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 state have or from a certain place, diversity in the context of our legal that confidence if none of the members of system, I think about many types of the profession or judges on the bench and everyone else diversity that are necessary in order for look like them nor have similar shared the trait that you the legal system to be all that it can and geographic backgrounds? Have you ever should be. We need racial and ethnic walked into a room where you were the did not possess? diversity, gender diversity, diversity of only one there who was of a particular practice type, diversity of practice size, race or gender, or from a certain place, How did you feel?” and diversity of practice location (i.e., and everyone else shared the trait that rural versus big city), to name a few. you did not possess? How did you feel? Why is diversity so important? There are You likely felt like an outsider no matter many answers to this important ques - how well you were treated by the group, tion. For me, two are particularly key. and no matter how many times they The first is having a fair and impartial assured you that your lack of the shared judiciary to preside over the legal trait made no difference . matters our profession brings before it. These issues are some of the most We have all heard that we shouldn't important reasons why the Tennessee judge until we have “walked a mile in Bar Association has long been someone else's shoes.” We do not leave committed to having a merit selection our life experiences at the door when we system for our appellate judges. Our walk into our law offices, nor do judges merit selection system allowed us to check their experiences in their cham - make great strides in diversity on the bers before taking the bench. If all of the bench. We were one of the first states to members of our profession are of the have a majority female Supreme Court. same race, gender and background, can Our appellate judges are also more our system possibly give fair considera - racially and ethnically diverse; they tion to the circumstances and legal come from small towns and from big issues experienced by those with whom cities; and they are from a variety of they have little in common? Continued on page 4
OCTOBER 2013 TENNESSEE BAR JOURNAL | 3 LETTERS OF THE LAW PRESIDENT’S PERSPECTIVE continued from page 3
Bipartisan Efforts of ‘COUP’ practice settings and types. While we achieving a fully diverse profession and Should Be Inspiration for Today have lost this important system for the bench but we need for our members to moment, your association is hard at commit themselves to this important Many thanks to the TBJ for publishing work to find a way to ensure that there goal as well. Remember, “Together We the review [September 2013] by Judge will continue to be a meaningful merit Make A Difference!” Walter C. Kurtz and Chancellor Ellen component to the process for the selec - Lyle of Keel Hunt’s book, COUP: The tion of our appellate judges. TBA President CINDY WYRICK practices law Day the Democrats Ousted Their Governor, So now, back to my dream. I dream with Ogle, Gass & Richardson PC in Sevierville, Put Republican Lamar Alexander in Office of the day that we no longer need to and she focuses her practice primarily on the Early, and Stopped a Pardon Scandal. discuss the issue of diversity in the areas of personal injury, wrongful death, The reviews certainly brought back, profession and on the bench, because medical malpractice, business disputes, domestic relations and general civil litigation. the profession and bench are so diverse that the issue has become moot. Until that dream is a reality, your association “The brave and public- will continue to pursue the goal of spirited actions of those involved showed Tennessee at its best.” WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publication on the basis of timeliness, taste, clarity and space. They should be typed and include the author’s name, address and phone number (for verification purposes). Please send your comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; as I am sure the book will do as well, EMAIL: [email protected]. those incredible and exciting days in January 1979 when one of the most extraordinary transfers of power in our nation’s history took place. I was at that time a second-year law student, employed on an allegedly part-time basis by then-Nashville-Davidson- County-Metro Public Defender Kurtz, residing within a few blocks of the office where then-Gov. Blanton was busily signing commutations and pardons, and the Supreme Courtroom where Chief Justice Joe Henry administerd the oath of office to Lamar Alexander, surrounded by the Democratic leaders of the Tennessee legislature. Those were heady and electric times, in which the bipartisan efforts of both state and federal officials achieved a swift and just result. The brave and public-spirited actions of those involved showed Tennessee at its best; a look back on that time, in Mr. Hunt’s book, should serve as inspiration for all of us today. — Kenneth J. Ries, Roanoke, Va.
4 | TENNESSEE BAR JOURNAL OCTOBER 2013 YOU NEED TO KNOW NEWS
BRIEFS Legal Clinics and Events Planned Disciplinary Enforcement October Is Pro Bono Month Rule Overhauled The Tennessee Supreme Court issued This month, Tennessee lawyers are joining their colleagues across the country its much-anticipated rewrite of Rule 9 to provide free legal services to those in need and honor the good work on disciplinary enforcement Aug. 30. performed by lawyers every day as part of the annual National Pro Bono The overhaul is the first comprehensive Celebration. reordering and revamp of the rule since Now in its fifth year, the TBA’s statewide the original rule was adopted in the Celebrate Pro Bono initiative brings together 1970s. Many of the suggestions prof - VOLUNTEER legal services providers with local bar asso - fered by the TBA were adopted, ciations, law schools, law firms and indi - including new provisions that clarify a for JUSTICE vidual lawyers to offer free services to those lawyer’s obligations when the lawyer is unable to afford a lawyer. no longer able to practice. Perhaps the This year nearly 400 volunteers are expected to participate in dozens of most significant change urged by the events and activities across the state that will offer assistance to more than TBA — a change to a standard of clear 1,000 Tennesseans in need. Activities include legal advice clinics, education and convincing evidence to prove lawyer programs, public presentations and other events. misconduct — was omitted. The court Every year, Tennessee lawyers help thousands of clients by providing free also did not move to limit ex parte legal assistance. The month of October is an communications between the Board opportunity to focus attention on the signifi - of Professional Responsibility and cant need for pro bono services as well as a potential hearing panel members. celebration of the outstanding work of those in Learn more about the amended the legal community who volunteer their serv - Rule 9 at a CLE set for Nov. 15 that ices throughout the year. will provide a guided tour of what’s Visit the TBA website for a summary of new, what’s unchanged and what events planned for October, including oppor - may continue to be controversial tunities for volunteers. going forward. Court Expands Payments to Law Schools Come Together Client Protection Fund for Pro Bono Training The Tennessee Supreme Court also Representatives from all six Tennessee law schools gath - adopted an order requiring all attor - ered in Knoxville last month with leaders from the access to justice community for the second Law School Pro Bono & neys who practice in the state — Public Interest Conference, sponsored by the Tennessee Bar regardless of the state in which they Association's Access to Justice Committee. About 40 are licensed — to pay into the people took part in the program, including Supreme Court justices Janice Holder (pictured) and Lawyers’ Fund for Client Protection. The Sharon Lee, ATJ Commission Chair Buck Lewis, Commission Vice Chair Dean Doug Blaze (pictured), fund, which was established three and representatives from Legal Aid Dave Yoder, Chay Sengkhounmany and TBA President Cindy Wyrick. They engaged in conversations about the needs, opportunities, challenges and possibilities decades ago, reimburses individuals for surrounding pro bono work and related issues. Lewis, a former TBA president, delivered the keynote financial losses suffered after entering address, highlighting the historic collaborations that have produced outstanding developments, into an attorney-client relationship. while issuing the clear call to action that much work still remains. Photo by Elizabeth Slagle Todaro. Previously, the rule applied only to those continued on page 6
OCTOBER 2013 TENNESSEE BAR JOURNAL | 5 NEWS continued from page 5
licensed by Tennessee. Also of note, the order extends from one to three years the amount of time a client has to make a claim. The court reports that these changes will go into effect Oct. 1. Don’t Overlook Public Service Loan Forgiveness Program The Consumer Financial Protection Bureau has created a new tool kit for employers to increase awareness about the Public Service Loan Forgiveness program, the ABA Journal reports. The program forgives unpaid balances on federal direct student loans after 10 years of work for the government or nonprofits. In an interview with The Learning How to Get a Job More than 60 students from law schools across the region interviewed with Tennessee law firms and New York Times, attorney Raha Wala, government agencies during the third annual TBA Diversity Job Fair, Aug. 23-24, at the Tennessee Bar who works for an international human Center. The event began with a panel discussion on how to find a job in the current market and was rights organization and has $200,000 in followed by a networking reception and a full day of interviews. The job fair panel featured (from left) Ann law school debt, said the program is Pruitt of the Tennessee Alliance for Legal Services, Andrae Crismon from the Legal Aid Society of Middle “enabling me to do the work that I love.” Tennessee & Cumberlands, Tameka Corlew Smith of Capital Accounts in Brentwood and Matt Potempa of Martin Heller Potempa & Sheppard PLLC in Nashville. Photo by Jenny Jones. TALS Announces Access to Justice Winners The Tennessee Alliance for Legal Serv - Tennessee Rules of Appellate Procedure. suit sought forfeiture of any commis - ices (TALS) honored its 2013 Access to “The use of electronic recording has sions Pinkus or his company may have Justice Award recipients in September. proven to be an exceptionally accurate received since 2007. Honorees include Gordon Bonnyman, and economical method of preserving founding executive director of the the trial record and the response from Lewis Receives Tennessee Justice Center, Harrison litigants and lawyers in my courtroom Presidential Citation McIver III, executive director of has been universally positive,” said Former TBA President and Memphis Memphis Area Legal Services, and Davidson County Circuit Court Judge attorney George T. “Buck” Lewis was Charity Miles Williams and Emily Thomas W. Brothers. awarded a Presidential Citation from O’Donnell, both outgoing ABA President Laurel Bellows Find the links and from Legal Aid What Would Atticus Do? at the ABA Pro Bono Publico Awards more details for of East Nelle Harper Lee, author of T o Kill a Luncheon in August. The presidential these stories at tba.org/journal_links Tennessee. The Mockingbird, and literary agent Samuel citation is a new award that allows the Access to Justice Pinkus reportedly reached an “agree - ABA president to recognize lawyers who Dinner will be ment in principle” in September to settle make “noteworthy contributions to the held Oct. 9 in Nashville. a copyright suit brought by Lee. Counsel legal profession and the ABA,” and who for Pinkus said a settlement had been exhibit “outstanding leadership quali - Court Updates Technology reached and papers dismissing the case ties.” The luncheon was held in Provisions Rule would be filed in federal court next conjunction with the ABA Annual The Tennessee Supreme Court updated week. No details were disclosed, the Meeting in San Francisco. Lewis is a Rule 26 regulating the use of recording Tennessean reported. Lee, who won the shareholder at Baker, Donelson, equipment in light of technological Pulitzer Prize for the book in 1961, has Bearman, Caldwell & Berkowitz and advances. The rule outlines procedures alleged that Pinkus “duped” her into chair of the firm’s Appellate Practice Liti - for recording trial court proceedings and signing over the copyright to his gation Group. includes provisions for designating the company in 2007. Pinkus assigned the recording as the transcript under the copyright back to Lee in April 2012. The
6 | TENNESSEE BAR JOURNAL OCTOBER 2013 YOU NEED TO KNOW LICENSURE & DISCIPLINE
DISCIPLINARY Shawn Patrick Sirgo of Davidson Administrative Suspensions Censured County received a public censure from Now Online Wilson County lawyer James Henry the Board of Professional Responsibility Notice of attorneys suspended for, Flood received a public censure on on Aug. 12 for practicing law while his and reinstated from, administrative Aug. 7 for failing to (1) deposit a client’s license was suspended. The board deter - violations — including failure to funds in his trust account and (2) mined that his actions violated Rule 5.5 pay the Board of Professional remove a fee from his trust account in a of the Rules of Professional Conduct. Responsibility fee, file the IOLTA timely manner. Flood entered into a report, comply with continuing contingency contract stipulating that a Suspended legal education requirements and client would pay him 25 percent of any Nashville attorney William Alan Alder pay the Tennessee professional past due social security benefits that was suspended on Aug. 7 for two years, privilege tax — is now available were recouped. The client made peri - with the suspension to run consecu - exclusively on the TBA website. odic payments to be held for expenses tively with a one-year suspension Visit http://www.tba.org/ or for satisfaction of the contingency imposed on Dec. 28, 2012. The directory-listing/administrative- fee. Flood received six payments from Tennessee Supreme Court found that suspension-lists to see adminis - the client, but failed to deposit three of Alder failed to diligently handle two trative suspensions imposed them in his trust account. An overdraft lawsuits, failed to communicate since 2006. occurred when Flood wrote a check to adequately with clients and made a himself on the account. In a second misrepresentation to a client. In addi - matter, Flood earned an attorney fee in tion to imposing the suspension, the tion, the court found that Maddux did May 2012 but failed to remove the court directed Alder to make restitution not notify the opposing party that funds funds from his trust account for more to a client, consult with the Tennessee had been collected until after he made a than seven months. The Board of Lawyers Assistance Program and pay distribution to his client. Maddux Professional Responsibility determined the Board of Professional Responsi - appealed the suspension to the Hamilton that these actions violated Rule 1.15 of bility’s costs in this matter. The court County Chancery Court, which affirmed the Rules of Professional Conduct. found his actions violated Rules of the hearing panel’s recommendation. Professional Conduct 1.2, 1.3, 1.4, Maddox then appealed to the state Jefferson County lawyer Jill R. Talley 1.15, 1.16(d), 3.2, 8.1(b) and 8.4(a), (c) Supreme Court, which also upheld the received a public censure on Aug. 7 for and (d). recommended suspension and imposed harming a client. In representing a client the discipline. The court found that in divorce matter, Talley filed a motion On Aug. 9, H. Owen Maddux of Maddox’s actions violated Rules 1.15(b), and affidavit to withdraw from the case Chattanooga was suspended for nine 4.1 and 8.4(a) and (c) of the Rules of stating that “there have been several months for ethical misconduct in the Professional Conduct. instances where [client] has not been representation of two plaintiffs in a busi - completely truthful concerning certain ness dispute. In an effort to collect Disbarred issues, including her actions, in the money due to the pair, Maddux sent Jimmy Vallejo Delgado , an attorney case.” The Board of Professional Respon - letters to customers demanding that licensed to practice law in Tennessee sibility determined that this statement to payment be made directly to him. He and Texas, was disbarred and ordered to the court caused the client to suffer stated that he would deposit the funds pay $96,826 in restitution to former harm and was a violation of Rule 1.6 of with the court pending a resolution. clients by the Tennessee Supreme Court. the Rules of Professional Conduct. According to the court, however, he gave the money to his clients instead. In addi - continued on page 10
Compiled by Stacey Shrader Joslin from information provided by the Board of Professional Responsibility of the Tennessee Supreme Court. Licensure and disciplinary notices are included in this publication as a member service. The official record of an attorney’s status is main - tained by the board. Current information about a particular attorney may be found on the board’s website at www.tbpr.org.
OCTOBER 2013 TENNESSEE BAR JOURNAL | 7 YOU NEED TO KNOW PEOPLE
U.S. District Judge and George D. Spanos has joined the Former state senator Michael A. Faulk former TBA President J. Nashville law firm of Rogers, Kamm & has been sworn in as a new circuit court Daniel Breen assumed Shea as an associate. Spanos graduated judge in the Third Judicial District. Faulk the position of chief from the Nashville was appointed by Gov. Bill Haslam to judge of the U.S. District School of Law in 2012 complete the term of retiring Judge Breen Court for the Western and formerly was Kindall Lawson. Faulk, 59, has practiced District of Tennessee this summer. Breen, employed by the firm as law in Church Hill since 1982. He served who has served on the court since 2003, a law clerk. He will as a Tennessee state senator representing began his judicial career in 1991 as a handle civil and family Claiborne, Grainger, Hancock, Hawkins, magistrate judge in the Western District. law matters. Spanos Jefferson and Union counties in the 106th He served in that capacity until nomi - and 107th Tennessee General Assemblies. nated to the district court by President The Knoxville law firm of Paine, George W. Bush. Tarwater and Bickers recently received The Nashville law firm of Bone The Law Firm of the Year Award from McAllester Norton has launched a crim - Shelby County Chancery Court Judge Legal Aid of East Tennessee (LAET) in inal defense and government investiga - Arnold B. Goldin has been selected by recognition of the firm’s commitment to tions practice, and has hired former U.S. Gov. Bill Haslam to fill a vacancy on the pro bono work. In addition, two attor - Attorney Edward M. Yarbrough for the Tennessee Court of Appeals’ Western neys with the firm — Ryan Connor and group. Current Bone McAllester lawyer Section. He replaces Alan E. Highers, Kati Goodner — were James Mackler , a former senior trial who is retiring. Goldin was appointed recognized by LAET for counsel in the Judge Advocate General chancellor in 2002 by then-Gov. Don contributing at least 25 Corps., also will join the group. Yarbor - Sundquist, was elected in 2004 and was hours of pro bono ough left the Middle Tennessee prose - re-elected to a full eight-year term in 2008. service in 2012. cutor’s office in 2010 and has been LAET also presented working at the Nashville law firm of Gov. Bill Haslam appointed Judge Connor its annual Pro Bono Walker Tipps & Malone. Robert H. Montgomery Jr. to the Court Advocacy Award to of Criminal Appeals. Montgomery, who Knoxville lawyer Nashville lawyer P. has served the Second Judicial District as Richard L. Duncan for Matt Potempa has a criminal court judge since 2006, will almost 100 hours of pro received the 2013 replace Judge Joseph M. Tipton, who bono service during the Nashville Emerging announced earlier this year he would not year. Duncan is a sole Leaders Award in the seek re-election at the end of his term in Goodner practioner working in Legal Services Category. August 2014. the areas of elder law The award, presented by Potempa and immigration. He earned his law the Nashville Area Judge William E. “Bill” Higgins has degree from Tulane University Law Chamber of Commerce been elected by his colleagues as the new School in 1979. and YP Nashville, recog - presiding judge of the Davidson County nizes those who exhibit General Sessions Court. Dickinson Wright attorney Kelly Frey accomplishments in was a panelist at the ABA Business Law their respective fields Douglas T. Jenkins of Rogersville has Section Annual Meeting in August. The and demonstrate leader - Martin been sworn in as a new chancellor in the presentation was held in conjunction with ship in community Third Judicial District. Jenkins has prac - the release of the third edition of Intellec - service activities. ticed in Rogersville since 1997. The tual Property Deskbook for the Business Potempa, who had vacancy was created by the appointment Lawyer: A Transactions-Based Guide to been working as a solo of Chancellor Thomas R. Frierson to Intellectual Property Law . Frey co-authored practioner, recently part - the Tennessee Court of Appeals earlier two chapters of the book. Frey practices nered with Sean Martin this year. in the firm’s Nashville office. and David Heller , Heller
8 | TENNESSEE BAR JOURNAL OCTOBER 2013 formerly of DHPM, and Passages Jennifer Sheppard, to form Martin Heller Lebanon attorney JERE MCCULLOCH died Aug. 24 while competing in a Potempa & Sheppard. bicycle race sponsored by the Murfreesboro Bicycle Club. McCulloch, 66, was a The firm will focus on founding partner and long-time managing member of McCulloch & Aulds, Sheppard estate and tax planning, which later became Rochelle, McCulloch & Aulds. McCulloch also was a past wealth management, president and member of the 15th Judicial District Bar Association and a probate and trust litigation, conservator - Tennessee Bar Foundation fellow. He earned his law degree in 1972 from the ships, family law and personal injury University of Tennessee. In lieu of flowers, memorials may be made to the Mt. cases. The new office is located at 2122 Juliet-Wilson County Library, 2765 N. Mt. Juliet Road, Mt. Juliet, TN 37122 or 21st Ave. South, Nashville 37212. It can a local charity of choice. be reached at (615) 800-7096. CLAUDE ORION RAMER II died Aug. 26 at his home in Knoxville. He was Michelle Fogarty has joined the 69. Ramer, who served in the U.S. Air National Guard as a pilot, graduated from Brentwood law firm of Papa & Roberts as the University of Tennessee and the Vanderbilt University Law School. After an associate. She will practice in the areas completing law school, Ramer served as a law clerk for U.S. District Judge L. of family law and probate. Fogarty previ - Clure Morton, and then began a long career in private and corporate law. He ously worked for the entered private practice with the Nashville firm of Dearborn & Ewing and later state of Tennessee and joined the investment firm of J. C. Bradford & Co. In 2001, Ramer returned to the federal government, Knoxville where he continued the practice of law until his death. During his as well as in private career, Ramer served on numerous professional, civic and charitable organiza - practice. She is a grad - tions, including the board of directors of Alzheimer's Tennessee. In lieu of uate of the University of flowers, donations may be made to Alzheimer's Tennessee Inc., 5801 Kingston Fogarty Georgia School of Law. Pike, Knoxville, TN 37919.
Real estate attorney Hamilton W. Knoxville lawyer and TBA senior counselor HAROLD B. STONE died Aug. Patrick has joined the Nashville office of 28 at the age of 89. A veteran of World War II, Stone was the youngest artillery Bradley Arant Boult Cummings as an officer in the U.S. Army and was the recipient of the Purple Heart, Air Medal associate. He will handle commercial real with four Oak Leaf Clusters, Bronze Star, Distinguished Flying Cross and Amer - estate transactions for clients in the retail, ican Defense Medal. After the war, Stone attended the University of Tennessee. restaurant, health care, manufacturing Following graduation, he worked in public accounting while earning a law and wireless industries. Prior to joining degree from the school’s College of Law. He established his law practice in 1952 the firm, Patrick worked at Waller. He and remained active in the firm of Stone & Hinds until shortly before his death. earned his law degree from the Texas Stone served on the board of directors for the Knoxville Opera and Presbyterian Southern University Thurgood Marshall Homes of Tennessee. He also was active in the Kiwanis Club and was a member School of Law. of the Sons of the Revolution. In lieu of flowers, contributions may be made to The firm also announced that Emily the University of Tennessee Foundation, Harold Bell Stone Scholarship Endow - Hatch Bowman , a partner in the ment, 600 Henley St., Suite 100, Knoxville, TN 37996. Nashville office, has been elected a fellow in the American College THOMAS FRANKLIN INGRAM of Lenoir City died Sept. 1. He was 88. He of Mortgage Attorneys earned his law degree from Cumberland School of Law in 1950 after serving in (ACMA). Bowman the U.S. Navy as a pilot in World War II. He worked for the FBI in Washington, handles commercial, real D.C. before moving back to Lenoir City to practice law with Daniel & Fowler. estate and lending He was a General Sessions judge in Loudon County and later Lenoir City judge. matters for banks, insur - In lieu of flowers memorials may be made to Central United Methodist Church, ance companies and 301 Hickory Creek Road, Lenoir City, TN 37771. Patrick corporate clients. ACMA fellows are recognized as distinguished practi - from Vanderbilt University Law School. Haslam. Lampley is a graduate of the tioners in the field of real school and its College of Law. As an offen - estate mortgages and as Brad Lampley , partner in charge of sive line player on the football team, he leaders in the legal the Nashville office of Adams and Reese, was named to the Southeastern Confer - profession. Bowman was appointed to the University of ence’s All-Academic Team three times. Bowman earned her law degree Tennessee Board of Trustees by Gov. Bill continued on page 10
OCTOBER 2013 TENNESSEE BAR JOURNAL | 9 PEOPLE continued from page 9 LICENSURE & DISCIPLINE Lampley will serve on the board through Washington, D.C., and continued from page 7 May 2018 as the representative of the London offices. seventh congressional district. At Adams Alexander joins the firm The court’s action on Aug. 7 was and Reese, he practices in the areas of as of counsel and as a based on allegations that Delgado transportation, energy, health care, insur - member of the Business never informed clients in a Georgia ance, banking and construction. Team. Alexander previ - wrongful death case that he was not Alexander ously served as a trade licensed to practice law in that Chattanooga lawyers negotiator in the Clinton administration, state. The court also found that Alix C. Michel and leading the U.S. negotiating team to the Delgado never met personally with David J. Ward have World Trade Organization and repre - the clients, settled the case without founded Michel and senting the U.S. in negotiations before the the clients’ knowledge or consent, Ward PC, a general prac - World Customs Organization in Brussels. and failed to promptly remit settle - tice firm located in the ment funds to the clients. The Chattanooga/ Hamilton Michel Steven E. Blumenthal, former general Tennessee Supreme Court found County Business Devel - counsel for Carfax Inc., has joined the that his actions violated Tennessee opment Center, also Nashville law firm of Bone McAllester Rule of Professional Conduct 8.1(b) known as the Business Norton. He will practice in the areas of and Georgia Rules of Professional Incubator. The pair will business and corporate law, banking and Conduct 1.2(a), 1.15(I) and (II), focus on medical and financial services, commercial lending 5.5, 8.4 and 9.4. professional malpractice, and creditors’ rights. Blumenthal also has prescription drug claims, Ward experience with entrepreneurial and long-term care claims, personal injury emerging business law as well as innova - Compiled by Linda Murphy and Stacey and other general civil cases. The firm is tive Internet, tech - Shrader Joslin Tennessee Bar Association located at 100 Cherokee Blvd., Suite 204, nology and data members may send information about job changes, Chattanooga 37405 and can be reached at privacy issues. A native awards and work-related news. Send it to PEOPLE, (423) 602-9522. of Memphis, Blumen - c/o The Journal at 221 Fourth Ave. N., Suite 400, thal earned his law Nashville, TN 37219-2198, or email to [email protected]. Submissions are subject to Stites & Harbison attorney William L. degree from the editing. Pictures are used on a space-available Penny has taken office as the new chair of University of Virginia basis and cannot be returned. Electronic photos the American Bar Association’s Section of Law School. Blumenthal must be saved as a tiff or jpeg (with no compres - Environment, Energy and Resources. He sion), minimum resolution 200 dpi, and at least is the first Tennessean to lead the group 1"x1.5" or they will not be used. and will serve through July 2014. A long - time Nashville resident, Penny has prac - ticed environmental law and litigation for more than 30 years. He previously served Problems are not signs of failure but as general counsel for the Tennessee opportunities for growth … Department of Environment & Conserva - tion. Penny was the first We provide consultation, referral, intervention, education, and peer support chair of the TBA’s Envi - ronmental Law Section services for lawyers, judges, bar applicants, law students and their families. and the Nashville Bar Association’s Environ - All calls are confidential and free. If you or someone you know is suffering from mental Law Committee. stress, anxiety, burn-out, grief, major life changes, depression and/or He teaches environ - Penny substance abuse problems , call the mental and administra - tive law at the Nashville School of Law. TENNESSEE LAWYERS ASSISTANCE PROGRAM
Baker, Donelson, Bearman, Caldwell & 1-877-424-TLAP Berkowitz has announced the addition of Dr. Klint Alexander to its Nashville,
10 | TENNESSEE BAR JOURNAL OCTOBER 2013
COVER STORY
By Bruce A. McMullen Sunk and Joshua A. Mullen What Protection A sinkhole measuring 122 feet in depth recently forced Love Chapel Elementary School in Erwin, Tenn., to permanently close its doors. The Does the Unicoi County Board of Education determined that the 60-year-old school was no longer safe after seismic testing showed that sinkhole activity Sinkhole Statute was occurring across the school’s property. 1 In May 2010, the eastbound lanes of Interstate 24 between Nashville and Chattanooga, were closed Offer Your for several days after a sinkhole measuring 25 feet in depth suddenly appeared in the middle of the highway. 2 In April and May of 2013, sink - Clients? holes caused roads in Nashville, Franklin and Knoxville to close for repairs. 3 Several Knoxville television stations also recently reported on the travails of high school teacher Debra Petersen, who may be forced to file bankruptcy because of a sinkhole under her home. 4 Petersen told reporters that her homeowners’ insurance policy will only pay $10,000 of the damages that total more than $100,000. 5 It will cost between $100,000 and $200,000 to fix the problem.
12 | TENNESSEE BAR JOURNAL OCTOBER 2013 As shown by the above stories, Tennessee referencing circuit court rulings that the itself, by endorsement, or through other is one of the leading states for sinkhole authors are aware of from litigating these coverage that the insurer may arrange, activity. According to the United States types of cases. and the insurer may make an additional Geological Survey (USGS), Tennessee is charge for the coverage.” 15 The statute prone to sinkhole activity because of its 1. Tenn. Code Ann. § 56-7-130(b)- does not include affirmative language karst terrain. 6 Karst refers to various (c) requires insurance companies to requiring sinkhole coverage. landforms that result from the dissolving make sinkhole insurance “available,” Beyond the express statutory of carbonate bedrock. 7 Much of but it is not a mandatory form of language, the legislative history also Tennessee is underlain with carbonate coverage. shows that the Sinkhole Statute was bedrock that naturally dissolves when Homeowners policyholders in never intended to require automatic contacted by groundwater. 8 The Tennessee should not assume that they coverage. During legislative debate, the dissolving rock sometimes results in have sinkhole coverage. Most traditional Senate sponsor of the underlying sink - spaces and caverns that can no longer homeowners policies include an earth hole legislation, Sen. Roy Herron, support the heavy soil. Sinkholes occur repeatedly told his colleagues that the when the soil depresses into a void bill did not require insurers to automati - because the underlying bedrock no cally place sinkhole insurance on every longer provides adequate support. 9 Most policy. For example, on April 18, 2006, sinkhole activity in Tennessee occurs in “Tennessee is one of the Sen. Herron told the Senate Commerce the eastern and middle portions of the Committee that “[t]hey don’t have to state. The Tobin and Weary USGS leading states for make it a part of their basic coverage but geological map shows that Tennessee’s sinkhole activity.” they have to make it available to home - karst terrain primarily exists between owners that [sic] want to purchase that approximately the western edge of insurance.” 16 Before the Senate, Finance, Middle Tennessee and the state’s far Ways & Means Committee on May 9, eastern border. 10 This region encom - 2006, Sen. Herron again told his passes most of Tennessee’s biggest cities, movement exclusion that generally colleagues that “[i]t does not require including Nashville, Knoxville, Chat - excludes coverage for “any change of them to include it in every policy, they tanooga, Johnson City and their place, position or posture of the soil.” 12 just have to make it available.” 17 Similar surrounding suburban counties. Sinkholes resulting from the collapse of exchanges occurred in the House of Because of Tennessee’s proneness for soil through dissolved bedrock would Representatives where the members sinkholes and because of the significant fall within this common exclusion. 13 referred to the bill as requiring a new damage that can result from them, on While the Sinkhole Statute imposes “option,” not mandatory insurance. 18 May 17, 2006, the Tennessee General certain obligations on homeowners Though sinkhole coverage is not Assembly approved legislation to insurance companies, it does not make mandatory, some debate exists about address how homeowner property insur - sinkhole insurance a mandatory form of how insurance companies may make it ance companies should handle sinkhole coverage. The plain language of the “available” to customers. For example, to claims. 11 Tenn. Code Ann . § 56-7-130, statute and its legislative history both the extent that companies choose to the Sinkhole Statute, imposes certain show that the insurance must simply be make the insurance available by obligations on all insurers selling home - “available” to those who want to endorsement as described under Tenn. owners property insurance in Tennessee. purchase it. Tenn. Code Ann . § 56-7- Code Ann . § 56-7-130(c), does the Sink - The Sinkhole Statute does not apply to 130(b) provides the following about hole Statute also require companies to commercial structure or general liability making sinkhole insurance available: advertise the existence of the endorse - policies, but only to homeowners poli - Every insurer offering homeowner ment? If a customer tells an agent that cies. Since the statute’s enactment, no property insurance in this state shall she wants the cheapest policy available, Tennessee appellate court has inter - make available coverage for insurable does the agent still have a duty to inform preted its provisions and no regulations sinkhole losses on any dwelling, the customer about an optional endorse - have been promulgated. However, the including contents of personal prop - ment that comes with an additional statute is increasingly being litigated in erty contained in the dwelling, to the charge? The authors are aware of only several trial courts across Tennessee. extent provided in the policy to which one Tennessee court that has directly This article addresses the rights and the sinkhole coverage attaches. 14 interpreted Tenn. Code Ann . 56-7-130 liabilities of both policyholders and regarding the above questions and it insurance companies under the Sinkhole Subsection (c) of the Sinkhole Statute ruled that no notice or affirmative state - Statute by discussing its statutory further provides that companies “may ment about sinkhole insurance is language and legislative history, and by make coverage available in the policy Continued on page 14
OCTOBER 2013 TENNESSEE BAR JOURNAL | 13 Sinkhole Statute continued from page 13 with “make … coverage available” because sinkhole insurance is not a language similar to Tenn. Code Ann . § mandatory form of coverage, the applica - required under the statute. On July 19, 56-7-130. 24 Relying on the “make … tion of subsection (d) presents confusing 2011, Judge Jeffrey S. Bivins 19 with the available” language, the Edens plaintiff questions for insurance companies and Williamson County Circuit Court, 21st argued that the court should read a adjusters handling those claims. For Judicial District, addressed Tenn. Code commercial reasonableness test into the example, if an insured has not requested Ann . § 56-7-130 and concluded that statute to require the company to sinkhole insurance or has outright “[t]he plain language of Tenn. Code Ann . provide the insured with notice of the refused the insurance, is the insurer still § 56-7-130 does not require an insur - insurance. The Edens plaintiff argued required to follow the minimum investi - ance agent or an insurance company to that a commercial reasonableness test gation requirements of the Sinkhole take affirmative actions to make poten - would prevent companies from selling Statute? No Tennessee appellate court has tial policyholders aware of sinkhole the coverage to only those knowledge - answered this question. insurance coverage.” 20 able enough to request it. 25 The Eighth Insurance companies have valid argu - A comparison of the Sinkhole Circuit, however, disagreed and ments that subsection (d) should not Statute’s language to other Tennessee concluded that “[a]s the Arkansas legis - apply when the insured does not have insurance statutes supports the lature already has done with uninsured coverage. For example, subsection (d) Williamson County Circuit Court’s inter - and no-fault insurance, it can unam - uses the undefined terms “insurer” and pretation that notice of sinkhole insur - biguously require an insurer to do more “insured” when discussing obligations. 28 ance is not required under Tenn. Code than make [the insurance] available. … If a homeowners policyholder refused to Ann . § 56-7-130. For example, the unin - The legislature could specify that under - purchase an available sinkhole endorse - sured automobile liability statute (UIM), insured coverage automatically is part of ment, the company arguably is not an found at Tenn. Code Ann . § 56-7-1201, the policy unless specifically rejected by “insurer” within the meaning of the Sink - shows that the Tennessee General the policyholder.” 26 Other courts, hole Statute. Subsection (d)(2) of the Assembly knows how to require agents however, have imposed a commercial statute also appears to apply only when to discuss certain types of insurance reasonableness test to require insurance the claimant has sinkhole insurance. That when it desires to do so. First, unlike companies to provide notice of insur - provision states that “prior to denying a the Sinkhole Statute, the UIM statute ance under some circumstances. 27 claim, the insurer shall obtain a written includes mandatory language expressly While the plain language of the Sink - certification from an engineer, a profes - requiring that automobile insurers in hole Statute and its legislative history sional geologist, or other qualified indi - Tennessee “shall include uninsured show that sinkhole insurance is not a vidual stating that the cause of the claim motorist coverage” in the base policy. 21 mandatory form of coverage in is not sinkhole activity.” 29 A certification “However, any named insured may Tennessee, the questions regarding the confirming that the cause was not sink - reject in writing the uninsured motorist Sinkhole Statute’s notice requirements hole activity would be necessary only if coverage completely or select lower likely will continue to be litigated on a sinkholes were a covered peril. It would limits of the coverage but not less than case-by-case basis. To avoid costly litiga - be nonsensical to require such a certifica - the minimum coverage limits in § 55- tion on the subject, companies and tion when the policyholder does not have 12-107.” 22 Therefore, unlike the Sink - agents would be wise to provide notice the insurance. hole Statute, the UIM statute requires of the insurance and leave it to the indi - Subsection (d) of the statute unfortu - that the insured “reject in writing” UIM vidual policyholder’s discretion to nately does not include express language coverage before it is removed from the choose whether to purchase the that clearly addresses these questions. policy. The UIM statute results in the coverage. However, the Sinkhole Statute Companies have good arguments that insured either obtaining the UIM and the known cases interpreting it do the minimum standards should not coverage or discussing the option with not now impose that requirement. apply when the policyholder fails to the agent. The Sinkhole Statute does not purchase available sinkhole insurance, include any similar language. 2. Tenn. Code Ann. § 56-7-130(d) but policyholders can argue that the Although no Tennessee appellate establishes minimum standards for Sinkhole Statute’s lack of express limiting court has addressed the notice require - investigating sinkhole claims. terms shows that the minimum stan - ments under Tenn. Code Ann . § 56-7- a. The application of Subsection dards should apply to all sinkhole 130, some courts in other jurisdictions (d) presents confusing questions claims, regardless of coverage. Although have addressed similar statutes with for both insurance companies and arguments regarding the applicability of differing results. For example, in Edens v. policyholders. subsection (d) exist on both sides of the Shelter Mutual Ins. Co ., 23 the Eighth Tenn. Code Ann . § 56-7-130(d) establishes issue, until the matter is decided by an Circuit Court of Appeals addressed an minimum standards for investigating appellate court or through statutory Arkansas automobile insurance statute sinkhole claims in Tennessee. However, amendments, insurers are wise to follow
14 | TENNESSEE BAR JOURNAL OCTOBER 2013 this state.” 36 Significantly, the term “other qualified individual” is not defined. “[The legislations’ language] is interesting because, if passed, Based upon the terms of the Sinkhole they would significantly modify the current Sinkhole Statute Statute, companies would best protect themselves by hiring either a geologist or and possibly eliminate altogether the requirement to have geotechnical engineer with sinkhole inspection experience and knowledge of sinkhole insurance available in Tennessee.” the geology of Tennessee. Especially considering that the individual will need to provide the certification within a subsection (d)’s investigation provisions. sional geologist or other qualified indi - reasonable professional probability. Insurers will be in a better position vidual to conduct additional investiga - However, by using the undefined term of during litigation if they have met the tions regarding the cause of loss. While “other qualified individual,” the statute primary requirements of the statute, even the item A requirement will likely be leaves a wide gap that seems to allow any if they later argue that it does not apply easily met if the property has a sunken individual to conduct the inspection as because the policyholder failed to hole in the ground of any type, the item long as it was later proven that he or she purchase the available sinkhole coverage. B requirement is again lacking in clarity. was qualified to provide an expert The Sinkhole Statute does not define opinion under the McDaniel/Daubert 37 b. The step-by-step requirements “close proximity.” The house next door standards for the admissibility of expert of Subsection (d). having sinkhole damage likely would proof. This issue also will likely be clari - After receiving a claim for sinkhole loss, trigger additional investigations, but fied by future litigation. to comply with Tenn. Code Ann . § 56-7- would an unknown house four blocks Beyond the minimum investigation 130(d), the insurer must first physically away require it? How about a mile away? requirements imposed on insurers, inspect the insured’s premises. The Sink - The General Assembly unfortunately did subsection (d)(3) also includes an inter - hole Statute states that upon the receipt not answer these questions. Regardless, esting provision that requires a policy - of a claim for sinkhole loss, “[t]he if the initial inspection shows that the holder to pay up to $2,500 for sinkhole insurer shall make an inspection of the property has damage “to a structure that claims investigations that are filed in bad insured’s premises to determine if there is consistent with sinkhole activity” or faith. 38 Subsection (d)(3) states that if a has been physical damage to the struc - that the property is in “close proximity policyholder submits a sinkhole claim ture that might be the result of sinkhole to a structure” with verified sinkhole without good faith grounds and the activity.” 30 This first step in the sinkhole damage, the insurer is then required to above-described (d)(2) certification claims investigation process is widely obtain a “written certification from an determines that the cause of loss was not followed anyway. The vast majority of engineer, a professional geologist, or sinkhole activity, “the policyholder shall insurance claims already involve a phys - other qualified individual” stating that reimburse the insurer for fifty percent ical inspection of the premises. Notably, the cause of loss is not sinkhole activity (50 percent) of the cost of the analysis” there are no time requirements related to and “that the analysis conducted was of required by Tenn. Code Ann . § 56-7- this first step. 31 While significant delays sufficient scope to eliminate sinkhole 130(d)(2). The total potential liability to will likely give rise to claims for bad activity as the cause of damage within a the policyholder is limited to $2,500. faith pursuant to Tenn. Code Ann . § 56- reasonable professional probability.” 34 Recovery under section d(3) has 7-105, the Sinkhole Statute does not This written certification must be several hurdles. An insurer can claim provide an express time requirement to obtained before the claim is denied. this fee only if it first informs the policy - complete inspections. The Sinkhole Statute allows for the holder about the potential liability for During the inspection required by written certification described above to the investigation costs and then gives subsection d(1), the insurer needs to be provided by an engineer, a profes - the policyholder an opportunity to with - closely review subsection d(2) to deter - sional geologist, or an “other qualified draw the claim after receiving the mine (A) 32 whether the property has individual.” Engineers are defined as warning. 39 In reality, insurers’ best damage to a structure that is “consistent primarily individuals who are licensed chance at recovery of investigation costs with sinkhole activity”; and (B) whether under Tenn. Code Ann . § 62-2-401, et. under (d)(3) will occur if the required “the structure is located in close prox - seq. with a specialty in the geotechnical warning is provided expressly in the imity to a structure in which sinkhole engineering field. 35 A professional geolo - policy or the sinkhole coverage endorse - damage has been verified.” 33 The insurer gist is someone licensed under Tenn. ment’s terms. However, even if this needs to check for both A and B because Code Ann . § 62-36-101, et. seq., with a required warning is provided in compli - the existence of either triggers the bachelor’s degree in geology or earth ance with the statute, the insurer then requirement for an engineer, profes - science and “expertise in the geology of Continued on page 16
OCTOBER 2013 TENNESSEE BAR JOURNAL | 15 Sinkhole Statute continued from page 15 clear that such standards apply only holes will increase in Tennessee over the “[u]pon a receipt of a claim for a sink - next several years. As one engineer still must prove that the policyholder hole loss under a policy providing sink - recently told Channel 5 News in filed the claim in bad faith, which is not hole loss coverage .” 43 Additionally, Nashville, “‘Two years ago I only looked an easy task. instead of requiring an engineer to at about 12 all year …. I’ve looked at 13 possess “geotechnical expertise” as in the last two weeks.’” 44 3. Possible Legislative Efforts to defined in the current Sinkhole Statute, With Tennessee’s continued fast Reform Tenn. Code Ann. § 56-7-130? H.B. 1005 and S.B.880 would allow growth, new development, and its In early 2013, Sen. Jim Tracy and Rep. any licensed engineer with expertise in karst terrain, the discovery of sinkholes Roger Kane introduced companion bills the identification of sinkhole activity to and development around sinkholes is in the Senate (S.B. 880) and House of provide the required certification. The inevitable. With each new sinkhole Representatives (H.B. 1005) that would proposed bills also would alter the way that involves a home or a homeowners’ fundamentally rewrite the provisions of claims would be paid by implementing policy, practitioners can expect that Tenn. Code Ann . § 56-7-130. 40 However, a multiple-step process of approvals they will be called upon to review the soon after introduction, Rep. Kane took and agreements between the policy - Sinkhole Statute and the meaning of H.B. 1005 “Off-Notice,” which essen - holder, engineers and the insurance its terms. tially means that it is no longer being company that are not included in the pursued by the sponsor during that present statute. BRUCE A. McMULLEN, legislative year. 41 The Senate bill, S.B. Even though H.B. 1005 and S.B. 880 shareholder in the 880, also has not been actively pursued have not yet moved during the 108th Memphis office of Baker since being assigned to the Committee General Assembly, the bills indicate that Donelson, concentrates on Commerce and Labor in March 2013 the legislature is beginning to identify his practice in health care litigation, municipal law, and it does not have any cosponsors. and grapple with some of the ambigui - tort liability, commercial While neither H.B. 1005 nor S.B. 880 ties in Tenn. Code Ann . § 56-7-130 that litigation and class action defense. McMullen have actively moved within the General are being litigated throughout Middle also handles insurance coverage and bad faith Assembly, their language is interesting and Eastern Tennessee. Only time will actions, including the litigation of sinkhole because, if passed, they would signifi - tell whether these legislative efforts will claims. McMullen is a 1996 graduate of the University of Tennessee College of Law. cantly modify the current Sinkhole change the current statute. Statute and possibly eliminate altogether JOSHUA A. MULLEN is an the requirement to have sinkhole insur - Conclusion associate in the Nashville ance available in Tennessee. For The Sinkhole Statute provides many office of Baker Donelson example, to reduce the issues discussed interesting questions that will be where he focuses his in this article regarding a company’s answered only by additional litigation practice on commercial and business litigation, duty to make sinkhole insurance avail - or statutory amendments. Until that government contracts, able, the bill sponsors would simply occurs, policyholders should closely health care litigation, and representing insur - remove that requirement by stating that review their policies to ensure that they ance companies in coverage disputes, companies “ may make available have sinkhole coverage. Sinkhole insur - including the litigation of sinkhole claims. Prior coverage” instead of the current “ shall ance is not mandatory in Tennessee and to entering UT College of Law, Mullen served on the legislative staff of a United States make available coverage.” 42 Instead of some companies do not automatically Congressman in Washington, DC. choosing a more limited approach to provide that form of coverage. clarify that insurance companies are not Homeowners’ insurance companies Notes required to provide notice of the insur - also must closely review Tenn. Code Ann . ance, the sponsors chose to entirely § 56-7-130 upon the receipt of a sink - 1. Brad Hicks, “Love Chapel Elementary abolish the requirement to have sinkhole hole claim to ensure that they are School to Close,” Johnson City Press , Feb. 14, insurance as an available option. complying with the statute’s express 2013, http://www.johnsoncitypress.com/ The companion bills also would terms. Until the provisions of subsection article/104813#axzz2ThXKm6jq. significantly amend several of the (d) and their applicability are directly 2. Press Release, “Tenn. Dep’t Transp., Large claims investigation and payment addressed by the Tennessee Court of Sinkhole Closes I-24 in Grundy County” (May requirements under the current Sink - Appeals, insurers should expect that 18, 2010), http://news.tn.gov/node/5174. hole Statute. For example, to address they will be sued for any noncompliance 3. Don Jacobs, “Sinkhole closes one lane of the confusion about the application of with the statute. Lovell Road in West Knox County,” Knoxville subsection (d)’s investigation standards Beyond all else, insurers and policy - News Sentinel , May 9, 2013, when the customer does not have sink - holders need to know that sinkholes and www.knoxnews.com/news/2013/may/09/ hole insurance, the bills would make the coverage disputes related to sink - sinkhole-closes-one-lane-of-lovell-road-in-
16 | TENNESSEE BAR JOURNAL OCTOBER 2013 west/?partner=RSS; Kevin Young, “Sinkhole “earth sinking” included in a traditional earth 135, 334 (Ark. 1992) (Supreme Court of closes road near Franklin subdivision,” WSMV movement exclusion “clearly covers such Arkansas relying upon Arkansas General TV, April 19, 2013, www.wsmv.com/ phenomena as limestone sinkholes.”) (2-1 Assembly’s recent amendment requiring a story/21895696/sinkhole-closes-road-near- decision). written rejection “opt-out” of the insurance to franklin-subdivision; Kevin Young, “Sinkhole 14. Tenn. Code Ann . § 56-7-130(b). require agents to discuss options with the closes McGavock Pike near Nashville Airport,” 15. Tenn. Code Ann . § 56-7-130(c). insured, even though the applicable statute was WSMV TV, May 9, 2013, 16. S.B. 3002, 104th Tenn. Gen. Assembly, not amended at the time of the underlying www.wsmv.com/story/22080946/sinkhole- Senate Commerce Committee (April 18, 2006) events.). closes-mcgavock-pike-near-nashville-airport. (statement of Senator Herron); see also S.B. 28. Tenn. Code Ann . § 56-7-130(d). 4. Alexis Zotos, “Sinkhole Threatens West 3002, 104th Tenn. Gen. Assembly, Senate Floor 29. Id. at § 56-7-130(d)(2). Knoxville Home,” WATE Television, Mar. 4, (May 15, 2006) (Senator Herron stating that 30. Id. at § 56-7-130(d)(1). 2013, http://www.wate.com/story/21484710/ “[i]t does not say that it has to be a part of their 31. Id. sinkhole. basic policy.”). 32. The Sinkhole Statute does not include 5. Id. 17. S.B. 3002, 104th Tenn. Gen. Assembly, the (A) and (B) designations we have used in 6. Jessica Robertson & Randall Orndorff, Senate, Finance, Ways & Means (May 9, 2006) this article, but the authors have provided them “The Science of Sinkholes,” USGS Science (statement of Senator Herron stating that the for ease of reference regarding the discussions Features Blog (March 11, 2013, 5:48 a.m., bill “would require the insurance industry to of the two provisions. updated 11:16 a.m.), http://www.usgs.gov/ make available, to make available coverage for 33. Tenn. Code Ann . § 56-7-130(d)(2). blogs/features/usgs_top_story/the-science-of- sinkholes. It does not require them to include 34. Id. sinkholes/?from=textlink. it in every policy, they just have to make it 35. Id. at § 56-7-130(a)(1). 7. Martin S. Kohl, “Subsidence and Sink - available… . ”) 36. Id . at § 56-7-130(a)(2). holes in East Tennessee,” State of Tennessee 18. H.B. 2447, 104th Tenn. Gen. Assembly, 37. See McDaniel v. CSX Transp. , 955 S.W.2d Dep’t Env’t Conservation: Div. of Geology 4-5 Floor of House of Representatives (Apr. 27, 257 (Tenn. 1997) (discussing Tennessee’s (2001), http://www.tn.gov/environment/tdg/ 2006) (Bill sponsor Representative McDonald admissibility standards for expert proof); see maps/pdf/sinkhole.pdf. answering questions confirming that the statute also Daubert v. Merrell Dow Pharmaceuticals Inc., 8. Robertson & Orndorff, supra n. 6 (citing would “make available the option to purchase 509 U.S. 579 (1993) (discussing federal admis - USGS geological map available at http:// sinkhole coverage” and would require policy - sibility standards for expert proof). pubs.usgs.gov/of/2004/1352/data/USA_karst.pdf). holders to purchase sinkhole insurance “at an 38. Tenn. Code Ann . § 56-7-130(d)(3). 9. Kohl, supra n. 7, at 5-8. extra premium.”). 39. Id. 10. Brett D. Tobin and David J. Weary, 19. Judge Bivins is now a Court of Criminal 40. H.B. 1005, 108th Tenn. Gen. Assembly “Digital engineering aspects karst map: a GIS Appeals Judge. (2013) (as referred to Insurance and Banking version of Davies, W.E.”; Simpson, J.H.; 20. Burkhalter, et. al. v. Eric Loes, et. al., Case Subcommittee of Insurance and Banking Ohlmacher, G.C.; Kirk, W.S.; and Newton, E.G., No. 2010-184 (Williamson County Circuit Committee, March 20, 2013); S.B. 880, 108th 1984, “Engineering Aspects of Karst: U.S. Court Tenn. July 19, 2011). For purposes of Tenn. Gen. Assembly (2013) (as referred to Geological Survey, National Atlas of the United disclosure, the authors of this article repre - Committee on Commerce and Labor, Feb. 6, States,” scale 1:7,500,000, U.S. Geological sented the defendants in that action. 2013). Survey Open-File Report 2004-1352, 21. Tenn. Code Ann . § 56-7-1201(a) 41. See H.B. 1005, 108th Tenn. Gen. http://pubs.usgs.gov/of/2004/ (emphasis added). Assembly (2013) (Designated Off-Notice by 1352/data/USA_karst.pdf. 22. Tenn. Code Ann . § 56-7-1201(a)(2). Insurance and Banking Subcommittee of Insur - 11. 2006 Tenn. Pub. Acts Ch. 805 §§ 1-2, 23. 923 F.2d 79, 82 (8th Cir. 1991). ance and Banking Committee on Feb. 27, 2013 available at www.tn.gov/sos/ 24. Id. at 80. and March 20, 2013), available at http:// acts/104/pub/pc0805.pdf. For ease of refer - 25. Id. at 81. wapp.capitol.tn.gov/apps/BillInfo/Default.aspx? ence, the authors sometimes refer to Tenn. Code 26. Notably, after the Edens decision, the BillNumber=H.B.1005. Ann . § 56-7-130 as the “Sinkhole Statute.” Arkansas legislature did later amend the refer - 42. See H.B. 1005 & H.B. 880, supra n. 39. 12. Lee v. Nationwide , 1988 Tenn. App. enced statute. See Shelter Mutual Insurance Co. 43. Id. (emphasis added). LEXIS 264, at *8 (Tenn. Ct. App. April 29, v. Irwin, 831 S.W.2d 135, 334 (Ark. 1992). 44. Adam Ghassemi, “Tennessee Sinkholes 1988) (Tennessee Court of Appeals reviewing 27. See State Auto Ins. Companies v. Shannon, Create Never Ending Battle,” an earth movement exclusion and concluding 769 N.E.2d 228, 234 (Ind. Ct. App. 2002) Newschannel5.com, May 1, 2013, that “taken together or separately, the words, (Court of Appeals of Indiana interpreting www.newschannel5.com/story/22131816/ earth movement, mean any change of place, statute that included “shall make available” tennessee-sinkholes-create-never-ending-battle. position or posture of the soil.”). language, but also included a provision 13. See Burton v. State Farm Fire & Cas. Co., requiring written rejection of the insurance 533 F.2d 177, at 179 (5th Cir. 1976) (inter - similar to Tennessee’s UIM statute.); See also preting Alabama law) (holding that the words Shelter Mutual Insurance Co. v. Irvin, 831 S.W.2d
OCTOBER 2013 TENNESSEE BAR JOURNAL | 17 FEATURE STORY
The Picture of Health By Suzanne Craig Robertson
“If you need a good securities lawyer, you go to New York. If you want a good health lawyer, you go to Nashville.” Those words come from nationally known health law lawyer Phil In its 25th year, the TBA’s Pomerance, who has spoken on health law in more than 40 states and Health Law Section is one of serves on the Board of Directors of the American Health Lawyers Asso - the most highly respected ciation (AHLA). The sentiment is echoed by many others who have been health bars in the country. a part of the Tennessee Bar Association’s Health Law Forum or the Health Law Section, which has put it The TBA Health Law Section, cele - together for the past 25 years. brating its 25th year, has been that way The Health Law Primer “Tennessee’s health bar is kind of from its start, beginning when Nashville unique,” Pomerance, who has spoken at lawyer George Bishop realized there were and Forum are Oct. 2 - 4 10 of the Forums, says. “Because of the a lot of lawyers practicing health care law concentration of health care businesses in the state but no local group or educa - in Franklin. there … you get some of the most sophis - tional offerings for them. It was good ticated lawyers in the nation. At the same timing that in the summer of 1989 time it’s a congenial bar. It’s a friendly Bishop’s “best friend from law school,” organization with people who know each Paul Campbell III (who became TBA other, and who have often worked for or president in 1992), was a member of the with each other on projects. This is a TBA Board of Governors. Bishop says this group of people who know and respect helped get him on the board’s agenda that each other. That’s not true [everywhere] June with his idea to propose that the around the country.” association form a Health Law Section.
18 | TENNESSEE BAR JOURNAL OCTOBER 2013 The original executive committee of The first annual meeting of the section country,” he says. “It’s abundantly clear the section included David Lewis, took place in conjunction with the TBA that the talent level, knowledge and Howard Levine, John Voigt, Will Martin convention in North Carolina the expertise among Tennessee lawyers really and Max Shelton, with Bishop — an following June, where the section’s bylaws match what anyone has. The Health Law attorney at Waller since 1976 — leading were adopted and the name was changed Forum has made a difference in devel - the way. Memories conflict over just who from “Health Care Law” to “Health Law.” oping that expertise.” did what for the early seminars, but In addition to Bishop and Lewis, other Phil Pomerance backs this up, along many others were also involved in their members of the Section’s Executive with Teplitzky, a nationally renowned success, including Reggie Hill, Don Fish Committee for the second year were health care lawyer who has been at every and Dick Knight. Levine, Shelton, Frank Grace (who later Health Law Forum except the first one. But no one questions who was the served as chair) and Theresa Sigmon, who He has participated in similar meetings in catalyst. “George was the vision behind was elected secretary. Jeff Ockerman and many other states, but says, “The TBA this,” Lewis says of the section and subse - Howard Wall were also involved in early program is consistently more current and quent seminars. Lewis was the section’s section activities. substantive — and it almost always has second chair after Bishop served two The Forum started small, with dinners the largest attendance.” Teplitzky is a years. Lewis, who then served as chair and receptions at Voigt’s house in frequent writer and lecturer on health again in 2010, is vice president and asso - care fraud and abuse issues and is a ciate general counsel with LifePoint former president of the AHLA. Pomerance Hospitals in Nashville. Levine, Voigt and “This is a group of people is chief operating officer and general Shelton each also served as Section chair counsel of Best Practices Inpatient Care in subsequent years. who know and respect Ltd. in Illinois and speaks to prestigious groups that include the American Bar Starting Small, Thinking Big each other. That’s not true Association and the AHLA. “The health care lawyer community was [everywhere] around Teplitzky also talks about the “sophisti - smaller then,” Voigt recalls. “We all knew cation” of the health law bar in Tennessee. each other. It was so small we did a lot of the country.” For example, he says the questions raised transactions with each other — on the and discussions held by participants show same side and different sides. We were a detailed knowledge and understanding sharing evolving areas of the law, not only of the issues. with each other but with other lawyers Nashville. After that first year at the “This enables the planners to address who didn’t do it all the time.” Maxwell House, it moved to the audito - not only the surface of new develop - As the industry began to expand and rium at the Hospital Corporation of ments, but also to delve into discussions the number of lawyers in the area grew, America (HCA) headquarters. of any developing trends in the health Voigt says, it became impossible for “That was very gratifying,” says Voigt, care industry,” he says, adding that the everyone to keep track of all aspects of a partner with Sherrard & Roe in Tennessee program is “unsurpassed the law. Nashville. “The section has allowed us to around the country.” This was the perfect time, they real - discuss new developments in regulations, Early on, the section sought out ized, to establish the Health Law Forum. and to expose attendees to new areas to Teplitzky’s expertise on the Stark law “There were a number of national make them aware of emerging areas on (fraud and abuse), Memphis lawyer Walt organizations that put on programming,” their own.” Schuler says. “The statutes are essentially Lewis says. “A lot of our Tennessee practi - Presenters at the second seminar unchanged but they have given some tioners couldn’t afford to go to those included Sandy Teplitsky with Ober body to it in terms of interpretations, case programs every year. We felt like we had a Kaler in Baltimore; Terry Tottenham law and additional regulations,” he says. lot of expertise in the TBA that could put with Fulbright & Jaworski in Houston; “It’s on our program every year; that’s on those programs. The bar association and Virginia Hackney of Hunton & always an issue.” Schuler is associate was very supportive in allowing us to Williams in Richmond. Tennessee general counsel of the University of have a number of out-of-state attorneys lawyers who spoke at the seminar Tennessee Health Science Center and with experts.” included Claudia Dickerson, Almeta immediate past chair of the section. That first seminar, held at the Cooper, Lee Barfield, Frank Grace, C. J. Jackson lawyer Angela Youngberg is the Maxwell House Hotel in Nashville in Gideon and Gaye Karlson. current chair. September 1989, covered state regula - Lewis is clearly proud of the program - tory matters, a joint venture case study, ming and its presenters during the past Location, Location, Location Medicare, physician relations issues and 25 years. “Tennessee, in my opinion has Around 1989 when the idea for the quality of care issues. one of the best health care bars in the Continued on page 20
OCTOBER 2013 TENNESSEE BAR JOURNAL | 19 Health Law continued from page 19 about 13 years ago. The addition of the program year after year. It is a privilege to Primer was in direct response to the be asked to speak and an educational section was getting off the ground, health growth in the practice area, he says. With experience for our attendees that no other law was just beginning to evolve into its about 25 attendees the first year, the program offers.” own area of the law, and there was a lot of program has grown like its big brother, Lewis agrees. “As we have a more it in Tennessee, especially in Nashville, the Forum: last year about 60 came to the sophisticated audience, that’s meant an Chattanooga and Memphis. half-day intro and many also attend the increase in quality of presenters,” he says. “There was a heavy concentration of full program. “We try to stay on the cutting edge of new us in Nashville,” Voigt says. Lewis developments. The content is always points out that the proliferation of current, and we have less reliance on out- health care lawyers in the TBA Health Law Section Leadership of-state speakers as the legal talent in Nashville area, though, had a lot Bar Year Section Chair Tennessee has developed.” to do with where HCA is located. 1990-1991 George W. Bishop III As people who had worked at 1991-1992 David T. Lewis ‘Tremendous Pressure’ Nashville-based HCA left there 1992-1993 Frank Grace Jr. “I don’t even know where to start,” Voigt and formed new companies or 1993-1994 Max Shelton says when asked what the changes in his became a part of other health care 1994-1995 Howard Levine health law practice have been in the last management companies, he says, 1995-1996 Patricia Meador 25 years. “The federal government has they stayed nearby. 1996-1997 Richard Knight emerged as the major driving force in And then when the Health 1997-1998 Dale Amburn health care delivery. The practice of medi - Insurance Portability and Account - 1998-1999 Jay Hardcastle cine has become so much more of a busi - ability Act (HIPAA) of 1996 was 1999-2000 Debbie W. Larios ness in terms of regulations, than actually enacted, things really began to 2000-2001 Charles Key practicing medicine.” Government is transform. 2001-2002 Cindy Y. Reisz largely controlling and dictating the way “HIPAA increased the frequency 2002-2003 Kevin C. Campbell health care is financed and paid for these with which you face health law 2003-2004 Claire F. Miley days, he adds. “The amount of regulation issues when you’re doing transac - 2004-2005 Mary P. Parsons is significantly more than we had 25 years tions,” Schuler says. Before then, 2005-2006 John R. Voigt ago, because of the federal and state’s the private practice of health law 2006-2007 Frank Grace Jr. involvement.” was limited to a few law firms, he 2007-2008 Robert Q. Wilson This is an opinion shared by others. says, and most of them didn’t 2008-2009 Carol Anne Mutter “This industry is about the most advertise if they had lawyers who 2009-2010 William E. Young heavily regulated industry in the U.S.,” practiced in the areas of health law. 2010-2011 David T. Lewis Lewis says, pointing to complicated regu - “Then rapidly after ’96, within a 2011-2012 Kim H. Looney lations, reimbursements, fraud and abuse, few years, you saw many more 2012-2013 Walt Schuler and licensing. firms develop a health law practice. 2013 -2014 Angela Youngberg “There are more and more federal That’s continued to grow, where regulations to keep track of for folks oper - most law firms have some lawyers ating in any facet of the industry,” Bishop who say they practice in this area.” The Health Law Forum has also says. “There is tremendous pressure to Years later, in 2010, the Patient grown. Bishop notes that 103 lawyers keep up with new and changing regula - Protection and Affordable Care Act attended this first seminar in 1989. This tions in the health care industry. became the same kind of catalyst for year nearly 300 attendees are expected. “The general consensus is that the growth, with more regulations, changes The two programs fit together well. health care system and how we pay for — and uncertainty. Lewis says they will help health lawyer health care in this country is not working, “figure out what you need to be doing resulting in many efforts to reform the Filling a Need and what you need to avoid doing.” system, which was done with Obamacare. With more and more lawyers coming “This group’s energy has always Everyone is trying to figure out how it’s into the field to handle these new, amazed me,” TBA Director of CLE Mindy going to get implemented,” Bishop says, more complicated matters, another need Thomas-Fulks says. “It feels like a “The president has delayed certain aspects was realized. reunion every year for us and our atten - of the law and Congress may delay the “The section saw the need for a short - dees. The list of speakers and topics are implementation of other aspects, which ened half-day version for new health impressive and it takes a lot of work from makes it a very uncertain environment lawyers,” Schuler says of the Health Law the Section’s Executive Council and staff when one doesn’t know how or when it Primer, which was added to the lineup to meet the expectations of a fabulous Continued on page 27
20 | TENNESSEE BAR JOURNAL OCTOBER 2013 THE LAW LAUNCH PROJECT Last month, The Law Launch Project began following 15 members of the Class of 2014 as they wrap up law TE school and prepare to be lawyers. Let’s check in on what DA they’re saying. Read more at UP http://tbalawlaunch. wordpress.com I am both excited and relieved about the From left: Belmont University College of Law, Lincoln Memorial University Duncan School of Law, University of Memphis Cecil C. Humphreys School of Law, Nashville School of Law, University of Tennessee College of future. Law and Vanderbilt Law School.
Knowing what I am passionate about makes the future an exciting adventure instead of a daunting task.
“Why did you go to law school with all the changes going on in the EncorE carEEr: In my legal world?” What some are really asking, but being too polite to say previous life, I was a used car salesman. now, directly, is “You do realize that you picked a bad time to be a lawyer, I’m going to be a lawyer. don’t you?” Helping others, as I quickly realized, was my true Depending on whom you purpose for going to law school. I need to be in a ask, I’m either improving For me and many of my position where I can help others. Law can do that. my lot in life or taking peers in this legal market, a step backwards. Either third year of law school is your last My path through law school was not way, I am embarking on a chance to prove that you won’t just be exactly what I expected, but I am another suit further oversaturating the thrilled with where it leads. new chapter. Life is profession. messy and law school is “There are too many lawyers in the world, no exception. Imagine going from 0 to 60 mph in 2.5 but there’s always room for another good seconds. That’s what the first week of one.” That statement helped me realize law school feels like. that even though the naysayers of our profession preach its imminent demise, Maybe one day when the scars I have seen many instances there is, as in any profession, always have healed from law school, where Social Work and the room for another good one. I will enjoy reading again. law have comple - mented each other. I don’t question the reality which is that My courses in Social Work were the legal landscape is shifting … no, strike never detours; they have that, the legal landscape has shifted enriched my dream to be an and is about to flip on advocate. its side. I cannot wait for what the job market has to offer. I plan to open my own law practice.
OCTOBER 2013 TENNESSEE BAR JOURNAL | 21 FEATURE STORY
The Immortal Pleasant Miller: The State’s Greatest Antebellum Lawyer and the Father of Tennessee Pro Bono
By Russell Fowler Pleasant Miller (1773-1849), late in life
Andrew Jackson jumped to his feet from the midst of the spectators’ section in a crowded Tennessee courtroom, and in a booming voice shouted: “Bring me my pistols! I wish to kill Miller at once; for he has October is Pro Bono Month. just immortalized himself, and it is better he should die at once than Look at local opportunities at to live and do aught to destroy the glory he just acquired.” 1 www.tba.org/info/celebrate- Pleasant Miller had finished one of his breathtaking closing argu - pro-bono-month-2013 ments. Many concluded that his trial skills were the greatest in Tennessee, and lawyers packed court - ical battle and the joy of winning. These rooms to see him in action. Through three forms of recompense he received wit, wisdom and wiles, Miller, over and in abundance as he crisscrossed the over again, won the unwinnable. Judges length and breadth of Tennessee, from were bedazzled, adverse witnesses oblit - Knoxville to Jackson, from Greeneville erated, opposing counsel shattered, and to Brownsville, winning trial after trial, juries turned to putty in his hands. No both civil and criminal. All geographic cause seemed too hopeless as he took and subject areas were his domain. 2 on countless clients regardless of their ability to pay. By the height of his A Young Lawyer in Knoxville career, Miller had, in effect, become Born to humble origins the son of a Tennessee’s original pro bono program, Lynchburg, Virginia, tavern owner and a albeit staffed by this one energetic and Quaker mother in 1773, Pleasant eloquent attorney. His payment was Moorman Miller studied law under righting an injustice, the fun of orator - Judge Archibald Stuart of Staunton,
22 | TENNESSEE BAR JOURNAL OCTOBER 2013 Virginia, before relocating to Rogersville, and an ardent expansionist Tenn., in 1796, the year the state was as a member of a group of granted statehood. He moved to young congressmen known Knoxville in 1800 and was admitted to as the “War Hawks.” In the bar, 3 entering into partnership with furtherance of the War Thomas Emmerson. 4 Emmerson would Hawks’ agenda, he won serve as the first mayor of Knoxville and national attention with on the Tennessee Supreme Court of publication of the so-called Errors and Appeals. 5 “Miller Letter.” This letter Soon Miller became politically allied disclosed Madison’s confer - Thomas Emmerson with the powerful William Blount, ence with the Tennessee signer of the U.S. Constitution, friend of congressional delegation in George Washington, former governor of which the president the Southwest Territory, former U.S. discussed the need to senator, and wealthy land speculator. acquire West Florida and This alliance grew stronger when Miller control of the Mobile River, married Blount’s daughter, Mary Louisa, thus further fanning the in 1801. 6 It was during this period that flames of war and expan - he became close to Andrew Jackson, sion. 10 After one term in another young lawyer in the Blount Congress, Miller won elec - camp, a political organization continu - tion to the Tennessee ally battling the faction commanded by House of Representatives 11 William Blount the ever-popular Gov. John Sevier. where he achieved creation Accordingly, within the short span of of the Bank of the State of Tennessee. 12 a year’s time, the young Miller had risen He then resigned from the General like a meteor into the highest circles of Assembly in 1812 to fight in the First Tennessee politics, society and law. He Seminole War and re-enlisted in 1814 “When almost all hope was must have been impressive, indeed. to serve in the Creek Indian War. In And, because of his marriage, expanding these bloody campaigns, Miller secured lost, the poor knew they law practice and shrewd investments in the reputation of a fierce Indian fighter land, he also swiftly became a man of as a member of the East Tennessee could turn to Pleasant considerable wealth. Yet with all his Mounted Gunmen. 13 Miller to even the scales political and financial interests, the law Miller returned to the Tennessee remained his chief activity and source of House from 1817 to 1823 representing of justice.” growing fame. And this courtroom Knox County at the state capital in renown came so early, his success could Murfreesboro, where he was the leader not have been based on experience, but of the East Tennessee delegation and, on innate legal talent. For whatever going against the interests of his own reason, by most accounts, he very large landholding class, emerged as the simply became the best. champion of the poor, who were chiefly small-scale Congressman, War and the farmers trying to survive by General Assembly “squatting” on property In 1801, Miller was elected a commis - without title along the fron - sioner of Knoxville and was chosen tier. In titanic debates with chairman at its first meeting. 7 By 1809, his great rival Felix Grundy, despite his busy practice, he was elected Miller advocated “squatter to Congress representing central East rights,” defeated efforts to Tennessee with more than 77 percent of pass inflationary measures, the vote, 8 serving until 1811 as a Jeffer - won passage of laws stabi - sonian Republican 9 and a strong lizing Tennessee banks and James Madison supporter of incoming President James currency during the Depres - Madison. Once in Washington, Miller sion of 1819, and sponsored important became a spokesman for the Southwest Continued on page 24
OCTOBER 2013 TENNESSEE BAR JOURNAL | 23 Pleasant Miller continued from page 23 cies, and by 1829 the president deter - courtroom to speak with friends, mined that he had to be defeated in the without adjourning the proceedings. He judicial reforms congressional election to be held the even abandoned a trial while closing and ethical following year. Jackson turned to argument was being made to the jury so standards for Pleasant Miller as the only person able he could eat a watermelon on the court - office holders. 14 to rid him of the troublesome house lawn with the locals. One witness In 1822, he Congressman. Miller was persuaded to testified that during one of his absences, convinced the run 20 and, after meeting with political the issue of the admissibility of testi - legislature to leaders in Memphis, 21 he began mony arose. Since the judge had not nominate campaigning across West Tennessee in heard it, he ordered an attorney, who Andrew Jackson earnest in 1829. Crockett soon realized was a spectator, to rule on the issue. 24 for the presi - he was being overwhelmed by Miller’s Yet despite his judicial shortcomings, Felix Grundy dency. 15 oratorical skills, statesmanlike image, Haskell was popular with the people of and popularity with poor frontier fami - West Tennessee and strong feelings for A Move to Jackson lies appreciative of his advocacy of and against his removal were aroused. In 1823, Miller left the General Assembly squatters’ rights in the legislature. In Considering the evidence, however, to devote full-time to the law and the desperation, Crockett hastily patched Haskell’s cause seemed doomed. Never - management of his extensive landhold - together a bill to give 160 acres of theless, Pleasant Miller appeared as ings. The following year he purchased federal land to West Tennessee squat - counsel for the defense. He not only Blount Mansion in Knoxville, once the ters. 22 Nevertheless, what saved brought his immense trial and oratorical grand home of his father-in-law, but soon Crockett was unexpected division in skills, but also his knowledge of the sold it, 16 for as was reported in the Jackson’s ranks. Due to outrage in legislature and reputation as a judicial Jackson Gazett e, he had decided to move Tennessee over the perceived ill treat - reformer. And, as usual, he used his to West Tennessee. 17 It is not known why ment of fellow Tennessean Hugh piercing dry wit to undercut the serious - he moved west. It may have been to Lawson White, whom many felt should ness of the charges. When the great trial oversee his vast lands. Also, his political have been was over, Miller won the day with a tie faction was losing strength in East appointed to vote in the Senate: nine to nine. 25 And Tennessee yet gaining power in West the cabinet, and because of Miller’s spellbinding oratory, Tennessee. By the spring, traveling most concern with various legislators ended the day by of the way by boat on the Tennessee the influence of thanking Judge Haskell for his service. River, he arrived in Jackson with his large the men around family, opened a law office, and began Jackson, many First Chancellor of West construction of a great house named broke with Tennessee “Holly Hill” eight miles north of town. Jackson, One of Gov. William Carroll’s greatest Before long he was appearing in all including achievements was the adoption of the the courts of West Tennessee with a Pleasant Miller. Constitution of 1835. 26 Under its provi - David Crockett heavy caseload of land cases and crim - He dramatically sions, the General Assembly was inal matters, regularly representing the withdrew from the race against Crockett required to elect a new judiciary. poor pro bono. 18 In 1826, he severed and publically attacked the president’s Formerly, two chancellors served more ties with East Tennessee when he cabinet appointments. Crockett was re- “during good behavior,” which, barring sold his 40-acre tract in Knoxville called elected and Miller’s old friendship with misconduct, was a life appointment. “Barbara’s Hill” to the trustees of East Jackson was destroyed. 23 Terms of office would now be for eight Tennessee College for $600. Today, the years, with the legislature, in joint college is the University of Tennessee An Impeachment Trial in session, selecting state judges. Also, an and the imposing hill is the site of UT’s Nashville additional chancellorship was created main campus. 19 Pleasant Miller was not out of the press by an act approved on Dec. 22, 1835. for long. In December of 1829, the State Therefore, there would be one chan - Campaign Against Davy Crockett Senate convened in Nashville as a court cellor for each of the three Grand Divi - in West Tennessee of impeachment to hear charges against sions. However, the General Assembly Andrew Jackson was sent to the White Circuit Court Judge Joshua Haskell of made clear that “the Chancellors shall House in 1828. But all was not calm on West Tennessee. The allegations be Chancellors for the State;” thus, their the home front. Colorful Congressman centered on neglect of office. For “power and jurisdiction” were expressly David Crockett of West Tennessee broke example, it was alleged that during a statewide. 27 with Jackson over administration poli - number of trials, Judge Haskell left the Continued on page 25
24 | TENNESSEE BAR JOURNAL OCTOBER 2013 Pleasant Miller continued from page 24 entered into partisan politics as a tireless organizer of the new Whig Party. West Miller’s wife died in 1847 and was When the legislature met to elect 11 and East Tennessee would become Whig buried in Jackson. The same year, Miller Circuit Court judges and three Chancery strongholds with Miller serving as a crit - sold the great estate of Holly Hill and Court chancellors, one of the few ical link between party leaders in both retired to a farm six miles northeast of contested races was for the chancellor - sections. He would also take part in Trenton in Gibson County. 35 There, at ship of West heated newspaper debates, become a the age of 76, he died on April 26, 1849. Tennessee. The close advisor to Whig Gov. Newton He was interred at Trenton. 36 The bar of final vote tally Cannon, and stump the state at the age West Tennessee published the following was Andrew of 67 for Whig presidential nominee tribute: McCampbell, William Henry Harrison in 1840. 33 As a member of congress and a 18; Perry Even with all his travels for the member of the State Legislature, and Humphreys, 27; Whigs, Miller’s Jackson-based law prac - as chancellor of the Western Division, and Pleasant tice thrived and he found time to train his name stands intimately connected Miller, 54. 28 and mentor the young entering the with the legislative, judicial, and Hence Miller profession. Gov. Henry S. Foote of political history of Tennessee, demon - Andrew Jackson would be the Mississippi, who met him at Savannah, strating the confidence his fellow-citi - first chancellor Tenn., provides this description of Miller zens had in his capacity, ability, and to reside in West Tennessee, for both during this period: personal honor, proving that he chancellors who served West and He was then far advanced in life, served faithfully his day and genera - Middle Tennessee under the old Consti - but still actively concerned in the tion, and leaving a monument to his tution, William E. Anderson and business of his profession. I found memory of which his friends may William A. Cook, were Middle him to be a most civil and affable well be proud. During his long life, Tennesseans. Under the old Chancery gentleman, his capacity was always admitted, and statute, first Chancellor Anderson and easy and his integrity never doubted. 37 later Chancellor Cook would periodi - unaffected in cally cross the Tennessee River to hold converse, and Conclusion court at Jackson and Paris. 29 But even full of the Although Pleasant Miller’s gravesite in though there were now three Tennessee lively sallies Gibson County has been lost, he should chancellors, the chancellorship of West of good- not be forgotten. He was a major figure Tennessee was a difficult assignment. It natured of early Tennessee history, at the center required riding circuit and holding court raillery. He of many of the critical events and issues at Dresden, Trenton, Huntington, seemed to be of his day, and he influenced the state’s Lexington, Jackson, Brownsville, Paris, very much Newton Cannon political, economic and legal develop - Bolivar and Somerville. 30 respected by ment as it exploded westward, a west - Miller brought to Chancery his vast his brother attorneys, and to receive ward expansion he joined. He was experience as a lawyer and lawmaker. in his intercourse with them many unsurpassed as a legislator, debater and Furthermore, Chancery handled much tokens of deferential regard of a most political organizer, and was instru - land litigation, and Miller was a master flattering nature. 34 Continued on page 26 of that subject. As for his judicial demeanor, it was said that he was “a most civil and affable gentlemen, easy and unaffected in conversation, and a great lover of wit. He is consequently a general favorite with other members of the bar, as well as with the public.” 31 Whig Party Organizer and Retirement at Trenton Miller did not serve on the Chancery bench for long. In March of 1937, he resigned as chancellor of West Tennessee, 32 returned to a booming private practice, and enthusiastically
OCTOBER 2013 TENNESSEE BAR JOURNAL | 25 Pleasant Miller continued from page 25 Notes Dictionary of the Tennessee General Assembly 520 1. Henry S. Foote, The Bench and Bar of the (1975); Will T. Hale and Dixon L. Merritt, 3 A mental in making Tennessee a two-party South and Southwest 170 (1870). History of Tennessee and Tennesseans 726 (1913). state and securing the rights of pioneer 2. See Generally Russell Fowler, “Pleasant 8. Robert M. McBride, ed., 1 Biographical families on the frontier. Throughout his M. Miller, 1773-1849: The Last of the Titans of Dictionary of the Tennessee General Assembly 520 long career, he had the courage to say Tennessee’s Founding Age” in the West (1975); Will T. Hale and Dixon L. Merritt, 3 A no to power. Tennessee Historical History of Tennessee and Tennesseans 726 (1913). Furthermore, Miller was peerless at Society Papers XLIX 9. Biographical Dictionary of the United States his profession, a true lawyer’s lawyer. He 23-45 (1995). Congress 1774-1989 1504 (1989). loved the practice of law and the great 3. See Will T. 10. See Irving Brant, James Madison: The good it could accomplish, and treated Hale and Dixon L. President 174 (1956); Russell Fowler, “Pleasant all his cases, paid and pro bono, like a Merritt, 3 A History M. Miller, 1773-1849: The Last of the Titans of joyous holy cause. He believed that of Tennessee and Tennessee’s Founding Age” in the West being a lawyer is not only a privilege Tennesseans 726 Tennessee Historical Society Papers XLIX 27 but an obligation, an obligation of (1913); Joshua W. (1995). keeping the courthouse doors open to Caldwell, Sketches 11. Robert M. McBride, ed., 1 Biographical all. Wherever he lived in Tennessee, of the Bench and Bar Henry S. Foote Dictionary of the Tennessee General Assembly 519 when almost all hope was lost, the poor of Tennessee 63 (1975). knew they could turn to Pleasant Miller (1898); Mary V. Rothrock, ed. The French 12. Eric Russell Lacy, Vanquished Volunteers, to even the scales of justice. Although Broad-Holston Country 456 (1946); Robert M. East Tennessee Sectionalism from Statehood to probably not the first Tennessee lawyer McBride, ed. 1 Biographical Dictionary of the Succession 47-8 (1965); Russell Fowler, to volunteer to take cases without Tennessee General Assembly, 520 (1975); Russell “Pleasant M. Miller, 1773-1849: The Last of the payment, he was the first do so on such Fowler, “Pleasant M. Miller, 1773-1849: The Titans of Tennessee’s Founding Age” in the West a regular and wide-scale basis. Hence he Last of the Titans of Tennessee’s Founding Age” Tennessee Historical Society Papers XLIX 29 can rightly be called “the Father of in the West Tennessee Historical Society Papers (1995). Tennessee Pro Bono.” Yet of all his XLIX 23-45 (1995). 13. Robert M. McBride, ed., 1 Biographical achievements, perhaps the greatest was 4. Mary V. Rothrock, ed. T he French Broad- Dictionary of the Tennessee General Assembly 520 helping to lay the foundation of service, Holston Country 457 (1946). (1975); Russell Fowler, “Pleasant M. Miller, civility and integrity of Tennessee’s bar 5. Id . at 423-14. 1773-1849: The Last of the Titans of in its infancy, an immortal legacy. 6. See Russell Fowler, “Pleasant M. Miller, Tennessee’s Founding Age” in the West 1773-1849: The Last of the Titans of Tennessee Historical Society Papers XLIX 29-30 Tennessee’s Founding Age” in the West (1995). RUSSELL FOWLER is asso - Tennessee Historical Society Papers XLIX 24-5 14. Id. at 30-6. ciate director of Legal Aid (1995); Will T. Hale and Dixon L. Merritt, 3 A 15. Marguis James, The Life of Andrew of East Tennessee (LAET) History of Tennessee and Tennesseans 726 (1913); Jackson 352 (1938). and since 1999 has been Robert M. McBride, ed., 1 Biographical 16. Stanley J. Folmsbee and Susan Hill adjunct professor of polit - Dictionary of the Tennessee General Assembly, 520 Dillion, “The Blunt Mansion, Tennessee’s Terri - ical science at the Univer - sity of Tennessee at (1975); Robert E. Corlew, Tennessee, A Short torial Capitol” in Tennessee Historical Quarterly Chattanooga. He served as the law clerk to History 160 (2d ed. 1981). XXII, 114 (1963). Chancellor C. Neal Small in Memphis and 7. Robert M. McBride, ed., 1 Biographical 17. Emma Inman William, Historic Madison earned his law degree at the University of Memphis in 1987. Fowler has more than 40 publications on law and legal history, including MORGAN JOHNSON CARPENTER & CO. works for the American Bar Association, the Smithsonian Institution, The New England Law A PROFESSIONAL CORPORATION Review, The Journal of Supreme Court History, MJC The Tennessee Encyclopedia of History and Forensic Accountants & Consultants Culture , and the Tennessee Bar Journal. He Professionals in Loss and Value Measurement dedicates this article to the memory of Chan - cellor Neal Small, who he says demonstrated the same great joy in the law as Pleasant Miller. Mark N. Henry, CPA/CFF 555 Marriott Drive, Suite 800, Nashville, TN 37214 Phone: 615-231-6460 • Fax 615-231-6463 [email protected]
26 | TENNESSEE BAR JOURNAL OCTOBER 2013 64 (1946). The Picture of Health continued from page 20 18. Id. at 64 19. Robert E. Corlew, I40 (2d ed. 1981). 20. Stanley J. Folmsbee, “David Crockett will all play out.” there will be more change and uncer - and West Tennessee” in The West Tennessee The changes also have caused a signifi - tainty — is that the TBA Health Law Historical Society Papers XXVII, 14 (1974). cant increase in the level of mergers and Section will be available to guide lawyers 21. James Roper, “Marcus Winchester and acquisitions, Bishop says of the area through it. the Earliest Years of Memphis” in Tennessee where he works most. “The combination Through networking and resulting Historical Quarterly XXI 350 (1963). of the uncertainty, with the knowledge friendships fostered by being a section 22. J. M. Keating, 1 History of the City of that however this works out there will be member, health lawyers in Tennessee Memphis 175-76 (1988). less money coming from federal govern - know they have support. “You get to 23. Stanley J. Folmsbee, et al., 1 History of ment and private insurers, has put pres - know the other attorneys who practice Tennessee 312-13 (1960); Russell Fowler, sure on hospitals to make strategic moves health care law, and you deal with them “Pleasant M. Miller, 1773-1849: The Last of the to affiliate, joint venture or sell . That is in work,” Schuler says. “You want to Titans of Tennessee’s Founding Age” in the West continuing and I think will go on over the bounce questions or ideas off of Tennessee Historical Society Papers XLIX 40-1 next few years at least,” he says. [colleagues who practice in this area], (1995). “The number of issues that have to be because they are the only ones who know 24. Will T. Hale and Dixon L. Merritt, 2 A dealt with in any transaction has dramati - about it.” History of Tennessee and Tennesseans 389-90 cally increased,” Bishop says. “In my prac - The success of the Section and the (1913); Samuel Cole Williams, Beginning of tice if you were buying or selling a Forum is a model for other groups, and West Tennessee 221-22 (1930). hospital in the mid-’80s, you might have Schuler gives credit to early leadership. 25. See Samuel Cole Williams, Beginning of a purchase agreement that was 25 or 30 “You had a committed group of people — West Tennessee 222 (1930). pages long. Today it’s 75 pages because of primarily in the Nashville area — who 26. Robert E. Corlew, Tennessee, A Short all the regulatory issues that have to be were able to enlist others,” he says. History 164 (2d ed. 1981). addressed.” Records from 25 years ago are not 27. 1835 Tenn. Pub. Acts, Ch. IV. A visible change in the industry over clear, but since 2000 membership in the 28. Herbert Weaver, ed. 3 Correspondence of the last quarter century, directly related to section has more than doubled, from 245 James K. Polk 469 (1975). the amount of regulation, is that there are members to about 580 today. TBA 29. Samuel Cole Williams, Beginning of West fewer smaller groups, Voigt says. Programs Administrator Lynn Pointer has Tennessee 218 (1930). “[Doctors today] are significantly less worked with Health Law at least that long 30. 1835 Tenn. Pub. Acts, Ch. IV. entrepreneurs than their fathers or grand - and keeps a close eye on the numbers. 31. Editors of History of Tennessee 385 fathers. Fewer want to set up their own “I would like to think the Forum is a (1887). practice as opposed to working for an big reason why section membership has 32. Robert H. White, 2 Messages of the established group or hospital.” grown so much in the past decade,” Governors of Tennessee, 1796-1821 177-78 Bishop adds that areas to watch are she says. (1952). privacy, an increased interest of the govern - “I feel grateful to have been involved in 33. See Herbert Weaver, ed. 3 Correspon - ment in pursuing false claims under the getting it started,” Bishop says. “One of dence of James K. Polk 310, 579, 617 (1975). Medicare program, and antitrust issues the more important things I’ve done in 34. Henry S. Foote, The Bench and Bar of the that arise from consolidation. my law practice is to help organize the South and Southwest 169 (1870). section. It’s wonderful and pleasing to see 35. Emma Inman William, Historic Madison How the Section Helps how it’s grown and how younger practi - 64 (1946). Practitioners tioners continue to take it to greater 36. Robert M. McBride, ed., 1 Biographical With all the change, practitioners are hard heights. It is a significant and valuable Dictionary of the Tennessee General Assembly 520 pressed to come up with facets of the part of the bar association and has been a (1975); Russell Fowler, “Pleasant M. Miller, industry that have not changed in the last greater resource to health law practic - 1773-1849: The Last of the Titans of 25 years. But there are some, including tioners than I ever dreamed.” Tennessee’s Founding Age” in the West issues relating to licensure of health care Tennessee Historical Society Papers XLIX 44 professionals and providers at the state SUZANNE CRAIG ROBERTSON is editor of the (1995). level, as well as the quality of the services Tennessee Bar Journal. TBA staff members 37. Obituary, 29 Tenn. (10 Humph) 369-70 provided. Kaisha Bond, Lynn Pointer and Mindy Thomas- (1850). One of the few aspects of this practice Fulks contributed to this story. area to be counted on — besides that
OCTOBER 2013 TENNESSEE BAR JOURNAL | 27 SENIOR MOMENTS BY MONICA J. FRANKLIN AND GABRIELLE BLAKE Two Crucial Words for Your Medicare Vocabulary: ‘Observation’ vs. ‘Admission’ In general terms, Medicare is health insurance subsidized by the federal government. It is a great program, with excellent benefits at a low cost. As a legal advocate and as a family member, it is helpful to build your Medicare vocabulary as the benefits and rules change
within the program, sometimes further skilled care before he may gain profoundly affecting the way care is deliv - Medicare approval for payment of his “Classification of a ered. A hot issue for Medicare benefici - rehabilitation. Fortunately, Mr. Smith has aries is whether a doctor charts a original Medicare and a medi-gap or Medicare beneficiary’s Medicare beneficiary’s hospitalization Medicare supplemental insurance policy. hospitalization as an status as “observation” or “admission.” This rehabilitation, which may include Those magic words make the difference as therapy (physical, occupational, speech) ‘admission’ is crucial to whether your client will incur addi - or other skilled care, is crucial to Mr. tional costs for the hospitalization and Smith achieving his optimal level of to her pocketbook whether your client will receive the functioning. Medicare benefit to pay for skilled care in Unfortunately, Debbie, the discharge and health.” a rehabilitation facility. planner, advises that Mr. Smith is not Imagine this hypothetical: Mr. Smith eligible for Medicare payment of skilled suffers a fall in the bath. He is 86, has care in a rehabilitation facility because he suffered multiple past falls and has was never “admitted” to the hospital. dementia. The ambulance races Mr. Smith Instead his chart is marked that he was in to the local hospital. The emergency room the hospital for “observation.” Mr. Smith’s doctor says that a bone is broken in his representative argues that there must be arm, and he will be moved to a hospital some mistake. He has been on the room for a few days. hospital floor for three midnights. Debbie Three days after Mr. Smith’s admission, responds that “according to his chart, Mr. the family representative meets with the Smith was on the hospital floor for obser - hospital’s discharge planner, “Debbie.” vation. It is different from being admitted, Debbie’s job is to find a placement for Mr. and therefore Medicare will not pay for Smith that will safely meet his needs. Mr. therapy and further treatment at a skilled Smith’s family representative has already nursing facility.” Mr. Smith must return made a plan knowing that Mr. Smith will home and is only eligible to receive home need rehabilitation after three days in the health services which are provided three hospital, especially considering his times a week. dependence upon a walker, now compro - This scenario has become more mised by his broken arm, and of course common in recent years as Medicare has his worsening dementia. The family has become more stringent with hospitals already picked out their top three choices over admission criteria, especially for of facilities offering skilled rehabilitation. shorter lengths of stay. The American The family is aware that Mr. Smith College of Emergency Physicians must be in the hospital for three explains: midnights and have a doctor’s order for With short inpatient hospital stays
28 | TENNESSEE BAR JOURNAL OCTOBER 2013 (less than the average LOS [length of therapy seen in skilled nursing facilities. was issued Aug. 2, 2013. 5 According to stay]) Medicare is concerned about Skilled care is offered on a separate the expert analysis of Medicare Advocacy overpayment and appropriateness of hospital floor or inside a nursing home, attorneys, these regulations do not the admission. As a result, Medicare which has the added benefit of providing provide a true “fix” to the issue of patients and a state’s Quality Improvement day-to-day nursing care while undergoing being classified as “observation” versus Organization (QIO) monitor hospital therapy. If a client does not receive the “admission” status. However, a change in discharge data and specifically target intensive skilled care provided in a reha - the law would provide the appropriate solu - short hospital stays. bilitation facility, then he is at a greater tion to protect our clients. If a hospital is found to have a high risk of needing a higher level of care, such frequency of short inpatient hospital as assisted living or even nursing home Legislation on the Horizon stays Medicare will investigate and if care. For example, if a client does not H.R.1179 and S. 569 — Improving inappropriate admissions are found the receive necessary skilled care, he will be Access to Medicare Coverage Act of 2013 6 sanctions can be severe. As a result, more prone to falls. Falls are one of the was introduced in the House and Senate hospital health information manage - highest risk factors for causing a client to on March 14, 2013. The proposed legisla - ment (HIM) and utilization manage - need long-term nursing home care. tion amends title XVIII (Medicare) of the ment (UM) staff closely monitor the The Center for Medicare Advocacy Social Security Act to deem an individual medical necessity of inpatient hospital warns that the level of care can change receiving outpatient observation services admissions and short inpatient without notice or can be retroactively in a hospital to be an inpatient with hospital stays. Their efforts can put reversed: respect to satisfying the three-day inpa - pressure on emergency department As a consequence of the classifica - tient hospital requirement in order to physicians to make sure that tion of a hospital stay as outpatient entitle the individual to Medicare each inpatient admission from the observation (or of the reclassification coverage of any post-hospital extended [emergency departments] is medically of a hospital stay from inpatient care, care services in a skilled nursing facility. necessary and will pass fiscal interme - covered by Medicare Part A, to outpa - As an advocate for Medicare benefici - diary or Medicare Area Contractor tient care, covered by Medicare Part B), aries, please contact your congressional (MAC) scrutiny. beneficiaries are charged for various representative and ask him or her to In some cases the use of observation services they received in the acute care support this legislation. Urge your clients status might be an alternative to an hospital, including their prescription and their families to do the same. immediate inpatient admission. 1 medications. They are also charged for MedicareAdvocacy.org provides talking their entire subsequent [skilled nursing points when a person calls a representa - Why does ‘observation’ or facility] stay, having never satisfied the tive or senator. 7 ‘admission’ make a difference statutory three-day hospital stay to your client? requirement. 2 Empower your client’s family to First, if the client’s hospitalization is clas - advocate for an ‘admission.’ sified as “observation,” the client will Protecting our clients from this 1. Families should know the differ - incur more out-of-pocket costs for the unfair practice requires a change ences in “admission” and “observation” hospitalization than if he had been in the law. 3 status. Medicare provides a helpful “admitted.” This is true because an On Nov. 3, 2011, the Center for Medicare pamphlet detailing the differences. 8 “admission” is covered under Medicare Advocacy, and co-counsel National Senior 2. When the client visits the emer - Part A, which covers inpatient admis - Citizens Law Center, filed a nationwide gency room, advise the family to give sions; however, “observation” status is class action to challenge this illegal policy the doctor the full clinical picture. It covered under Part B, which treats the and practice. Bagnall v. Sebelius (No. 3:11- may help to have the primary care hospitalization as an outpatient service. cv-01703, D. Conn) states that the use of physician consult with the ER doctor Second, Medicare will only pay for observation status violates the Medicare and/or fax recent records. If family is skilled nursing care after a person has Act, the Freedom of Information Act, the unable to be with the client, they been “admitted” to the hospital for three Administrative Procedure Act, and the should phone the ER department and midnights. If faced with a decision to pay Due Process Clause of the Fifth Amend - request to give information to the out of pocket for skilled care (to the tune ment to the Constitution. As of April doctor or nurse. of thousands of dollars) or to forego treat - 2013, two motions were pending — a 3. If treatment goes beyond the ER, ment, many choose the latter option motion for class certification and motion families should ask what level of care placing them at a higher risk for re-hospi - to dismiss. Oral argument was scheduled determination has been made. Ask talization. They are still eligible for home for May 2013. 4 this question daily to make sure the health, but home health care does not The CMS, “Final FY 2014 Hospital status has not changed. If the family provide the intensity and frequency of Inpatient Prospective Payment System,” Continued on page 30
OCTOBER 2013 TENNESSEE BAR JOURNAL | 29 Senior Moments continued from page 29 As our health care system struggles to Notes provide quality patient care, manage 1. http://www.acep.org/Clinical---Practice- does not agree with the level of care, burgeoning costs, and adhere to countless Management/Utilization-Review-FAQ/. advise them to try to have it changed changing and evolving rules and regula - 2. http://www.medicareadvocacy.org/ by speaking with the doctor, utiliza - tions, it takes knowledge, gumption, and medicare-info/observation-status/#definition. tion review nurse and case manager. persistence to advocate for the best care 3. The information in this section is either Families should also ask the primary for clients. Please remember to contact quoted or paraphrased based on the information care doctor to consult with the your Senator and Representative and provided at www.medicareadocacy.org. hospital doctor. express your support for S. 569 and 4. .http://www.medicareadvocacy.org/ 4. Families should begin working H.R.1179 - Improving Access to Medicare bagnall-v-sebelius-no-11-1703-d-conn-filed- with the discharge planner as early as Coverage Act of 2013. november-3-2011. The decision is pending. possible. Many discharge planners do Watch MedicareAdvocacy.org for updates. not work weekends, but one can still 5. To see the press release with links to fact ask to leave a voicemail requesting a MONICA J. FRANKLIN is a certified elder law sheets and other information, go to http:// call as soon as she returns to the specialist. She has assembled a multi-discipli - www.cms.gov/Newsroom/MediaReleaseData - hospital. If ineligible for Medicare nary team to serve east Tennessee’s elderly and base/Press-Releases/2013-Press-Releases- payment of skilled nursing care, make disabled clients through Life Care Planning, Items/2013-08-02.html. Estate Planning and Conservatorships. Contact sure that the doctor has written an 6. http://www.govtrack.us/congress/bills/ her at [email protected] or order for home health and the referral www.MonicaFranklin.com. 113/hr1179/text. process is begun. 7. http://org.salsalabs.com/o/777/p/dia/ 5. For more information on GABRIELLE BLAKE is a licensed clinical social action/public/?action_KEY=8514/. appeals, read the helpful Self Help worker with extensive experience in geriatrics. 8. http://www.medicare.gov/Pubs/pdf/ Packet for Medicare “Observation She has served as an elder care coordinator with 11435.pdf. the Elder Law Practice of Monica Franklin since Status” published by the Center for 9. http://www.medicareadvocacy.org/ 2010. Email her at [email protected] Medicare Advocacy Inc. 9 self-help-packet-for-medicare-observation- status/.
30 | TENNESSEE BAR JOURNAL OCTOBER 2013 PAINE ON PROCEDURE BY DONALD F. PAINE Shalt Thou Love Thy Neighbor’s Trees? What procedural remedies are available to a plaintiff homeowner if a defendant neighbor owns trees with encroaching limbs and roots? That question arose in Lane v. W.J. Curry & Sons , 92 S.W.3d 355 (Tenn. 2002). Gloria Beatrice Lane lived from birth in a modest house at 2144 Goff Avenue in Memphis. A larger house next door had three healthy
oak trees beside the boundary line. But clogged the plaintiff’s sewer line, overhanging limbs occasionally broke causing severe plumbing problems. “The Supreme Court off. And protruding roots crept beneath The plaintiff has tried to chop the the Lane abode. I have the full transcript, encroaching roots over the years, but changed the law.” but Justice Drowota’s opinion contains they keep growing back and causing the following summary of evidence. more plumbing problems. The plain - In 1997, a large limb from one of tiff has not been able to use her the defendant’s trees located between toilet, bathtub, or sink in two years the parties’ houses broke off and fell because of the clogged sewer pipes. through the plaintiff’s roof, attic, and She must go to a neighbor’s house to kitchen ceiling, causing rainwater to use the restroom. leak into the interior of her home. The water ruined the plaintiff’s ceilings, When the case was tried without jury floor, and the stove in her kitchen. in Shelby Circuit on May 9 and 10, The plaintiff is not physically able to 2000, the only remedy available was cut the limbs back that hang over her self-help. Granberry v. Jones , 216 S.W.2d house, and she cannot afford to hire 721 (Tenn. 1949). Consequently the someone else trial judge and the Court of Appeals to do it. Nor held for the defendant. can she afford The Supreme Court changed the law. to repair the The oak trees were held to create a damage to the private nuisance. A plaintiff now has exterior and three remedies: interior of her 1. Self-help home, 2. Injunction including the 3. Damages for restoring property, hole in her inconvenience, emotional distress, and roof. injury to the use and enjoyment of the In addition property. to the harm The court reversed and remanded. I’m caused by the advised that the case was not retried. overhanging branches, roots from the DONALD F. PAINE is a past president of the defendant’s Tennessee Bar Association and is of counsel to Plaintiff’s house on right; defendant’s on left. trees have the Knoxville firm of Paine, Tarwater, and Bickers infiltrated and LLP.
OCTOBER 2013 TENNESSEE BAR JOURNAL | 31 THE LAW AT WORK BY EDWARD G. PHILLIPS AND BRANDON L. MORROW Retaliation Claims: More Difficult Standards Under ‘Nassar’ and ‘Ferguson’ Establishing a prima facie case of retaliation just became a lot more difficult because of a couple of recent decisions, one from the United States Supreme Court and one from the Tennessee Court of Appeals. As a refresher, to establish a claim of retaliation under the Civil Rights
Act of 1964 (Title VII) and the Tennessee of his supervisors, Dr. Levine, was Human Rights Act (THRA), a plaintiff biased against him because he was “These two decisions must prove that: (1) the plaintiff engaged Muslim and had a Middle Eastern in a protected activity; (2) the exercise of heritage. Plaintiff repeatedly complained may not lessen the number the plaintiff’s protected rights was known to Dr. Levine’s direct supervisor, Dr. Fitz, of claims filed, but they to the defendant; (3) the defendant about Dr. Levine’s alleged discrimination thereafter took an adverse job action and harassment. certainly have enabled against the plaintiff; and (4) there was a After making arrangements to work causal connection between the protected full-time for the hospital, plaintiff employers to get more of activity and the adverse job action. 1 resigned his faculty position, stating that These recent decisions impact the the reason for his departure was harass - them dismissed knowledge and causation requirements ment by Dr. Levine because of her bias on summary judgment.” of retaliation claims, ultimately creating a against him. Dr. Levine was admittedly more onerous burden for plaintiffs. quite upset by the allegations. Once In University of Texas Southwestern Dr. Fitz learned the hospital had offered Medical Center v. Nassar , the Supreme Dr. Nassar the position, he protested the Court clarified that Title VII retaliation job offer, asserting that the hospital’s claims must be proved according to affiliation agreement with the university traditional principles of but-for causa - required that all staff physicians also be tion, not the less burdensome moti - members of the university’s faculty. After vating factor test. 2 In Ferguson v. Middle Dr. Fitz’s protest, the hospital withdrew Tennessee State University , the Tennessee plaintiff’s job offer. Court of Appeals held that a retaliation Plaintiff then filed suit alleging, plaintiff is required to show that the among other things, that Dr. Fitz’s efforts decisionmaker, the individual who took to prevent the hospital from hiring him the adverse job action against the plain - were in retaliation for complaining tiff, had knowledge of the plaintiff’s about Levine’s harassment. The jury protected activity at the time of adverse found for the plaintiff on the retaliation job action — it noted that general claim and awarded him $400,000 in corporate knowledge is not sufficient to back-pay and $3 million in compensa - state a prima facie case of retaliation. 3 tory damages. 4 On appeal, the Fifth In Nassar , the plaintiff, who was of Circuit affirmed based on the reasoning Middle Eastern descent, worked in the that retaliation claims require only a HIV/AIDS clinic at Parkland Hospital showing that retaliation was a moti - and was a faculty member at the Univer - vating factor for the adverse employ - sity of Texas Southwestern Medical ment action. Center. Plaintiff came to believe that one In a 5-4 opinion, the Supreme Court
32 | TENNESSEE BAR JOURNAL OCTOBER 2013 held employee retaliation claims filed him bring [the lawsuit in the first lawsuit is required to show that the under Title VII must be proved place].” 7 In April 2004, plaintiff filed his decisionmaker, the individual who according to traditional principles of second lawsuit, alleging that his super - took the adverse job action against but-for causation, not the lessened visor retaliated against him for the the plaintiff, had knowledge of the “motivating factor” test stated in the 42 EEOC complaint and related lawsuit by plaintiff’s protected activity at the U.S.C. § 2000e-2(m) for status-based giving him assignments that required time of the adverse job action. 8 discrimination cases. Justice Kennedy him to work outside his medical restric - explained that the “motivating factor” tions. The discrimination and retaliation Applying this more stringent knowl - provision only applies to claims of lawsuits were consolidated, and the jury edge standard, the court concluded that discrimination — not retaliation. plaintiff had failed to introduce any In arriving at the but-for causation material evidence that his supervisor standard, the court held that retaliation had knowledge of his protected activity claims require a showing that an “The court disagreed with at the time of the alleged adverse job employer acted “because” of the action. Indeed, plaintiff testified that protected conduct. In Gross v. FBL Finan - the plaintiff and clarified the upon the advice of counsel and instruc - cial Services Inc., the court had previ - somewhat gray area of tions from MTSU’s human resources ously interpreted the similar phrase department, he did not discuss his “because of … age” in the Age Discrimi - employer knowledge of EEOC charge or his lawsuit with his nation in Employment Act of 1967 supervisor or anyone else. Furthermore, (ADEA) to require but-for causation. 5 protected activity.” the supervisor’s testimony did not reveal Thus, the court held, “the proper when she had learned of plaintiff’s conclusion [in Nassar ], as in Gross , is protected activity. Because plaintiff had that Title VII retaliation claims require not satisfied the knowledge element of proof that the desire to retaliate was the found in favor of MTSU on the discrimi - his retaliation claim, the court reversed but-for cause of the challenged employ - nation claim. However, the jury found Continued on page 34 ment action.” 6 in favor of the plaintiff on the retaliation While the Supreme Court dealt with claim, and awarded $3 million in the causation element, the Tennessee compensatory damages. Court of Appeals, Western Section, grap - On appeal, the court focused its pled with the employer knowledge inquiry on the knowledge element of the requirement. In Ferguson , the plaintiff, retaliation claim. It was undisputed that who was of Japanese American ancestry, some members of the MTSU administra - worked in the maintenance department tion knew of the plaintiff’s protected at Middle Tennessee State University activity (i.e., his EEOC charge and (MTSU). The plaintiff had sustained related lawsuit). Plaintiff argued that this injuries from workplace incidents and general “corporate knowledge” was suffi - general wear and tear over the years. As a cient to satisfy the second element of a result of these injuries, he was placed prima facie case of retaliation. under certain medical restrictions. The court disagreed with the plaintiff However, plaintiff alleged that his super - and clarified the somewhat gray area of visor unlawfully discriminated against employer knowledge of protected him by assigning him work that violated activity. The court reasoned: his medical restrictions. Plaintiff ulti - We respectfully reject the view that mately underwent surgery in August “general corporate knowledge” is 2002. While he was recuperating from sufficient foundation for a claim of surgery, plaintiff filed an EEOC charge of retaliation in employment for discrimination on the basis of race and engaging in protected activity. Retalia - national origin. He returned to work on tory intent or animus must abide in March 17, 2003, and he filed suit on the the mind of a living, breathing discrimination claim on March 27, 2003. person. It is difficult to see how an Plaintiff testified that once he entity such as a corporation can have returned to work his supervisor intent or animus, retaliatory or other - “continue[d] after the lawsuit was filed wise. Consequently we are of the performing the same actions that made view that the plaintiff in a retaliation
OCTOBER 2013 TENNESSEE BAR JOURNAL | 33 The Law at Work continued from page 33 the protected activity) and not just a law degree from UT College of Law in 2012. motivating factor. As Justice Kennedy Notes the trial court and ordered that the case noted in Nassar , retaliation claims “are be dismissed, negating the $3 million being made with ever increasing 1. Niswander v. Cincinnati Ins. Co. , 529 F.3d jury verdict. frequency.” 11 These two decisions may 714, 720 (6th Cir. 2008); Sykes v. Chattanooga So what can employers take away not lessen the number of claims filed, Hous. Auth ., 343 S.W.3d 18, 29 (Tenn. 2011). from Nassar and Ferguson ? Nassar and but they certainly have enabled 2. 133 S. Ct. 2517, 186 L. Ed 2d 503 (2013). its but-for causation standard is binding employers to get more of them 3. No. M2013-00890-COA-R3-CV, 2013 on all Title VII retaliation claims. It will dismissed on summary judgment. Tenn. App. LEXIS 221 (Tenn. Ct. App. March also likely be applied to state claims of 28, 2013). retaliation under Tenn. Code Ann . § 4- EDWARD G. PHILLIPS is a lawyer with Kramer 4. The District Court later reduced the 21-301 because Tennessee courts look Rayson LLC in Knoxville, where his primary compensatory damages to $300,000. to federal interpretation of Title VII cases areas of practice are labor and employment 5. 557 U.S. 167 (2009). in deciding THRA cases. 9 Ferguson, on law. He graduated with honors from East 6. 133 S. Ct. at 2528. Tennessee State University and received his the other hand, is currently an unre - 7. 2013 Tenn. App. LEXIS 221, at *7. law degree from the University of Tennessee ported case and must still hold up on College of Law in 1978 with honors, and as a 8. Id . at **22-23. appeal. 10 But, if it remains good law, one member of The Order of the Coif. He is a former 9. Frazier v. Heritage Fed. Bank , 955 S.W.2d thing is clear — retaliation claims in chair of the Tennessee Bar Association’s Labor 633, 636 n. 1 (Tenn. Ct. App. 1997). Tennessee just got harder to prove. and Employment Law Section. 10. The plaintiff in Ferguson filed his R. 11 Even if a plaintiff can satisfy the Application for Permission to Appeal with the BRANDON L. MORROW is an associate with knowledge requirement, he or she must Tennessee Supreme Court on May 29, 2013. As Kramer Rayson LLC in Knoxville where his then prove the protected activity was the primary areas of practice are labor and employ - of the time of publication, the Court has not “but-for” cause ( i.e. , the unlawful retalia - ment, and litigation. He earned a bachelor’s yet ruled on whether to hear Ferguson’s appeal. tion would not have occurred but for degree from the University of Tennessee and a 11. 133 S. Ct. at 2531.
34 | TENNESSEE BAR JOURNAL OCTOBER 2013 BOOK REVIEW BY DONALD F. PAINE Duel with the Devil: The True Story of How Alexander Hamilton and Aaron Burr Teamed Up to Take on America’s First Sensational Murder Mystery
In 1800 Levi Weeks was tried at New York City Hall on Wall Street for murdering Elma Sands three days before Christmas 1799. The prose - cutor’s theory was that Weeks strangled her, then dumped her in a well. This excellent book takes the reader through background and
By Paul Collins | trial and acquittal. It was the first Amer - He also describes the 2010 discovery ican trial with a verbatim transcript, of the well. If you visit Gotham, go to Crown Publishers | thanks to a court clerk adept at shorthand. Manhattan Bistro in Greenwich Village. Weeks was well represented by The well is in the basement. $26 | 289 pages | 2013 Alexander Hamilton, Aaron Burr, and I recommend this book. Buy it, read Brockholst Livingston (later on U.S. it, and learn. Supreme Court). Cadwallader Colden did a good job for the People, calling eighteen witnesses to create a chain of DONALD F. PAINE is a past president of the circumstantial evidence. Tennessee Bar Association and is of counsel to Author Collins gives his educated the Knoxville firm of Paine, Tarwater, and Bickers guess about the real killer. I believe he is LLP. 3 3 correct.
Thomas F. Bloom, J.D. ! # " " !
3 3 OCTOBER 2013 TENNESSEE BAR JOURNAL | 35 3 3 ZONING, PLANNING AND LAND USE FOR YOUR FRIEND IN THE MUSIC Brook Fox , Metro Nashville Law Dept. THANK BUSINESS: TOP 10 QUESTIONS YOU Lora Fox , Metro Nashville Law Dept. Joseph Jarret , Attorney at Law CAN ANSWER YOU! Matthew Beckett , Beckett Law Office HOW THE USE OF LOAN-OUT David Crow , Milom Joyce Horsnell Crow PLC COMPANIES MAY AFFECT THE Tennessee Bar TAKING AND DEFENDING EFFECTIVE TERMINATION RIGHTS OF RECORDING DEPOSITIONS 2013 ARTISTS AND SONGWRITERS Association Faculty Joshua Bond , Hodges, Doughty and Linda Howard , Adams and Reese LLP Carson Tim Kappel , The Law Office of Timothy Thanks to the contributions of these Frank Holbrook , Butler, Snow, O'Mara, R.W. Kappel LLC attorneys and others listed here, the Stevens & Cannada PLLC Ben Jones , Lewis, King, Krieg & Waldrop PC ARBITRATION TODAY: CUTTING EDGE Tennessee Bar Association’s TennBarU T. Scott Jones , Banks & Jones CONCEPTS FOR THE PRACTITIONER is able to provide the Tennessee legal Buck Lewis , Baker, Donelson, Bearman, Caldwell & Berkowitz PC Robert Arrington , Wilson, Worley, Moore, community with high-quality Jason Long , London & Amburn PC Gamble & Stout PC Matthew May , Rosenblum And Reisman PC Ryan Baker , Bass Berry & Sims PLC programming. Their contributions help Stacie Winkler , The Regional Medical Center John Blankenship , Blankenship & maintain the strength and Blankenship HOT TOPICS IN DISABILITY LAW Margaret Huff , Margaret Huff Mediation vitality of the profession. L. Wearen Hughes , Bass, Berry & Sims PLC Eric Buchanan , Eric Buchanan & Associ - ates PC Barbara Moss , Norris & Norris PLC David Ettinger , Office of Disability Adjudi - Stephen Shields , Jackson, Shields, Yeiser cation & Holt Tenn Bar U Debra Shifrin , Shifrin Newman Smith Inc. CLE FOR TENNESSEE 17TH ANNUAL LABOR & Tamra Smith , Social Security Administration EMPLOYMENT FORUM INTELLECTUAL PROPERTY SPRING Michael Williamson , Attorney at Law John Bode , Miller & Martin PLLC INSTITUTE THE NEW 2-PAGE I-9 FORM Robert Boston , Waller Lansden Dortch & Rebecca Barnett , Waddey & Patterson PC Bruce Buchanan, Siskind Susser PC. Davis LLP Peter Brewer , Baker, Donelson, Bearman, Kate Tucker, Kramer Rayson LLP Bruce Buchanan , Siskind Susser PC Caldwell & Berkowitz Stan Graham , Waller Chris Cherry , FedEx Corporation DOCKET CALL: PRACTICING CRIMINAL Jonathan Harris , Ogletree, Deakins, Matthew Cox , Waddey & Patterson PC Nash Smoak & Stewart PC LAW IN TENNESSEE Laurie Hughes , Attorney at Law Michael Russell , Gilbert, Russell Michael Engle , Metropolitan Nashville Suzanne Kessler , Attorney at Law McWherter PLC Public Defenders Office Russ Mangum , Nathan Associates Inc. Hon. Clifford Shirley , U.S. Magistrate Judge Martesha Johnson , Metro Nashville Gary Montle , Waddey & Patterson PC Mark Travis , Travis ADR Services LLC Public Defenders Office Judge Thomas Shaw , Trademark Trial Andrew Roskind , McKellar Roskind LLP HANDLING CLAIMS AGAINST and Appeal Board Ed Ryan , May & Ryan Deb Smith , Davidson County District INSURANCE AGENTS 10TH ANNUAL BANKRUPTCY FORUM Attorney General's Office Chad Naffziger , Gilbert Russell Lawrence Ahern III , Burr & Forman LLP David Veile , Schell Binkley & Davies LLC McWherter PLC Hon. Paulette Delk , U.S. Bankruptcy Court — Western District of Tennessee GUIDE TO EXPERT WITNESS FORUM 2013 CREDITOR RIGHTS 101: Prof. Christopher Frost , University of Janie Berryman , Berryman & Associates 10 COLLECTION STRATEGIES EVERY Kentucky Fred Grello , Butler, Vines and Babb PLLC LAWYER SHOULD KNOW Mark Graham , The Graham Law Firm Amy Hess , University of Tennessee PLLC College of Law David M. Anthony , Bone, McAllester, Hon. Randal Mashburn , U.S. Bankruptcy Judge Ross Hicks , 19th District Circuit Court Norton PLLC Court — Middle District Cathlin Mitchell , Care Management IMMIGRATION LAW SEMINAR: Hon. Marcia Parsons , U.S. Bankruptcy Consultants Court — Eastern District Alan Parham , Parham Engineering FOR IMMIGRATION, CRIMINAL AND Hon. Shelley Rucker , U.S. Bankruptcy Consultants PLAINTIFF TRIAL ATTORNEYS Courts — East Dist of Tennessee Jeffery Proctor , Thurman Campbell Group PLC Andrew Free , Immigration Law Offices of CAN I REALLY USE THIS IPAD Elliott Ozment Andrew Tillman , Chancellor for the 8th Judicial District Tricia Herzfeld , Ozment Law IN COURT? Charles Young Jr. , B&W Technical Elliott Ozment , Immigration Law Offices Ben Vincent , LogicForce Consulting Services Y-12 LLC of Elliott Ozment A SERviCE OF ThE TENNESSEE BAR ASSOCiATiON TENNBARU: CLE FOR TENNESSEE Elizabeth Sykes , Administrative Office of PRODUCTS LIABILITY 101 THANK the Courts Colin Turner , Howard, Tate, Sowell, Wilson Leathers & Johnson PLLC YOU! FROM THE KITCHEN TABLE TRAPS FOR THE UNWARY: TO THE BOARDROOM: COMMON CHALLENGES FACING Tennessee Bar START-UP LEGAL ISSUES Trace Blankenship , Bone McAllester BUSINESS LAWYERS IN TENNESSEE Association Faculty Norton PLLC Roddy Bailey , Miller & Martin PLLC Lillian Blackshear , Bass Berry & Sims CAN STUDENT LOANS BE DISCHARGED Mary Ann Jackson , Baker, Donelson, BUYER DUE DILIGENCE FOR THE THROUGH BANKRUPTCY? Bearman, Caldwell & Berkowitz PC Kris Kemp , Harwell Howard Hyne DISTRESS DEAL Gordon Boutwell , Attorney at Law Gabbert & Manner Richard Spore , Bass Berry & Sims Donald McKenzie , McKenzie Laird PLLC HOT ISSUES IN ASSISTED LIVING SOUTHEAST PRODUCTS LIABILITY FACILITY LITIGATION TRAPS FOR THE UNWARY: FORUM 2013 Jason Lee , Brewer, Krause & Brooks COMMON CHALLENGES FACING Mark Chalos , Lieff, Cabraser, Heimann & FEDERAL PRACTICE SEMINAR 2013 BUSINESS LAWYERS IN TENNESSEE Bernstein LLP Philip Elbert , Neal & Harwell PLC Tannera Gibson , Burch, Porter & Johnson Alicia Brown Oliver , Chambliss, Bahner Lela Hollabaugh , Bradley Arant Boult PLLC & Stophel PC Cummings LLP Marc Jenkins , Cicayda Laurel Williams , Burch, Porter & Johnson Kyle Miller , Butler Snow Carol Owen , Baker Donelson Bearman, PLLC George Nolan , Leader Bulso & Nolan Caldwell & Berkowitz PC John Wood , Egerton, McAfee, Armistead Gerard Stranch , Branstetter, Stranch & W. Russel Taber III , Riley Warnock & & Davis PC Jennings PLLC Jacobson PLC HOLD YOUR FIRE! WHAT DOES ‘GUNS CAN I REALLY USE THIS ANDROID EDISCOVERY IN REAL LIFE IN CARS’ MEAN FOR EMPLOYERS IN TABLET IN COURT? Drew Lewis , Recommind TENNESSEE? Ben Vincent , LogicForce Consulting LETTERS FROM THE IRS: Chad Hatmaker , Woolf, McClane, Bright, Allen & Carpenter PLLC PREVENTING LEGAL MALPRACTICE: COMMON ISSUES REAL ESTATE ESSENTIALS: IT'S ABOUT TIME, MAY 2013 David Hayes , David Hayes & Associates A PRIMER IN COMMERCIAL REAL Chris Stiegemeyer , The Bar Plan ELDER LAW FORUM 2013 ENTERTAINMENT & SPORTS FORUM Mark Addison , Chambliss, Bahner & ESTATE FOR TENNESSEE LAWYERS Stophel PC Rich Egan , Hard 8 Management Kay Housch , Kay B. Housch PC Barbara Boone McGinnis , Elder Law John Jacobson , Riley Warnock & Practice of Timothy L. Takacs Jacobson PLC REAL ESTATE ESSENTIALS: Amelia Crotwell , Elder Law of East A PRIMER IN COMMERCIAL REAL Paul Kruse , Bone McAllester Norton PLLC Tennessee Sean Marshall , Nashville Predators Bryson Eubanks , Elder Law Practice of ESTATE FOR TENNESSEE LAWYERS Worrick Robinson , Robinson, Reagan & Timothy L. Takacs William Rosenberg , First American Title Young PLLC Andra Hedrick , Gullett, Sanford, Insurance Company Brittany Schaffer , Loeb & Loeb LLP Robinson, & Martin PLLC Peter Sales , Bradley Arant Boult Preston Shipp , Tennessee Board of Mary Catherine Kelly , Attorney at Law Cummings LLP Professional Responsibility Harold Parker , Attorney at Law Stephanie Taylor , Bone McAllester Lisa Pullem , East Tennessee Area Agency CURRENT DEVELOPMENTS IN TENN. Norton PLLC on Aging & Disability TAX LAW AND ESTATE PLANNING Jordan Vandiver , Jordan Vandiver Law Timothy Takacs , Elder Law Practice of Brett Carter , Bradley Arant Boult TRUCK ACCIDENT LITIGATION Timothy L. Takacs Cummings LLP Stacy Gibson , Tennessee Department of Sean Hunt , The Hunt Law Firm RUNNING FOR OFFICE 2013: Revenue TRANSITIONAL LEGAL EDUCATION TENNESSEE CAMPAIGN ETHICS Stephen Jasper , Bass Berry & Sims PLC Beth Henry-Robertson , Deputy Kurt Rademacher , Butler, Snow, O'Mara, PROGRAM, JUNE 2013 Coordinator of Elections Stevens & Cannada PLLC James Crumlin Jr. , Bone McAllester Lucian Pera , Adams & Reese LLP Eddy Smith , Holbrook Peterson Smith PLLC Norton PLLC Drew Rawlins , Bureau of Ethics and Randy Kinnard , Kinnard, Clayton & Campaign Finance MEDICAL MALPRACTICE AFTER TORT Beveridge Gif Thornton , Adams & Reese REFORM Matt Potempa , Martin Heller Potempa & Stephen Zralek , Bone McAllester Norton Sheppard PLLC Clint Kelly , The Kelly Firm PLLC
A SERviCE OF ThE TENNESSEE BAR ASSOCiATiON TENNBARU: CLE FOR TENNESSEE BUT SERIOUSLY FOLKS BY BILL HALTOM The Highly Exaggerated Death of Newspapers Mark Twain once said, “The reports of my death have been highly exaggerated.” In the aftermath of the recent sale of The Washington Post to Amazon.com king Jeff Bezos and the sale of The Boston Globe to Red Sox owner John Henry, nervous journalists around the country are writing obits for daily newspapers. But these reports, like the
premature accounts of Mark Twain’s begin each day by looking at The passing, have been highly exaggerated. Commercial Appeal sports page. Even if The First Amendment is not dead. It is the front page has a screaming headline “It may be the First Amend - not even sick. It is robust and healthy (not that says “NUCLEAR WAR ABOUT TO to be confused with the law firm by the START,” I’ll check the sports page first to ment gone wild, but the truth same name, Robust & Healthy PLLC). see how the Cardinals did last night. is, there is now more jour - Make no mistake, the traditional When I was in the third grade, I actu - folded newspaper at the edge of your ally started my own paper, Our Third nalism than ever.“ driveway may go the way of rabbit-ears Grade News. I didn’t even type it. I wrote TV sets. Evening newspapers folded it out on a stencil pad and then ran it off about 20 years ago. But to paraphrase in blue ink on a mimeograph machine. I Faulkner’s great line, newspapers will still remember how it looked and smelled. not merely survive; they will prevail, In 1963, at the age of 11, I got my albeit in an evolving, different format. first job in the newspaper business when I love newspapers. I loved them even I went to work in the circulation depart - before I could read them. ment of The Press Scimitar. My earliest memories are of sitting on I was a paperboy. my father’s lap, looking at the comic strips, Six afternoons a week ( The Press Scim - as he read the captions out loud. Charlie itar did not have a Sunday edition), I Brown was a friend of mine even before I would pick up 83 copies of The Press could read the words “Good grief!” Scimitar and deliver them throughout When I was in the first grade, there the neighborhood. I was quite proud of were three sources that taught me to my job. I was an 11-year-old Walter read: Dick & Jane, The Commercial Appeal Cronkite, literally bringing the news to (Memphis’ morning paper), and The my neighbors. Press Scimitar (Memphis’ evening paper). Thursday night was “collection Again, my role model as a reader was night.” That’s when I would go to 83 my father. He got all of his news from homes, knock on the doors, and get newspapers. Dad didn’t watch Walter paid for my deliveries. Cronkite or Huntley Brinkley. He read I have never been wealthier. Most of The Commercial Appeal in the morning my customers paid me in loose change, and The Press Scimitar at night. and I would fill up my pants pockets And by the second grade, I was doing with coins until I ran a serious risk that the same thing. I would begin each day at my pants would drop and I would moon the kitchen table looking at The Commer - readers of The Press Scimitar. cial Appeal sports page while I ate a bowl I was ahead of my time in fashion, of Rice Krispies. I have in fact done this since I now see so many young men every day now for the past 55 years. I still walking around with their trousers
38 | TENNESSEE BAR JOURNAL OCTOBER 2013 hanging half-way down to their ankles. A new editor arrived at The Commercial not have a folded Commercial Appeal at (I’m afraid they’re not paper boys.) Appeal, and he promptly made several the edge of my driveway. But I believe My job with The Press Scimitar ended changes to the paper. I was one of those the Washington Post, The Boston Globe, when I headed off to college, but my changes, as he dropped my column. The Commercial Appeal, the Tennessee Bar work in the newspaper field did not end. Fortunately, the Tennessee Bar Journal Journa l and…yes!...The University of I became a columnist for what was then kept me as a non-compensated colum - Tennessee Daily Beacon will all survive, and remains to this day the finest news - nist, but only to give some counterpoint although in a few years, you will no paper in the State of Tennessee — The to the scholarship of Don Paine. longer be able to wrap a fish in them. University of Tennessee Daily Beacon. And then, Al Gore invented the I intend to keep writing for anybody I was no longer a paperboy. I was … internet. Suddenly every idiot with a willing to read a counterpoint to “Paine a writer! It was the first time I ever saw computer could start a blog and become on Procedure” or totally waste time the words “By Bill Haltom” in print, and a columnist. reading my blog. The reports of my it was an awesome experience. I know this, because I am one of death as a journalist have been highly After four years with the Beacon , I those idiots exaggerated. made a terrible mistake. I went to law It may be the First Amendment gone school where I discovered to my disap - wild, but the truth is, there is now BILL HALTOM is a partner with the Memphis pointment that they did not need a more journalism than ever. Is it all first- firm of Thomason, Hendrix, Harvey, Johnson & humor columnist for the law review. rate, Pulitzer Prize winning stuff? No, Mitchell. He is past president of the Tennessee I tried to become Perry Mason rather but it never was, even in the “good old Bar Association and is a past president of the than Clark Kent. But my heart wasn’t in days” when my father read two news - Memphis Bar Association. the courtroom. I wanted to be in the papers a day. newsroom of the Daily Planet with Clark I no longer have a Press Scimitar to and Lois and Jimmy. throw at night, and in a few years, I may And so I kept writing and submitting my work to newspapers, magazines, and church bulletins, hoping to find publishers with incredibly low journal - istic standards. I was turned down more times than a bed sheet. It took me 20 years to become an overnight journalist sensation, but miraculously, in the decade of the 1990s, I found myself writing a monthly column for the Tennessee Bar Journal, and a weekly column for The Commercial Appeal. I couldn’t believe my luck. On Saturday mornings, after reading the sports page, I could turn to the Op- Ed page and actually read my own words, and yes, see my cool by-line. I put the vanity in “vanity press.” I wasn’t getting paid much. In fact, I was making a lot less money as a colum - nist than I had made as a paperboy. When I complained about this to The Commercial Appeal ’s editor, a wonderful man named Lionel Linder, he calmly responded, “You were worth more when you were a paperboy.” He was right. After four wonderful years with The Commercial Appeal, my career as a news - paper columnist came to an abrupt halt.
OCTOBER 2013 TENNESSEE BAR JOURNAL | 39 CLASSIFIEDS
SERVICES counties for Florida probate, trust and [email protected]. All inquiries estate matters. 38410 North Ave, Zephry - and responses will be held in confidence. CERTIFIED FORENSIC hills, Florida 33542. 813-782-7106. DOCUMENT EXAMINER www.carle-law.com. NASHVILLE ESTATE PLANNER Tennessee’s only full-time ABFDE-certified Experienced, solo estate planning practi - full-time document examiner. Formerly POSITIONS AVAILABLE tioner with mature, multi-generational, high with U.S. Postal Inspection Service Crime net worth client base seeks young, self- Laboratory. Certified by American Board of UNIFORMED ATTORNEY supporting estate planner with excess Forensic Document Examiners. American AND PARALEGAL OPENINGS capacity and at least 7 years’ experience to Society of Questioned Document Exam - The 139th Legal Operations Detachment, service and grow existing client base and iners. Substantial civil, criminal and trial U.S. Army Reserve, with offices in transition clients over next 10-15 years. experience. Thomas Vastrick, 6025 Stage Tennessee and Kentucky, has uniformed LLM in taxation preferred. Send inquiries to Road, Suite 42-309, Memphis, TN 38134; attorney and paralegal openings for those Tennessee Bar Journal , 221 4th Avenue N., (901) 383-9282. interested in serving the Nation. Contact Ste 400. Box 1437, Nashville, TN 37219 Captain Kyle Wiete at kyle.wiete@ CERTIFIED FORENSIC us.army.mil, ( 937) 212-4238 to apply, FOR SALE HANDWRITING EXPERT or see www.jagcnet.army.mil for more www.HandwritingForensics.com information. LAW BOOKS FOR SALE Qualified in all courts. Law Library Books for sale, approximately Handwriting Identification, SEEKING LICENSED COLLECTION 2,100 volumes, including: Full set of Fed Forgery, Anonymous Letters, Graffiti. ATTORNEY Rept 2nd Vol. 1-999; Fed 2nd 1-69; Full Diplomate / ABFE, NC Dept. of Justice, Messerli & Kramer, a nationally recog - set - SW 2d (TN) SE 2d (GA); ALR 2d Vol. U.S. Secret Service QDC I & II. nized collection law firm with offices in 1-100; ALR 3d Vol. 1-100; ALR 4th - 1-81; Theresa F. Dean, Handwriting Expert, the Minneapolis and Milwaukee areas, is ALR Fed 1-125; USCA full Set (some Hendersonville, NC; (828) 891-4263 looking to open an office in Tennessee. We supplements); Proof of Facts 2d and 3d; PO Box 414, Horseshoe, NC 28742; are seeking a Tennessee-licensed collection AM Jur Forms 1st and 2nd; AM Trials (full Located in Hendersonville, NC. attorney with ten years experience, or an set); $900, Available for pick-up only. Call [email protected] existing Tennessee collection firm. We (423) 756-5034. have more than 40 years in the collection CERTIFIED FORENSIC business, and our clients include many of TBA MEMBER SERVICES HANDWRITING EXAMINER the largest financial institutions and debt Court-Qualified Handwriting Examiner. buyers. In addition to collection cases our PROVIDE PRO BONO SERVICES TO Qualified in local, state and federal court, firm handles replevin, foreclosure and ARTISTS AND ARTS ORGANIZATIONS! including for the FBI. Certified by the secured bankruptcy matters. Interested Volunteer Lawyers & Professionals for the National Association of Document Exam - candidates should possess the following: Arts coordinates the provision of pro bono iners. Cases involving wills, insurance *Knowledge of related laws and regula - legal services to low-income artists and claims, product sabotage threats, death tions including State-level collection laws, emerging arts organizations in Greater threat letters, falsified records, bank cards/ FDCPA, TCPA, FCRA and the CFPB. Nashville. The organization invites lawyers embezzlement. Professional, always well *Experience in the collection practice of all practice areas to volunteer, including prepared. Jane Eakes, CDE, 615-883-0635. including use of standard collection soft - entertainment, intellectual property, tax, [email protected] ware. *Strong organizational and manage - real estate, corporate and employment law. ment skills and the ability to handle a Contact us at [email protected] or FLORIDA PROBATE, TRUST, AND large volume of files. *The ability and will - (615) 460-8274 for more information. ESTATE MATTERS ingness to work collaboratively in a team Certified as a specialist by The Florida Bar environment. Interested applicants should in the area of Wills, Trusts & Estates, send a resume and/or their firm descrip - Stephen Carle is available in all 67 Florida tion and contact information to
See classifieds online at http:// www.tba.org RATES: The classified advertising rate is $85 for up to 50 words and $1.70 per word thereafter. Payment for classified advertisements must accompany advertising message. As a service to our members, there is no charge for advertisements up to 50 words for full-time job openings. For information about classified or display advertising, please contact Joe Munsinger at our advertising sales partner, LLM Publications, Inc., 800-647-1511, x2223, fax 888-643-3556, or email [email protected].
40 | TENNESSEE BAR JOURNAL OCTOBER 2013 300+ TBA members find solutions with Graham!
Since joining the Tennessee Bar Association this March as the TBA insurance agent, Graham Swafford has helped more than 300 TBA members find solutions to their insurance needs! Graham, a Tennessee native with deep roots in the legal community here is showing TBA members daily the answers they are looking for. Call Graham today and let him work for you too!
Fast, Easy and Friendly Since 2010 The Bar Plan Health Insurance Enrollment has been the only lawyers through the TBA Health professional liability carrier Insurance Exchange endorsed by the Tennessee operated by JLBG Health . Association discounts Bar Association. Offering for all of your malpractice insurance to • No Paper Applications insurance needs, including: firms and sole practitioners, • Phone enrollment in there are custom plan as little as 15 minutes • Long-term Disability designs for full-time or • Approval in less than • Long-term Care part-time attorneys based on 24 hours • Life Insurance individual needs. Contact Your insurance agent Graham Swafford today 615-383-7421 • [email protected] Take a picture of this with your smart phone and read the Tennessee Bar Journal at www.tba.org/journal
12 20 TE PDA U now ded! inclu DAYON TORTS:LEADING CASES IN TENNESSEE TORT LAW What You Need to Know. When You Need to Know It. “Quick! I need a case that says....” If you’re an associate, you’ve heard it. If you’re a partner, you’ve said it. Computerized research is not always time-efficient when you’re looking for the case on point. And time is money. This book will save you hours of research every month…time that can be spent developing new clients for your practice. With Day on Torts, you’ll have at your fingertips:
• Leading Tennessee cases on more than 300 tort law subjects • Easy-to-read summaries • Citations to 1000s of other cases NEW! 2012 supplement containing: • 120+ pages • 2 new chapters • 32 new sections • 8 leading cases updated • Citations to 96 decisions released since 2010 This book is the most complete, straight-forward and reliable resource for Tennessee tort lawyers.
Author John A. Day, 2012 Best Lawyers Bet-the-Company Litigation Lawyer of the Year for Nashville and 2012 Best Lawyers in America listed in Personal Injury, Medical Malpractice, Products Liability, Commercial and Bet-the-Company Litigation
To order visit: www.dayontortsbook.com Purchase Price: $179, plus S/H and tax ($139 for attorneys in practice 5 years or less. Visit website for details.)