Law PLLC also presented evidence to the Court that, simply because the oppsing traffic signal is green, does not mean you have a right to proceed into an intersection without insuring the roadway is clear. Drivers must pay attention to their surroundings and drivers must make sure the roadway is clear before proceeding forward. The Court agreed that Ms. Hood failed to abide by those two rules of the road and issued a defense verdict in the TFMIC matter, while awarding Allstate’s property damage subrogation in the countersuit.

Christopher McCoy v. Katelyn Conway and Courtland Douglas; In the Tennessee Court of Appeals; Appeal No. M2021-00921-COA-R3-CV appealed from the Circuit Court of Wilson County, Tennessee at Lebanon; Case No. 2020-CV-40

On August 5, 2022, McLemore Law PLLC procured a significant victory in the Tennessee Court of Appeals by establishing that the uninsured motorist carrier is entitled to offset medical payments coverage. This case was transferred to McLemore Law PLLC following trial and a post-trial motion to compel payment.

Allstate, acting as Mr. McCoy’s uninsured motorist carrier, then paid Mr. McCoy $45,000.00, representing the uninsured motorist policy limits of $50,000.00 less the prior $5,000.00 payment. Mr. McCoy then sought to compel the uninsured motorist carrier to pay the additional $5,000.00 owed under the uninsured motorist policy. The trial court agreed with Mr. McCoy and ordered the uninsured motorist carrier to pay Mr. McCoy an additional $5,000.00, resulting in total payments by Allstate to Mr. McCoy of $55,000.00. Allstate appealed and the Court of Appeals of Tennessee at Nashville reversed the decision of the trial court holding that Tennessee law permits an insurer to offset its payment of uninsured motorist coverage by the amounts that the insured receives from other legally responsible parties.

Amy Fritz v. Lawrence Ras and Susan Troutwine aka Susan Ras; In the Circuit Court for Maury County, Tennessee at Columbia; Case No. 17071

This case involves a motor vehicle accident that occurred on August 10, 2020. Amy Fritz alleged claims of negligence and negligence per se. McLemore Law PLLC procured a dismissal with prejudice of Plaintiff’s case. On September 16, 2022, the Court found that Plaintiff failed to adhere to the Court’s June 30, 2022 Order on Defendants’ Motion to Dismiss for Failure to Prosecute that ordered Plaintiff to provide defense counsel full and complete responses to Defendants’ Interrogatories and Requests for Production within 45 days of the June 21, 2022 hearing on Defendants’ Motion to Dismiss for Failure to Prosecute. Tennessee Rule of Civil Procedure 37.02 provides that “if… a party… fails to obey an order to provide or permit discovery, including an order made under Rule 37.01 … the court in which the action is pending may [make an] order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”  Tenn. R. Civ. P. 37.02. The Court found that Plaintiff failed to comply with the Court’s June 30, 2022 Order regarding discovery and as a result, dismissal with prejudice, pursuant to Tennessee Rule of Civil Procedure 37.02, was proper.

Allstate Vehicle and Property Insurance Company, and Allstate Indemnity Company v. David and Leann Morse; In the U.S. District Court for the Eastern District of Tennessee, Knoxville Division, Civil Action No. 3:21-cv-00284

On February 18, 2022, the U.S. District Court for the Eastern District of Tennessee, Knoxville Division, granted a Motion for Judgment on the Pleadings regarding a declaratory judgment action filed by McLemore Law on behalf of Allstate.  This action sought to determine coverage obligations concerning certain claims filed against David and Leann Morse arising out of the sale of their previous home back in 2020.  The purchaser filed suit against the Morses claiming certain easement and drainage issues were not disclosed during sale and sought compensation.  The Morses sought coverage under their respective policies.  Unfortuately, the damages alleged by the purchasers fall outside of the coverage provided under personal liability policies insuring the Morses for protection against bodily injury or property damage.  Following the motion and memorandum brief filed by McLemore Law, the Court found the damages alleged were not covered under the homeowners and personal policies of the Morses and granted judgment on the pleadings.    

Owners Insurance Company & Lyons Chevrolet Buick GMC, Inc. v. Allstate Property & Casualty Insurance Company, Allstate Indemnity Company, Joseph Gordon Jr., Pedro Cid Santos & Cecilia Aviles, Velazquez Mendez, Individually & as next friend of Juan Aviles & Alexia Aviles, Minors. In the Circuit Court of Maury County, Tennessee at Columbia; Case No. 15910

On March 11, 2021, McLemore Law obtained judgment as a matter of law for their clients, Allstate Property & Casualty Insurance Company and Allstate Indemnity Company. This cause came before the Circuit Court for Maury County, Tennessee, on October 30, 2020, following Allstate Indemnity Company’s and Allstate Property and Casualty Insurance Company’s Motion for Summary Judgment as Defendants/Counter and Cross-Plaintiffs and Owners Insurance Company’s Motion for Summary Judgment as Plaintiffs/Counter-Defendants.  This is a declaratory judgment action over whether Lyon’s Chevrolet Buick GMC Inc.’s garage policy is primary or secondary, as per TENN. CODE ANN. §56-7-1101(b), behind the personal automobile policy of Ty Gordon.

The complaints filed in the underlying lawsuits allege that on December 8, 2015, Joseph “Ty” Gordon, Jr. was operating a 2016 GMC owned by Lyons Chevrolet in furtherance of the business of Lyons Chevrolet. At the same time, an accident occurred resulting in alleged personal injuries to Pedro Cid Santos and Cecilia Aviles Velazquez Mendez, Individually and as Next Friend of Juan Aviles and Alexia Aviles. The plaintiffs’ underlying complaints were filed on December 8, 2016, and seek personal injury damages as a result of Ty Gordon’s operation of the 2016 GMC owned by Lyons Chevrolet. The underlying complaints allege respondeat superior asserting that Mr. Gordon, at the time of the subject accident, was operating a vehicle owned by Lyons Chevrolet while acting within the course and scope of his agency and in furtherance of the business of Lyons Chevrolet.

The issue, as stated by the Court, was whether the damages caused by Mr. Gordon on the day of the accident were “bodily injury or property damage arising out of auto business operations such as repairing, servicing, testing, washing, parking, storing or selling of autos? The Court determined that the Allstate policy was not ambiguous and that the “concurrent cause doctrine” did not apply. The Court found that there was only one cause, the negligence of Ty Gordon, and that the undisputed material facts illustrate that the use of the vehicle arose out of auto business operations. The Court opined that the undisputed material facts demonstrate that Mr. Gordon, on December 8, 2015, was driving a vehicle owned by Lyons so as to allow for the pick-up and repair of a vehicle. The Court further found that this program of Lyons was initiated by Lyons to assist in the selling of automobiles. Multiple cases were cited by McLemore Law in their briefs and oral argument. The Court focused on the cases of Pollard v. Safeco Insurance Co., 376 S.W.2d 730 (Tenn. Ct. App. 1963) and Aetna Casualty & Surety Company v. Martinez, 225 Tenn. 687, 475 S.W.2d 663 (Tenn. 1972) cited by McLemore Law. The Court found that these cases were substantially similar to the case at bar and as a result, the Allstate policy exclusion applied and Mr. Gordon was not afforded coverage under the Allstate personal liability policy.

Allstate’s Motion for Summary Judgment was granted and Owners’ Motion for Summary Judgment was denied. Allstate’s Motion for Summary Judgment regarding the personal umbrella policy was also granted.

Tennessee Farmers Mutual Insurance Company a/s/o Jenny Smith v. Danielle Sapore & Allstate Property and Casualty Insurance Company a/s/o Danielle Sapore v. Jenny Smith; In the General Sessions Court for Davidson County, Tennessee at Nashville; Case Nos. 20GC10247 & 20GC15620.

This case involves a motor vehicle accident that occurred on February 27, 2020, on Interstate 40 heading into Nashville, Tennessee. The trial occurred on May 13, 2021. Tennessee Farmers Mutual Insurance Company (“TFMIC”) filed suit against Danielle Sapore for property damage subrogation alleging Ms. Sapore negligently rear-ended the vehicle operated by Jenny Smith. Danielle Sapore denied fault, and asserted that Jenny Smith negligently maneuvered her vehicle in front of Ms. Sapore and suddenly braked during Ms. Smith’s attempted lane change. Allstate counter-sued for property damage subrogation. This accident occurred at mile marker 214 before the exit 213 split where vehicles can go left for 440 West and 24 East; or go right for 24 West and 40 West toward Nashville. Traffic was heavy and bumper to bumper, as it usually is during the week at 8 a.m. on Interstate 40. McLemore Law PLLC presented evidence that Ms. Smith moved her vehicle right and changed lanes in front of Danielle Sapore. The back right of Ms. Smith’s vehicle contacted the front left of Ms. Sapore’s vehicle. After the evidence, the Court agreed with McLemore Law PLLC that Danielle Sapore possessed the right of way and that Jenny Smith failed to safely change lanes and suddenly stopped in front of Ms. Sapore during her attempted lane change. The Court issued a defense verdict in the TFMIC matter, while awarding Allstate’s property damage subrogation in the countersuit.

Mersudina Beciragic vs. Wesley N. Kewley; In the Eighth Circuit Court for Davidson County, Tennessee at Nashville; Case No. 18C2971.

This case arises out of a motor vehicle accident that occurred on or about May 26, 2017, at approximately 1:00 p.m. in Nashville in Davidson County, Tennessee. Plaintiff demanded $275,000.00 and asserted to Mr. Kewley caused the accident that resulted in the premature birth of her child, emotional distress, physical pain and suffering, loss of enjoyment of life and lost wages. Given the serious allegations of pregnancy related claims and an alleged premature birth, extensive medical record analysis and discovery was engaged in by McLemore Law. McLemore Law deposed Ms. Beciragic on January 30, 2020. During her deposition, McLemore Law confronted Ms. Beciragic with her medical records and the issues revolving around her pregnancy related claims. Following her deposition, Ms. Beciragic removed her claims relating to the birth of her child and emotional stress; thereby reducing her claim to several thousand in medical expenses relating to soft-tissue allegations. McLemore Law was able to resolve the claim for a significantly reduced value and procured a dismissal of Mr. Kewley on March 10, 2021.

Amir Shamoun v. Ronnie Buggs; In the Circuit Court for Davidson County, Tennessee at Nashville; Case No. 17-C-783.

This case arises out of an April 4, 2016, rear end motor vehicle accident in Davidson County, Tennessee. Mr. Shamoun demanded $750,000.00 for bodily injury, medical expenses, pain and suffering, diminution of his ability to enjoy life and permanent disability against both Mr. Buggs and his employer, Fashion Hardware Group, Inc. He claimed that this accident caused a cervical disc herniation that resulted in a fusion surgery and approximately $85,000.00 in medical expenses. After this file was transferred to McLemore Law for defensive handling on September 12, 2018, McLemore Law determined that service against Fashion Hardware Group, Inc. had never occurred and successfully removed that defendant from the case.  Leaving Mr. Buggs to defend, McLemore Law engaged in party depositions, document production and analysis, and medical proof. McLemore Law discovered that Mr. Shamoun’s disc herniation existed before the accident and was included in pre-accident workers’ compensation claims. Plaintiff’s counsel withdrew from representation and Mr. Shamoun proceeded pro se. McLemore Law filed a Motion to Dismiss on May 26, 2020. After several hearings and procedural developments, McLemore Law procured a dismissal of Mr. Shamoun’s claims against Ronnie Buggs. The Court entered its order on January 19, 2021.

OLDER NEWS

Mdalalh H. Abuhabda v. Steven W. Whaley; In the Circuit Court of Williamson County, Tennessee at Franklin; Case No. 2017-73

This case relates to a February 16, 2016, motor vehicle accident in Williamson County, Tennessee. Ms. Abuhabda alleged claims of negligence and negligence per se.  The ad damnum demanded judgment of $300,000.00.  She alleged continuous pain and injury from the date of the accident to present. This file was transferred to McLemore Law for defensive handling on January 30, 2020. McLemore Law engaged in document production, medical record procurement and party depositions. During depositions, McLemore Law confronted Ms. Abuhabda with medical records and revealed a two-year treatment gap. This created a cut-off date for Ms. Abuhabda’s claims of continued treatment and accident-related expenses, thereby significantly reducing her medical expenses. As a result, McLemore Law was able to procure a settlement of claims and protect Mr. Whaley from excess exposure.

Aaron Hascher v. Kevin Cagle; In the Circuit Court for Williamson County, Tennessee at Franklin; Case No. 2018-324.

This case arises out of a motorcycle accident that occurred on July 10, 2017, in Williamson County, Tennessee. Aaron Hascher was riding behind Kevin Cagle in the same lane traveling eastbound on Interstate 840. Kevin Cagle changed lanes to exit Interstate 840 onto Interstate 65. The right rear of Mr. Cagle’s motorcycle contacted the front left of Mr. Hascher’s motorcycle, causing the bike to fall onto its side. Fault was denied and heavily contested. McLemore Law engaged in written discovery, party depositions, fact witness depositions, medical proof and utilized an expert in Motorcycle Safety in its defense of Mr. Cagle. McLemore Law revealed that Aaron Hascher illustrated a tendency to come up “dangerously close to the rear of Mr. Cagle’s motorcycle.” McLemore Law’s expert in motorcycle safety opined that (1) there should always be a one second gap between rider one and rider two; (2) motorcycles must never operate directly alongside each other; and (3) when passing, motorcycles must pass one at a time, and the number two rider and so on should not start the passing maneuver until the rider in front has completed the pass safely. Based on the foregoing, McLemore Law argued that if Aaron Hascher maintained his space and timing then this accident would never have occurred. Mediation occurred on June 26, 2020. Based on the case development, McLemore Law was able to resolve this matter at mediation for less than the claimed medical expenses. All claims against Mr. Cagle were dismissed on July 21, 2020.

Gregory Suggs v. Jesus Robinzon, James Todd, Timothy Givens, James E. Taylor, and John Doe, an unknown driver, In the Eighth Circuit Court of Davidson County, Tennessee at Nashville; Case No. 18C1524.

On November 22, 2019, McLemore Law PLLC obtained judgment as a matter of law for their client, James Taylor. This case arose from a motor vehicle accident that occurred on February 24, 2017. Plaintiff filed suit alleging negligence on the part of James Taylor. James Taylor was traveling west on Interstate 24. Plaintiff, Gregory Suggs, was a passenger of Mr. Taylor at all relevant times. An accident involving multiple vehicles occurred. Mr. Suggs filed a workers’ compensation claim with Traveler’s Insurance relating to the subject accident. Plaintiff, Gregory Suggs, and Defendant, James Taylor, were co-workers at the time of the accident.

Mr. Taylor’s motion for summary judgment argued that the workers’ compensation exclusivity provision, pursuant to the provisions of TENN. CODE ANN. §50-6-108, prevented Greg Suggs from sustaining a claim against James Taylor. Pursuant to Tenn. Code Ann. §50-6-108, the workers compensation act is the exclusive remedy for an employee injured during the course and scope of employment with qualifying employer.  Furthermore, pursuant to TENN. CODE ANN. §50-6-112, an employee cannot hold another employee liable for injuries resulting from a motor vehicle accident that occurred while both were acting within the course and scope of their employment and while the plaintiff is a guest passenger in the automobile operated by the defendant. Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328, (1954 Tenn.); TENN. CODE ANN. §50-6-112.

The following facts were undisputed: Gregory Suggs filed a workers’ compensation claim with Traveler’s Insurance relating to the subject accident; at the time of the subject accident, Gregory Suggs was a passenger in the vehicle James Taylor was operating; and at the time of the accident, Gregory Suggs and James Taylor were co-workers.

Based on the foregoing, Gregory Suggs was barred from bringing suit versus James Taylor for injuries arising from the subject motor vehicle accident and was entitled to judgment as matter of law.

Christopher West v. David M. Campbell and David K. Campbell, In the Circuit Court of Wilson County, Tennessee at Lebanon; Case No. 16-CV-566.

On September 19, 2019, McLemore Law PLLC obtained judgment as a matter of law for their clients, David M. Campbell and David K. Campbell. This case arose from a motor vehicle accident. Plaintiff filed suit alleging, negligence, negligence per se, negligent entrustment and reckless driving. Based on the admissible evidence in the record, the Court found the following material facts as undisputed:

An accident occurred on November 19, 2015 on Carthage Highway in Wilson County, Tennessee. David M. was operating a 1993 Ford F150 pulling a trailer. David K., David M.’s father, owned the vehicle and gave David M (hereinafter, “David”). permission to operate the truck. While David was driving, the truck’s electrical system failed, unexpectedly stalled, lost all power and refused to start. The truck’s sudden and total electrical system failure had never previously occurred and Defendants had no warning of the same.  His father regularly inspected, checked and maintained the condition of the truck. David was able to move the truck approximately two-thirds off the road without falling into the ditch. He retrieved a large flashlight from the truck, and began flagging down traffic while awaiting aid. David successfully flagged down three vehicles prior to Plaintiff’s arrival.

Plaintiff, at approximately 9:30 p.m., appeared over the hill traveling west on Carthage Highway. David first saw Mr. West a significant distance away and began signaling and flagging him down. Plaintiff made no attempt to slow or stop his vehicle despite David’s signaling with a large flashlight. Plaintiff then made contact with the Ford truck’s trailer. Plaintiff admitted at the scene that he fell asleep while driving. David was not given any citations for his role in the accident.

The Court held that the plaintiff’s evidence that Defendants were negligent, negligent per se, or reckless was insufficient as a matter of law. “It is a well-settled rule of this State that the mere fact that an injury has been sustained never raises a presumption of negligence.” Mullins v. Seaboard Coastline Ry. Co., 517 S.W.2d 198, 202 (Tenn. Ct. App. 1974); Armes by Armes v. Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992). Rather, to succeed under a theory of negligence, the plaintiff must prove each of the following elements: “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal, causation.”  Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

The Court found that based upon the undisputed facts and evidence in this case, no reasonable juror could find that Defendants were negligent in the operation of the Ford truck. The undisputed facts show that the Ford truck’s electrical system failed, unexpectedly stalled, lost all power and refused to start thereby creating an emergency situation. The Court granted Defendants’ Motion for Summary Judgment and dismissed Plaintiff’s Complaint with prejudice.

Gerald Kennedy and Rhonda Kennedy v. Amy Knapp, In the Circuit Court of Williamson County, Tennessee at Franklin; Case No. 94CC1-2017-CV-294.

On August 6, 2019, McLemore Law PLLC prevailed at trial receiving a judgment $2,040.93 representing the undisputed medical expenses related to Gerald Kennedy, plus $500.00 pain and suffering. Prior to trial, Ms. Knapp admitted that she was at fault, and admitted that the collision caused Gerald Kennedy to sustain a minor injury to his lower back for which he received medical treatment costing $1,540.93. Rhonda Kennedy sought no damages from Ms. Knapp on account of Gerald’s lower back claim.

The gravamen of this case, and the sole focus of the trial, was Mr. and Mrs. Kennedy’s additional claim that Gerald Kennedy also sustained an injury to his left leg which required surgical intervention costing medical expenses of $27,224.15. Mr. Kennedy claimed that he suffered pain and suffering, loss of enjoyment of life and permanent impairment. Mr. Kennedy’s Complaint sought damages of $500,000.00 and asked the jury to award Ms. Kennedy damages in excess of $100,000.00.

Defendant presented evidence that the left knee injury was unrelated and existed prior to this accident as evidenced by Dr. William Blake Garside’s treatment five-months before the incident. Dr. William Blake Garside testified at trial that Gerald Kennedy presented with a three-week history of pain and discomfort in his left knee on May 6, 2015; five-months before the subject accident. Dr. Garside performed a physical examination and diagnosed Gerald Kennedy with an internal derangement of the left knee with a probable medial meniscus tear. Defendant’s expert, Dr. Charles Cox, supported Dr. Garside’s pre-accident determinations.

Dr. Cox testified at trial that Gerald Kennedy’s left knee injury, a medial meniscus tear, was present prior to the subject accident. Dr. Cox stated that studies show that physical examination can be more accurate than an MRI in ascertaining the existence of a meniscus tear.  He also testified that Dr. Garside’s findings, five-months before the accident, were classic for a medial meniscus tear.  Dr. Cox testified to a “mid-90’s as far as a percentile opinion” of certainty that Gerald Kennedy’s alleged knee injury existed before the accident. Therefore, all such charges attributable to the knee and its related surgery were not necessary and were unrelated to this accident. Thus, Gerald Kennedy was left with the $1,540.93 in medical expenses attributable to his low back discomfort.

The jury, after hearing the testimony of Gerald Kennedy, Rhonda Kennedy, Dr. Cook, Dr. West, the responding officer, Dr. Garside and Dr. Cox, rejected all of Mr. Kennedy’s claims related to his alleged left leg injury and awarded no damages to Ms. Kennedy. The Court deemed Amy Knapp to be the prevailing party and taxed the costs in the bill of costs to the Plaintiffs.

Thomas Shane Sullivan, d/b/a Sullivan Trucking Company v. Specialized Truck Repair Corporation, In the Circuit Court of Williamson County, Tennessee at Franklin; Case No. 2017-664.

On April 29, 2019, McLemore Law PLLC obtained judgment as a matter of law for their client Specialized Truck Repair Corporation (hereinafter, “Specialized”). This case arose from a commercial truck repair dispute. Thomas Shane Sullivan delivered his truck to Specialized for the purpose of diagnostics and repairs. An agreement was entered into between the parties for Specialized to perform services on Mr. Sullivan’s truck in exchange for monetary compensation. Specialized performed the services Mr. Sullivan authorized; however, payment was not tendered by Mr. Sullivan. Specialized requested payment on the invoice and instead of providing payment, Thomas Shane Sullivan filed suit for conversion demanding $250,000.00 in compensatory damages and $250,000.00 in punitive damages.

Specialized denied liability and asserted that its possession of the truck was legal pursuant to Tennessee Code Annotated § 66-19-103; which, provides garagekeepers a lien on all vehicles that lawfully come into their possession and are retained in their possession until all reasonable charges are paid. T.C.A. § 66-19-103(a)(1)(A). In addition, Specialized asserted a lien through Tennessee Code Annotated § 66-19-101 for repairs or improvements made on Thomas Shane Sullivan’s truck. An Agreed Order was entered between the parties on April 10, 2018 stating that Specialized held a continued possessory mechanic’s lien. On March 1, 2019, Specialized filed its Motion for Summary Judgment suggesting Plaintiff’s evidence failed to establish that Specialized illegally possessed the truck or is liable for the possession of Mr. Sullivan’s truck. Specialized argued it was undisputed that Plaintiff delivered his vehicle to Specialized for repairs and authorized repairs to be performed in return for compensation. It was undisputed that Plaintiff failed to pay Specialized’s repair charges. Specialized contended it held a possessory garagekeeper’s lien and that Plaintiff’s conversion claim failed as a matter of law.

To prove conversion, a plaintiff must show (1) an appropriation of another’s tangible property to one’s own use and benefit; (2) an intentional exercise of dominion over the item alleged to have been converted; and (3) defiance of the true owner’s rights to the item. White v. Empire Express, Inc., 395 S.W.3d 696,720 (Tenn. Ct. App. 2012) (citing River Park Hosp. Inc. v. BlueCross BlueShield of Tenn., Inc., 173 S.W.3d 43, 60 (Tenn. Ct. App. 2002)). The Court held that there was no dispute Plaintiff failed to pay Specialized’s repair charges. Consequently, Plaintiff cannot establish that Defendant’s possession of the truck is contrary to Plaintiff’s own right under Tennessee law; which, is fatal to his conversion claim. The Court granted Specialized’s Motion for Summary Judgment and dismissed Plaintiff’s Complaint for conversion.

The suit is still pending as pertains to Specialized counter-claim versus Mr. Sullivan. In response to Mr. Sullivan’s suit, Specialized initiated a counter-claim for (1) Debt Collection; (2) Breach of Contract; (3) Quantum Meruit; and (4) Abuse of Process. These claims by Specialized remain pending following the dismissal of Plaintiff’s Complaint.

Nick DeFilippis and Gina DeFilippis v. Elizabeth S. Beam and Richard Urban; In the Circuit Court of Williamson County, Tennessee at Franklin; Case No. 2014-345.

On September 25, 2018, McLemore Law PLLC obtained judgment as a matter of law for their client Richard Urban. This case arose from a motor vehicle accident that occurred on September 27, 2013 on South Royal Oaks in Franklin, Tennessee, between Nick DeFilippis and Elizabeth Beam. At the time of the accident, Ms. Beam was driving Richard Urban’s vehicle to her job at Burger King.  Mr. Urban is Elizabeth Beam’s father and gave Elizabeth permission to drive his vehicle.

Nick and Gina DeFilippis filed suit on July 17, 2014. Unfortunately, Elizabeth Beam passed away on October 29, 2016 and an Administrator Ad Litem  was appointed leaving Richard Urban as the only living defendant. Mr. Urban was sued for $1,500,000.00 over this accident. Plaintiffs alleged Mr. Urban was liable under Tennessee Code Annotated §55-10-311 for providing Elizabeth Beam the vehicle for their mutual benefit. On June 25, 2018, Richard Urban filed his Motion for Summary Judgment suggesting Plaintiffs’ evidence that Ms. Beam was operating Mr. Urban’s vehicle for their mutual benefit was insufficient because the plaintiffs could only show permissive use with no mutual benefit. Following Mr. Urban’s Motion, Plaintiffs filed a Response denying that they sued Mr. Urban pursuant to Tenn. Code Ann. § 55-10-311 thereby removing themselves from the statutory presumption of liability. Plaintiffs argued that they sued Mr. Urban under the common law Family Purpose Doctrine.  Following this shift, Mr. Urban argued that the Family Purpose Doctrine has no application because there is no household and there is no parental support for a dependent child driver.

Under the Family Purpose Doctrine, in order to impose liability on the owner of a vehicle, plaintiffs must prove that (1) the head of the house maintained the vehicle for the purpose of providing pleasure or comfort for his or her family; (2) the driver was using the vehicle at the time of the injury in furtherance of that purpose; and (3) the head of the household must give express or implied permission to the driver. The Court held there was no dispute that Mr. Urban gave his daughter, Elizabeth Beam, permission to use his vehicle and that there was a factual dispute relating to whether Mr. Urban lending his vehicle provided pleasure or comfort. The issue before the Court was whether Mr. Urban was the head of household.

Following discovery, it was undisputed that Ms. Beam was thirty-one (31) years old when the accident occurred. Elizabeth did not live in the same physical household as her father, Richard Urban. Mr. Urban did not provide any financial support or have any financial interest in her employment with Burger King. Since Elizabeth Beam was on her way to her job at Burger King, she was not performing any errands or business for Mr. Urban at the time the accident occurred.  The only connection Mr. Urban had to the accident was that his daughter was using his vehicle. As a result, the Court held on September 25, 2018 that the plaintiffs failed to satisfy their burden in producing evidence that Mr. Urban was the head of Ms. Beam’s household. Accordingly, Richard Urban’s Motion for Summary Judgment was granted. 

Candes Prewitt v. Kamal Brown; In the Supreme Court of Tennessee at Nashville; Appeal No. M2017-01420-SC-R11-CV

On June 29, 2018, Candes Prewitt filed an Application for Permission to Appeal to the Tennessee Supreme Court. On behalf of Kamal Brown, McLemore Law PLLC filed an answer to her Petition for Certiorari.  Ms. Brown sought to have the Tennessee Supreme Court hear her appeal and overturn the Tennessee Court of Appeals.  In short, the Tennessee Supreme Court denied Ms. Prewitt’s Application on September 13, 2018 following the Supreme Court’s consideration of her 85-page pleading.  This finally marked the end of approximately 5 years of litigation. On March 19, 2019, the Court of Appeals of Tennessee at Nashville executed a Destruction Notification.

Shawn Gray, Individually, and as Administrator of the Estate of Angela D. Gray, Deceased, Jeremy G. Baird, v. Candis M. Lindsey, Sonya Baird and Terry Baird, Individually, and d/b/a Exposure Advertising; In the Circuit Court of Rutherford County, Tennessee at Murfreesboro; Case No. 70471

On May 7, 2018, McLemore Law PLLC obtained judgment as a matter of law for their client, Ms. Candis Lindsey.  This case arose from an unfortunate traffic accident that occurred on March 4, 2015, on State Highway 109 in Wilson County, Tennessee.  On that date, at roughly 3:30 p.m., Ms. Lindsey was traveling south on State Highway 109 on her way home from Volunteer State Community College, where she had taken classes earlier that day.  Ms. Lindsey was traveling behind the co-defendant, Jeremy Baird under the posted speed limit of 55 miles per hour, between 40 to 45 miles per hour, when Mr. Baird’s vehicle allegedly encountered a standing water on the highway, causing his vehicle to slide into the northbound lane and strike Ms. Angela Gray’s vehicle in the rear quarter panel.  The impact from Mr. Baird’s vehicle caused Ms. Gray’s vehicle to travel sideways at a high rate of speed into Ms. Lindsey’s lane of traffic. Ms. Lindsey immediately applied her brakes upon noticing Mr. Baird’s vehicle fishtailing before he crossed the center-line. Following contact between Mr. Baird and Ms. Gray, Ms. Lindsey was unable to avoid Ms. Gray’s vehicle traveling sideways, directly at her, in her own (Lindsey’s) lane of travel. Ms. Gray passed away in the collision.  Ms. Lindsey was sued for $10,000,000.00 over this accident.

Following discovery, there was no genuine issue of material fact that Ms. Lindsey committed no negligence given how the accident occurred.  Ms. Lindsey was traveling under the speed limit, already slowing, in her lane of travel, when the contact between Mr. Baird’s vehicle and Ms. Gray’s vehicle occurred. It was undisputed that Ms. Gray was in the southbound lane at the time of impact. Circuit Judge Barry Tidwell signed the Order dismissing Ms. Lindsey with prejudice.  The suit is still pending against the remaining defendants.  

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.

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.

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.