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October 2013 | Volume 49, No OCTOBER 2013 | VOLUME 49, NO. 10 TBA.ORG Sunk With Sinkholes Causing More Damage, What Protection Does Tennessee’s Statute Offer Your Clients? ALSO : TBA’s Health Law Section and Forum Celebrate 25th Year October is Pro Bono Month: Read about Tennessee’s Father of Pro Bono OCTOBER 2013 VOLUME 49, NO. 10 COVER STORY 12 Sunk What Protection Does the Sinkhole Statute Offer Your Clients? by Bruce A. McMullen and Joshua A. Mullen FEATURE STORIES 18 The Picture of Health TBA’s Health Law Section Is Tops in Country as It Celebrates 25th Year by Suzanne Craig Robertson 22 The Immortal Pleasant Miller The State’s Greatest Antebellum Lawyer and the Father of Tennessee Pro Bono by Russell Fowler 3 PRESIDENT’S PERSPECTIVE My Dream for Our Profession by Cynthia Richardson Wyrick 4 JEST IS FOR ALL by Arnie Glick 5 YOU NEED TO KNOW NEWS: October Is Pro Bono Month | PEOPLE | LICENSURE & DISCIPLINE 21 THE LAW LAUNCH PROJECT What Our 3Ls Are Saying This Month 28 SENIOR MOMENTS Two Crucial Words for Your Medicare Vocabulary: ‘Observation’ vs. ‘Admission’ by Monica J. Franklin and Gabrielle Blake 31 PAINE ON PROCEDURE Shalt Thou Love Thy Neighbor’s Trees? by Donald F. Paine 32 THE LAW AT WORK ON THE Retaliation Claims: More Difficult Standards Under Nassar and Ferguson COVER by Edward G. Phillips and Brandon L. Morrow Better go check your homeowners’ coverage. The 35 BOOK REVIEW Sinkhole Statute Duel with the Devil by Paul Collins, reviewed by Donald F. Paine requires your insur - ance company to offer coverage for 38 BUT SERIOUSLY, FOLKS! sinkholes, but you probably have to ask The Highly Exaggerated Death of Newspapers by Bill Haltom for it. Photo Jupiter Images. 40 CLASSIFIED ADVERTISING The cOmpleTe OCTOBER 2013 VOLUME 49, NO. 10 memBership JOURNAL STAFF EDITORIAL BOARD mOney sAving BenefiTs SUZANNE CRAIG ROBERTSON , Editor ANDRÉE SOPHIA BLUMSTEIN , Nashville, Chair TBA members have access to a wealth of member [email protected] WADE V. DAVIES, Knoxville PAUL A. GONTAREK, Nashville benefits. here’s a sample of what you can expect LANDRY BUTLER , Publications & Advertising Coordinator SCOTT GRISWOLD , Knoxville with your membership. [email protected] SUZANNE LANDERS , Memphis KAVITA GOSWAMY SHELAT , Memphis sAve On shipping BARRY KOLAR , Assistant Executive Director LAURA S. WOODS , Kingsport [email protected] save up to 36% on Ups next Day Air and up to 18% on DONALD F. PAINE , Editorial Board Ups ground shipping. Member Emeritus, Knoxville THE TENNESSEE BAR JOURNAL is listed in the INDEX TO LEGAL PERIODICALS . Tennessee Bar Journal , ISSN DiscOUnTs AT Office DepOT 0497-2325, is published by the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219- receive discounts on office supplies from Office 2198, (615) 383-7421, monthly. Periodicals Postage Paid, Nashville, Tenn. Subscription price: $60 per year. Members: $22 per year. Individual issues: $10 per copy. Back issues sold on an “as available” basis. Statements Depot. Order by fax, phone, the web or in person. or opinions expressed herein are those of the authors and do not necessarily reflect those of the Tennessee Bar shOw yOUr priDe Association, its officers, board or staff. POSTMASTER : Send address correction to Tennessee Bar Journal , 221 Fourth Ave. N., Suite 400, Nashville, TN show your professional pride and get rewarded for 37219-2198. doing it! The Tennessee Bar Association visa® © COPYRIGHT 2013 TENNESSEE BAR ASSOCIATION platinum rewards card is now available to all TBA ADVERTISING POLICY: While the Tennessee Bar Journal attempts to confine its advertising to legitimate busi - members. ness endeavors, the statements and material appearing in the advertisements are solely the responsibility of the advertiser. The Journal and the Tennessee Bar Association do not directly or impliedly endorse, support or TBA memBer insUrAnce sOlUTiOns vouch for the authenticity of any representation made in any advertisement appearing herein. The Journal graham swafford is dedicated to serving the insur - does not intend to accept any advertising material that is false and misleading. The Journal reserves the right ance needs of TBA members. he works with The Bar to refuse an advertisement it deems inappropriate. plan — TBA’s endorsed provider for malpractice CHANGE OF ADDRESS: If your address has changed, please notify the Tennessee Bar Association at 221 Fourth Ave. insurance — as well as other providers for health, N., Suite 400, Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal and other TBA publications. disability, and office insurance. BOARD OF GOVERNORS sAvings On AUTO insUrAnce CYNTHIA RICHARDSON WYRICK , Sevierville, President; JONATHAN O. The TBA has partnered with geicO Auto insurance to STEEN , Jackson, President-Elect; WILLIAM L. HARBISON , Nashville, Vice Pres - bring you competitive products and services. eligible ident; JACQUELINE B. DIXON , Nashville , Immediate Past President; SHERIE TBA members will receive a members-only discount of EDWARDS , Brentwood, Treasurer; JASON PANNU , Nashville, Secretary; TENNESSEE BAR JASON LONG , Knoxville, East Tennessee Governor (Position 1); ANDREW 8% on premiums. ASSOCIATION ROSKIND , Knoxville, East Tennessee Governor (Position 2); GARY SHOCKLEY , Nashville, Middle Tennessee Governor (Position 1); JAMES R. CARTIGLIA , Nashville, Middle Tennessee AccepT pAymenTs cOrrecTly Governor (Position 2); MICHELLE SELLERS , Jackson, West Tennessee Governor (Position 1); BRIAN with lawpay, your firm can accept credit cards with FAUGHNAN , Memphis, West Tennessee Governor (Position 2); ERIN MCARDLE , Jonesborough, confidence! The TBA member Benefit program offers Governor/1st District; TASHA BLAKNEY, Knoxville, Governor/2nd District; CHRIS VARNER , Chattanooga, Governor/3rd District; DONNA PIERCE , Sewanee, Governor/4th District; MARY DOHNER SMITH , reduced rates, multiple features for the client-attorney Nashville, Governor/5th District (Position 1); DAN BEREXA , Nashville, Governor/5th District (Position 2); transaction and a level of personalized service not easily KIM HELPER , Franklin, Governor/6th District; JASON CREASY , Dyersburg, Governor/7th District; CARL found elsewhere. CARTER , Memphis, Governor/8th District; CHARLES L. TROTTER JR. , Huntingdon, Speaker/House of Delegates; DAVID MCDOWELL , Chattanooga, President/TBA Young Lawyers Division; STACIE enhAnceD reseArch TOOls WINKLER , Memphis, President-Elect/TBA Young Lawyers Division; HON. JERRI BRYANT , Athens, Presi - now you can do your legal research with fastcase’s dent/Tennessee Judicial Conference; District Attorneys General Conference representative to be deter - mined; CAMPBELL SMOOT , Tullahoma, President/District Public Defenders Conference; PAUL NEY, premium level service which includes all U.s. District Nashville, General Counsel. court and Bankruptcy court decisions. That’s in addi - tion to statutes, regulations, constitutions and court TENNESSEE BAR ASSOCIATION STAFF rules from all 50 states as well as opinions from the U.s. ALLAN F. RAMSAUR , Executive Director; BARRY KOLAR , Assistant Executive Director; JOSIE BEETS , Public Policy Coordinator; DENISE BENTLEY , Youth Court Coordinator; KAISHA BOND, CLE Coordinator; supreme court and all federal courts of Appeal. it’s free LANDRY BUTLER , Publications Coordinator; THERESE BYRNE , Director of Meetings; CHRISTY with TBA membership. GIBSON , Assistant Committees and Sections Coordinator; PAM JOHNSON NOLAN , Financial Adminis - trator; JENNY JONES , Executive Assistant; LAUREN HOPPER LEE, CLE Coordinator; STEVE KING , To find out more, visit TBALink at A/V & Webcasting Coordinator; LINDA MURPHY , Receptionist; LYNN POINTER , Programs Adminis - www.tba.org/info/benefits. Or contact the TBA by trator; SUZANNE CRAIG ROBERTSON , Editor, Tennessee Bar Journal ; STACEY SHRADER JOSLIN , Media Relations and Young Lawyers Divison Director; BRITTANY SIMS , Leadership Law Coordinator; email — membership@ tnbar.org — or phone KELLY STOSIK , Membership Director; MINDY THOMAS-FULKS , Director of Continuing Legal Educa - at (615) 383-7421. tion; ELIZABETH SLAGLE TODARO , Access to Justice and Public Education Coordinator; and TANJA TREZISE , Customer Service Coordinator/ Accounts Receivable. 2 | TENNESSEE BAR JOURNAL OCTOBER 2013 PRESIDENT’S PERSPECTIVE BY CYNTHIA RICHARDSON WYRICK My Dream for Our Profession As we recently celebrated the 50th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech, I have been thinking about the message of his words and how they relate to the judicial system and the legal profession. In fact, his words have inspired my own dream for our profession. It is my dream that we will one day be able to stop talking about the issue of diversity in the profession — There is also the issue of the public’s and on the bench. Do I say that because perception of our legal system. I think we “Have you ever walked into the issue of diversity is unimportant? can all agree that it is critical for the Quite to the contrary: I submit to you public to have confidence in our legal a room where you were the that diversity in the profession and on system, if it is to function effectively. It is only one there who was of a the bench is critical if our profession is essential that all of our citizens, regardless to thrive, and if the public is to have full of race, gender or background, believe particular race or gender, confidence in our legal system. that they will be treated fairly by our legal When I think about the concept of system. Can a citizen of our
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