H.P. LARGE, and TERRANCE R. CRAIG, d/b/a GREENFIELD LAND AND CATTLE COMPANY, v. GREENE COUNTY, TENNESSEE (Tenn. Ct. App. December 28, 2009)
Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property. Defendant filed a Motion for judgment on the pleadings which characterized plaintiffs' cause of action as an inverse condemnation action.
Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs' action was based on inverse condemnation and the statute had run on that action. The Trial Judge also ruled that the statute had run on the nuisance claim. On appeal, we affirm the Trial Judge's holding that plaintiffs' action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs' claims.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_122809.pdf
Susano’s dissenting opinion is available at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_DIS_122809.pdf
December 28, 2009
Appelate Court affirms trial court ruling that statute of limitaions had run
H.P. LARGE, and TERRANCE R. CRAIG, d/b/a GREENFIELD LAND AND CATTLE COMPANY, v. GREENE COUNTY, TENNESSEE (Tenn. Ct. App. December 28, 2009)
Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property.
Defendant filed a Motion for judgment on the pleadings which characterized plaintiffs' cause of action as an inverse condemnation action. Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs' action was based on inverse condemnation and the statute had run on that action. The Trial Judge also ruled that the statute had run on the nuisance claim.
On appeal, we affirm the Trial Judge's holding that plaintiffs' action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs' claims.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_122809.pdf
A dissenting opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_DIS_122809.pdf
Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property.
Defendant filed a Motion for judgment on the pleadings which characterized plaintiffs' cause of action as an inverse condemnation action. Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs' action was based on inverse condemnation and the statute had run on that action. The Trial Judge also ruled that the statute had run on the nuisance claim.
On appeal, we affirm the Trial Judge's holding that plaintiffs' action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs' claims.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_122809.pdf
A dissenting opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/hplarge_DIS_122809.pdf
TCA upholds judgment for homebuyer
TIMOTHY BOWEN, ET AL. v. SAMUEL E. RASNAKE (Tenn. Ct. App. December 28, 2009)
Timothy Bowen and his wife Leanne Bowen ("the Buyers") contracted to purchase a house from Samuel E. Rasnake ("the Seller") that was still under construction. The Buyers experienced numerous problems with the house and filed their complaint against the Seller for defective construction, breach of warranty and misrepresentation. After a bench trial, the court awarded the Buyers judgment against the Seller in the amount of $42,300. The Seller appeals. We affirm.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/bowent_122809.pdf
Timothy Bowen and his wife Leanne Bowen ("the Buyers") contracted to purchase a house from Samuel E. Rasnake ("the Seller") that was still under construction. The Buyers experienced numerous problems with the house and filed their complaint against the Seller for defective construction, breach of warranty and misrepresentation. After a bench trial, the court awarded the Buyers judgment against the Seller in the amount of $42,300. The Seller appeals. We affirm.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/bowent_122809.pdf
December 23, 2009
Lawmakers to suspend new Workers Compensation requirements for further study in the legislature
Workers comp law change eyed
Lawmakers meet with contractors upset over measure
Knoxville News Sentinel
When they return to the Capitol next month, state lawmakers will be under pressure to change a workers compensation law that takes effect on Dec. 31.
At a breakfast meeting on Tuesday, a trio of local legislators heard from contractors who are upset about a provision that places new insurance mandates on certain businesses. The meeting was co-hosted by the National Federation of Independent Business, and featured Knoxville Reps. Harry Tindell, a Democrat, and Bill Dunn, a Republican, along with Sen. Doug Overbey, a Maryville Republican.
Jim Brown, NFIB's state director, said he's been told by members of the legislative leadership that a suspension of the law should happen quickly after lawmakers resume their business on Jan. 12. Brown also said the Department of Labor has indicated contractors who are found to be in violation before the law is suspended will be given 60 days to come into compliance.
But Overbey pointed out that it's dangerous to predict legislative action, saying "how long it will take and what it will do I wouldn't start to predict." The senator also said he's getting an equal number of letters from people who say the law should be left alone, as from those who are calling for a suspension.
Sam Sole, a local siding contractor, attended the meeting and said the law will put him out of business. His two biggest customers, Sole said in an interview, typically build 150 to 180 homes a year between them, but through the first six-and-a-half months of this year had only built six. His gross profit on six homes, Sole said, adds up to around $6,000, making it impossible to afford the new insurance mandate.
And the possibility that the law will be suspended? "How can I trust the same people that put it in as law (in the first place)?" he said.
Article located at: http://www.knoxnews.com/news/2009/dec/16/workers-comp-law-change-eyed/
Lawmakers meet with contractors upset over measure
Knoxville News Sentinel
When they return to the Capitol next month, state lawmakers will be under pressure to change a workers compensation law that takes effect on Dec. 31.
At a breakfast meeting on Tuesday, a trio of local legislators heard from contractors who are upset about a provision that places new insurance mandates on certain businesses. The meeting was co-hosted by the National Federation of Independent Business, and featured Knoxville Reps. Harry Tindell, a Democrat, and Bill Dunn, a Republican, along with Sen. Doug Overbey, a Maryville Republican.
Jim Brown, NFIB's state director, said he's been told by members of the legislative leadership that a suspension of the law should happen quickly after lawmakers resume their business on Jan. 12. Brown also said the Department of Labor has indicated contractors who are found to be in violation before the law is suspended will be given 60 days to come into compliance.
But Overbey pointed out that it's dangerous to predict legislative action, saying "how long it will take and what it will do I wouldn't start to predict." The senator also said he's getting an equal number of letters from people who say the law should be left alone, as from those who are calling for a suspension.
Sam Sole, a local siding contractor, attended the meeting and said the law will put him out of business. His two biggest customers, Sole said in an interview, typically build 150 to 180 homes a year between them, but through the first six-and-a-half months of this year had only built six. His gross profit on six homes, Sole said, adds up to around $6,000, making it impossible to afford the new insurance mandate.
And the possibility that the law will be suspended? "How can I trust the same people that put it in as law (in the first place)?" he said.
Article located at: http://www.knoxnews.com/news/2009/dec/16/workers-comp-law-change-eyed/
December 15, 2009
TCA affirms Summary Judgment in favor of defendant
JULIANNA WALKER and MARY S. WHITE v. CALVIN BEASLEY, JIMMIE BEASLEY, JACK S. HALL, JR., MARY HALL, JOHN CHORLEY, TAYLOR-MADE CONSTRUCTION, INC.,TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, WILLIAM R. PASCHALL, and JUNE RASMUSSEN (Tenn. Ct. App. December 15, 2009)
This appeal involves insurance coverage. The plaintiffs purchased an undeveloped parcel of real property and hired a contractor to build a house on it. After the house was constructed, the plaintiffs discovered that cleared timber was buried underneath the land on which the house stood. Thereafter, the house developed structural problems, such as foundation cracks and non-alignment of doors and windows. The plaintiffs made a claim for coverage under their homeowners insurance policy; however, the insurer denied the claim, citing an exclusion of coverage for damages resulting from settling. The plaintiffs filed suit against inter alia the insurer alleging breach of contract and bad faith, and the plaintiffs and the insurer filed cross-motions for summary judgment.
After conducting a hearing on the matter and considering expert testimony that the damage was caused by settling, the trial court granted the insurer's motion for summary judgment. The plaintiffs now appeal, arguing that the settlement in this case is so excessive as to remove it from the ordinary meaning of the term "settling." We affirm.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/walkerj_121509.pdf
This appeal involves insurance coverage. The plaintiffs purchased an undeveloped parcel of real property and hired a contractor to build a house on it. After the house was constructed, the plaintiffs discovered that cleared timber was buried underneath the land on which the house stood. Thereafter, the house developed structural problems, such as foundation cracks and non-alignment of doors and windows. The plaintiffs made a claim for coverage under their homeowners insurance policy; however, the insurer denied the claim, citing an exclusion of coverage for damages resulting from settling. The plaintiffs filed suit against inter alia the insurer alleging breach of contract and bad faith, and the plaintiffs and the insurer filed cross-motions for summary judgment.
After conducting a hearing on the matter and considering expert testimony that the damage was caused by settling, the trial court granted the insurer's motion for summary judgment. The plaintiffs now appeal, arguing that the settlement in this case is so excessive as to remove it from the ordinary meaning of the term "settling." We affirm.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/walkerj_121509.pdf
TCA examines company's failure to follow TOSHA regulations
DILLARD SMITH CONSTRUCTION COMPANY v. COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. December 15, 2009)
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings.
The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings.
The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
December 09, 2009
Court of Appeals confirms judgment against city for damages
BOBBY STEVE SIMMONS and JEANNIE L. SIMMONS v. CITY OF MURFREESBORO, ET AL. (Tenn. Ct. App. December 9, 2009)
Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor's restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants' land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property -- $137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court's award should be reduced by $132.00.
The proper measure of damages in this case is the lesser of the cost to restore Appellants' property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property's diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/simmonsb_121009.pdf
Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor's restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants' land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property -- $137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court's award should be reduced by $132.00.
The proper measure of damages in this case is the lesser of the cost to restore Appellants' property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property's diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/simmonsb_121009.pdf
Court vacates judgment in favor of plaintiff homeowner
FORREST CONSTRUCTION COMPANY, LLC v. JAMES L. LAUGHLIN, II, ET AL. v. THOMAS B. NAIVE (Tenn. Ct. App. December 9, 2009)
This action involves a variety of claims arising from the construction of a residence in Williamson County. A homeowner, James Laughlin, entered into a cost plus contract with Forrest Construction Company, LLC to construct a home for he and his wife. Prior to the home being completed, Forrest Construction stopped work, filed a lien on the residence, and thereafter filed a breach of contract action against Mr. Laughlin and an action to recover damages based on the doctrine of quantum meruit against Mrs. Laughlin. Forrest Construction claimed that Mr. Laughlin was in breach of the contract for failure to pay according to the contract. Mr. and Mrs. Laughlin filed a counter-claim for negligent construction, gross negligence, negligence per se, breach of contract, and violations of the Tennessee Consumer Protection Act.
The trial court found that Mr. Laughlin had materially breached the contract by failing to pay according to the terms of the contract, and awarded damages to Forrest Construction. Conversely, the trial court found for the Laughlins on their claim of negligent construction and awarded damages against Forrest Construction. Both parties appeal. Forrest Construction contends that the trial court erred in holding it liable for alleged defects because Mr. Laughlin committed the first material breach and failed to give Forrest Construction notice and the opportunity to cure the alleged defects. Mr. Laughlin contends the trial court erred in finding that he committed the first material breach. The Laughlins also contend the trial court erred in reducing the cost of the repairs to their residence and in failing to pierce the corporate veil.
We find that Forrest Construction was the first to materially breach the contract by submitting requests for draws that were not properly supported by records of its costs and expenses as required by the contract, including submitting draws which erroneously included charges for work done on its other projects, and by failing to complete construction of the home. We, therefore, reverse the trial court's determination that Mr. Laughlin committed the first material breach and hold that Forrest Construction was the first to materially breach the contract. We affirm the trial court's determination that the Laughlins were excused from the duty to give notice of the alleged defects and an opportunity to cure; thus, the Laughlins are entitled to recover damages due to the negligent construction by Forrest.
As for the trial court's substantial reduction of the damages requested by the Laughlins for the cost to repair the yet unrepaired defects to their home, we are unable to determine whether the trial court considered or overlooked $55,000 of the estimated cost to repair the defects; therefore, we remand this issue to afford the trial court the opportunity to either restate its previous ruling or to increase the award of damages, if it so determines, based on the evidence presently in the record. As for the issue of piercing the corporate veil, we remand that issue for further proceedings.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/forrestconst_121009.pdf
This action involves a variety of claims arising from the construction of a residence in Williamson County. A homeowner, James Laughlin, entered into a cost plus contract with Forrest Construction Company, LLC to construct a home for he and his wife. Prior to the home being completed, Forrest Construction stopped work, filed a lien on the residence, and thereafter filed a breach of contract action against Mr. Laughlin and an action to recover damages based on the doctrine of quantum meruit against Mrs. Laughlin. Forrest Construction claimed that Mr. Laughlin was in breach of the contract for failure to pay according to the contract. Mr. and Mrs. Laughlin filed a counter-claim for negligent construction, gross negligence, negligence per se, breach of contract, and violations of the Tennessee Consumer Protection Act.
The trial court found that Mr. Laughlin had materially breached the contract by failing to pay according to the terms of the contract, and awarded damages to Forrest Construction. Conversely, the trial court found for the Laughlins on their claim of negligent construction and awarded damages against Forrest Construction. Both parties appeal. Forrest Construction contends that the trial court erred in holding it liable for alleged defects because Mr. Laughlin committed the first material breach and failed to give Forrest Construction notice and the opportunity to cure the alleged defects. Mr. Laughlin contends the trial court erred in finding that he committed the first material breach. The Laughlins also contend the trial court erred in reducing the cost of the repairs to their residence and in failing to pierce the corporate veil.
We find that Forrest Construction was the first to materially breach the contract by submitting requests for draws that were not properly supported by records of its costs and expenses as required by the contract, including submitting draws which erroneously included charges for work done on its other projects, and by failing to complete construction of the home. We, therefore, reverse the trial court's determination that Mr. Laughlin committed the first material breach and hold that Forrest Construction was the first to materially breach the contract. We affirm the trial court's determination that the Laughlins were excused from the duty to give notice of the alleged defects and an opportunity to cure; thus, the Laughlins are entitled to recover damages due to the negligent construction by Forrest.
As for the trial court's substantial reduction of the damages requested by the Laughlins for the cost to repair the yet unrepaired defects to their home, we are unable to determine whether the trial court considered or overlooked $55,000 of the estimated cost to repair the defects; therefore, we remand this issue to afford the trial court the opportunity to either restate its previous ruling or to increase the award of damages, if it so determines, based on the evidence presently in the record. As for the issue of piercing the corporate veil, we remand that issue for further proceedings.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/forrestconst_121009.pdf
Court reviews action to enforce a mechanics and materialmen's lien
GEORGE SANDERS, Individually and d/b/a SMS CONTRACTORS, INC., ET AL. v. DR. SAMMY HOLLOWAY, ET AL. (Tenn. Ct. App. December 9, 2009)
This lawsuit was commenced by Plaintiff/Appellee George Sanders, individually and d/b/a SMS Contractors, Inc., ("SMS"; collectively, Mr. Sanders) as an action to enforce a mechanics and materialmen's lien filed in the Chancery Court for Shelby County in March 2005. In his complaint, Mr. Sanders named as Defendants Dr. Sammy Holloway (Dr. Holloway); Breath of Life Christian Church ("the Church"); National Bank of Commerce ("NBC"); and Bricks, Inc. ("Bricks"). In April 2005, the Church answered and filed a counter-claim against Mr. Sanders and a cross-claim against Bricks. Mr. Sanders answered the Church's counter-claim in June 2005. Bricks answered Mr. Sanders' complaint and the Church's cross-claim in June 2005. In June 2005, Bricks also counter- claimed against Mr. Sanders, and filed a cross-claim against the Church. Mr. Sanders answered Brick's counter-complaint on June 30, 2005; the Church answered Brick's cross-claim on July 15, 2005.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/sandersg_120909.pdf
This lawsuit was commenced by Plaintiff/Appellee George Sanders, individually and d/b/a SMS Contractors, Inc., ("SMS"; collectively, Mr. Sanders) as an action to enforce a mechanics and materialmen's lien filed in the Chancery Court for Shelby County in March 2005. In his complaint, Mr. Sanders named as Defendants Dr. Sammy Holloway (Dr. Holloway); Breath of Life Christian Church ("the Church"); National Bank of Commerce ("NBC"); and Bricks, Inc. ("Bricks"). In April 2005, the Church answered and filed a counter-claim against Mr. Sanders and a cross-claim against Bricks. Mr. Sanders answered the Church's counter-claim in June 2005. Bricks answered Mr. Sanders' complaint and the Church's cross-claim in June 2005. In June 2005, Bricks also counter- claimed against Mr. Sanders, and filed a cross-claim against the Church. Mr. Sanders answered Brick's counter-complaint on June 30, 2005; the Church answered Brick's cross-claim on July 15, 2005.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/sandersg_120909.pdf
Are the recent changes to Tennessee law requiring a sole proprietor to carry workers’ compensation insurance on himself constitutional?
Constitutionality of Mandatory Workers' Compensation Insurance Coverage (TN Attorney General Opinion 09-184, December 9, 2009)
The Attorney General states that yes, the recent addition to the T.C.A. requiring a sole proprietor to carry workers' compensation insurance on himself is constitutional. He cites the legislative history of the statute, which shows that the statute was amended due to a need to ensure that all subcontractors and employees working on a construction site are covered by workers' compensation insurance because some employers were claiming that their employees or subcontractors were sole proprietors in order to avoid paying for coverage. Since the TN Workers' Compensation Act is meant to relieve society the burden of providing compensation to injured workers, the Attorney General believes that the requirement that a sole proprietor have insurance coverage is related to the purpose of the TWCA and, thus, is constitutional.
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2009/ag_09_184.pdf
The Attorney General states that yes, the recent addition to the T.C.A. requiring a sole proprietor to carry workers' compensation insurance on himself is constitutional. He cites the legislative history of the statute, which shows that the statute was amended due to a need to ensure that all subcontractors and employees working on a construction site are covered by workers' compensation insurance because some employers were claiming that their employees or subcontractors were sole proprietors in order to avoid paying for coverage. Since the TN Workers' Compensation Act is meant to relieve society the burden of providing compensation to injured workers, the Attorney General believes that the requirement that a sole proprietor have insurance coverage is related to the purpose of the TWCA and, thus, is constitutional.
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2009/ag_09_184.pdf
December 02, 2009
Court reviews personal knowledge of trial court judge in case about a wall collapse
ELIZABETH FUGATE v. TENNESSEE FARMERS INSURANCE COMPANIES (Tenn. Ct. App. December 2, 2009)
Elizabeth Fugate ("Plaintiff") had a homeowners insurance policy issued by Tennessee Farmers Insurance Company ("Defendant"). In April 2007, a retaining wall on Plaintiff's property collapsed. Defendant denied the claim asserting, among other things, that the collapse was caused by built up water pressure and that the retaining wall had been defectively constructed. Defendant asserted that both of these causes of the collapse were covered by policy exclusions.
Following a trial, the Trial Court determined that the retaining wall had been properly built and there was insurance coverage pursuant to the policy. The Trial Court entered a judgment in favor of Plaintiff for $18,680. We conclude that the Trial Court improperly considered personal knowledge which he possessed when deciding this case. Accordingly, we vacate the judgment and remand this case for a new trial before a different trial judge.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/fugatee_120209.pdf
Elizabeth Fugate ("Plaintiff") had a homeowners insurance policy issued by Tennessee Farmers Insurance Company ("Defendant"). In April 2007, a retaining wall on Plaintiff's property collapsed. Defendant denied the claim asserting, among other things, that the collapse was caused by built up water pressure and that the retaining wall had been defectively constructed. Defendant asserted that both of these causes of the collapse were covered by policy exclusions.
Following a trial, the Trial Court determined that the retaining wall had been properly built and there was insurance coverage pursuant to the policy. The Trial Court entered a judgment in favor of Plaintiff for $18,680. We conclude that the Trial Court improperly considered personal knowledge which he possessed when deciding this case. Accordingly, we vacate the judgment and remand this case for a new trial before a different trial judge.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/fugatee_120209.pdf
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