April 6, 2016 In Auto Accident, Civil Litigation, Personal Injury

Why You Don’t Hear About Liability Insurance in a Jury Trial

Did you know that during most Tennessee state court jury trials, you will never hear the word “insurance?” That’s because 99% of the time, evidence of liability insurance is not admissible under the Tennessee Rules of Evidence.

Tennessee Rule of Evidence 411 provides that:

Evidence that a person was or was not insured against liability is not admissible upon issues of negligence or other wrongful conduct. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Rationale

Rule 411 is based on the notion that disputes should be resolved based on the conduct of the people involved, not based on whether they have insurance.

Insurance Jury Instruction

Not everyone has insurance. Some people have some insurance, but not enough. Sometimes a person will have purchased an insurance policy only to find out that it won’t apply to pay damages in certain kinds of lawsuits. Sometimes the Judge will issue a jury instruction in Tennessee to help guard against improper consideration of insurance. When the instruction is used, the Judge tells the jury that:

[W]hether or not insurance exists has no bearing upon any issue in this case. You may not discuss insurance or speculate about insurance based on your general knowledge. There are sound reasons for this rule. A party is no more or less likely to be negligent because a party does or does not have insurance. Injuries and damages, if any, are not increased or decreased because a party does or does not have insurance.

Tennessee Pattern Jury Instruction – Civil 1.05.

Insurance Information Is Still Useful

Just because we can’t use evidence of insurance in jury trials doesn’t mean we can’t make good use of the information. Knowing whether parties are insured, and to what extent, helps us develop an efficient strategy for resolving a dispute, and it helps us give sound advice to our clients who are wondering if they should settle a claim or file a lawsuit.

Need help settling a claim with a liability insurance carrier?

We can help you. Patterson Bray has offices in Memphis and Nashville Tennessee. Call us at 901-372-5003 or email us here.

April 5, 2016 In Auto Accident, Civil Litigation, Personal Injury

It’s Prom Season: Liquor Liability for Allowing Minors to Drink Alcohol

What You Need to Know About Prom Season

Since it’s Prom Season, let’s talk about liquor liability for social hosts.

Let’s say you’re one of those parents who thinks, “teenagers are going to drink, so I’m going to allow my kids to drink in my home so they won’t do it somewhere else.” Your teenager asks you if he can have a “Prom After-Party” at your home with a few friends. You agree. You also agree that they can “drink a little.” You tell your son that no one will be allowed to drive.

Now consider this, let’s say your daughter was in a car accident on her way home from Starbucks after her Prom. Other than coffee, she hadn’t had a drop to drink. The other driver was an underage intoxicated teenage girl who had just left a “Prom After-Party” at a private home where alcohol was served. She disregarded the “no one is driving home” rule that the parents set for the evening.

So, what’s the law on parents who allow minors to drink in their homes?

Social Host Liquor Liability

In general, if you host a party and serve free alcohol to your guests, you’re not going to be liable if they become intoxicated and injure someone on the way home. Tennessee Liquor Liability statutes are designed to apply mainly to bars, restaurants, and liquor stores, so there’s a distinction between selling alcohol and otherwise providing it. Tenn. Code Ann. 57-10-102. However, as is usually the case, there are exceptions, meaning that even if you don’t sell alcohol, you could still become liable under certain circumstances.

Serving Alcohol to Minors

If you have a party at your home and serve alcohol to a minor who becomes intoxicated, you could be held liable if that minor causes injury or damage to a third person. You could even be liable if you don’t provide the alcohol, but you know the minors are drinking it. This is because, in some cases, the law considers an adult host to be in a “special relationship” with a minor guest, such that the adult host owes a duty to ensure the safety of the minor guest, as well as to keep the minor from driving while intoxicated.

Liquor Liability Law in Tennessee is Complex

It is important to contact an attorney as soon as possible if you have a potential Liquor Liability case. While underage drinking is certainly illegal, civil liability implications are extremely fact-intensive and liability varies from case to case.

Patterson Bray has offices in Memphis and Nashville TN. If you have a question about liquor liability, the Dram Shop Act, or social host laws in Tennessee, please call us at 901-372-5003 or email us here.

Example of a Liquor Liability Case Involving Minors

For an example of a liquor liability case involving minors and alcohol, read the Biscan v. Brown case.

March 31, 2016 In Business Litigation, Civil Litigation

The Other Side is Lying. Can I Sue for Defamation?

“Can we sue them for defamation?” That is a question we receive very frequently from both Plaintiffs and Defendants we are representing in pending litigation. Typically, the question is a reaction to reading or hearing something alleged in the lawsuit, whether in a complaint, answer, discovery responses, or during courtroom or deposition testimony. The client asking that question usually feels that his or her integrity is being questioned, is very upset, and wants to know if he or she can “counter-sue.” In the context of litigation, the answer is no. Let’s explore why.

What is Defamation?

To win a defamation case, you must prove that:

(1) Someone “published” a statement about you. (“Publication” is a legal term of art meaning the communication of the subject defamatory matter to a third person.)

(2) The publication occurred with knowledge that the statement was false and defaming to you, or with reckless disregard for the truth, or with negligence in failing to ascertain the truth.

(3) Your reputation was injured. Damages from false or inaccurate statements cannot be presumed. Actual damages must be suffered and proved.

Brown v. Christian Bros. Univ., 428 S.W.3d 38 (Tenn. Ct. App. 2013). A statement is not defamatory just because it is annoying, offensive or embarrassing. Rather, the statement must be a serious threat to your reputation. Defamation includes both libel and slander. Libel is written defamation. Slander is spoken defamation.

But wait . . . there’s the Judicial Proceeding Exception

Statements made in the course of judicial proceedings which are relevant and pertinent to the issues cannot be used as a basis for a libel action for damages. This is true even if the statements are known to be false or even malicious.

The policy behind this rule is the paramount importance of access to the judicial process and the freedom to institute, defend, and participate in a lawsuit without fear of being sued for defamation. This exception in Tennessee may leave a wronged individual with no remedy, but our courts have determined that the rights of the individual must be sacrificed for the public good. Desgranges v. Meyer, No. E2003-02006-COA-R3CV, 2004 WL 1056603, at *5 (Tenn. Ct. App. May 11, 2004).

What should I do if I think I have a defamation, libel, or slander case?

Call a lawyer to discuss your case as soon as possible. The deadline for filing a slander suit is 6 months from the time the words are spoken. The deadline for filing a libel suit is 1 year after the words are written. Gathering and preserving your evidence is crucial. Remember you must prove not only that someone defamed you, but that you suffered actual damages.

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003

Visit our website to learn why we’re not your everyday law firm.

We have offices in Memphis and Nashville and represent clients in Lakeland, Arlington, Cordova, Bartlett, Germantown, Collierville, and many other areas throughout Tennessee and Mississippi.

March 29, 2016 In Business Litigation, Civil Litigation, Contracts, Estate Planning, General, Government

Top 8 Ways to Save Money on Attorney Fees

Let’s talk about attorney fees. When confronted with a legal claim or issue, some people simply want to “turn it over to the lawyer and be done with it.” Others prefer a more hands-on approach, and they prefer to work closely with legal counsel. Some clients want to resolve a matter as quickly and cost-efficiently as possible, while others desire vindication and want nothing short of a judicial ruling or jury verdict. However, there is one thing that all clients probably agree on. The lower the attorney fees, the better.

How do you keep legal fees in check?

Make sure your goals and legal strategy are clear. Lawyers work for clients, and attorney fees are based on the amount of work the lawyer performs for the client. Clear communication and responsiveness from both the lawyer and the client is critical. Above all, you must make sure you communicate clear goals, and then to listen and understand what actions your lawyer is suggesting.

What can I do to save money on attorney fees?

There are also a few things you can do to reduce attorney fees, legal costs, and expenses:

(1) Come prepared. Each time you meet with your lawyer, anticipate questions and come prepared with information. Bring a timeline, notes, a list of witnesses and contact information, and relevant documents. Don’t make your lawyer beg for the information he or she will need in order to best represent you.

(2) Obtain, review and organize your documents. The overwhelming majority of cases can be boiled down to a few key documents. You don’t want to pay your lawyer to obtain documents you could get yourself. Nor do you want to pay a lawyer to “find a needle in a haystack” or to review unorganized or unnecessary documents searching for one relevant piece of information.

(3) Promptly do what your lawyer asks you to do. Respond quickly to information and discovery requests from your attorney. Failure to do so drives up costs immeasurably. It can lead to unnecessary communications between opposing lawyers, and between clients and lawyers, and often leads to unnecessary motions being filed by opposing counsel.

(4) Stay on top of your case. Keep copies of all papers, letters, and pleadings. Take notes when you talk to your attorney. Keep yourself informed about your case. You’d be shocked at how often clients call and/or ask for meetings to re-review things they should already know, or to get copies of papers they already have.

(5) Be an “information gatherer.” This one is especially true for companies and small businesses. You know your business, employees, and contacts better than your lawyer. Utilize your knowledge and relationships. You can often obtain information and documents much more easily and cost efficiently than your lawyer can.

(6) Utilize your lawyer’s assistant. Many of your questions and phone calls can be directed to your lawyer’s assistant, most of which is not recorded as billable time. For example, questions about scheduling, getting copies of documents, or coordinating meetings and events can easily be handled by a legal assistant much more cheaply than talking to the lawyer every time.

(7) Understand the difference between legal advice and counseling. It is obviously critical that you communicate effectively with your lawyer, but keep communications to the point. Oftentimes clients complain or vent about the opposing party, the unfairness of the situation and/or the legal process, or the tactics of the other lawyer. It’s perfectly okay if you want to pay your attorney to be a sympathetic ear for you, but understand that you pay for your attorney’s time, and that you can very likely get a sympathetic ear elsewhere for free.

(8) Compromise. Litigation is expensive. Realize that “wins” come in varying shapes and sizes, and that negotiating from a position of strength borne out of effective and thorough preparation can lead to the best long-term outcome. Indeed, a lengthy lawsuit may not be the best long-term strategy even though you think might have a slam dunk case at trial two years from now. Winning the battle isn’t worth losing the war. Smart and tactical compromise can be a virtue, particularly when taking into account both the direct and indirect costs of litigation.

Patterson Bray has offices in Memphis and Nashville, Tennessee. Call us today at 901-372-5003.

March 24, 2016 In Auto Accident, Civil Litigation, Personal Injury, Uncategorized

Injured by a Drunk Driver?

The Sad Truth About Drunk Driving

Chances are, you either have been or will be the victim of a drunk driver in your lifetime. We know that intoxicated drivers cause personal injuries and deaths every day, but they also cause property damage. Even if you are not injured, your property may be. For example, drunk drivers often cause damage to other cars, houses, businesses, guardrails, signs, yards, and landscaping.

Drunk Driving Statistics

What are the odds that you have been or will be affected by a drunk or intoxicated driver? Take a look at these harrowing statistics:

Every 2 minutes, a person is injured in a drunk driving crash.
On average, 2 in 3 people will be involved in a drunk driving crash in their lifetime.
The rate of drunk driving is highest among 26-29 year olds at 20.7%.
In 2014, 9,967 people died in drunk driving crashes. That’s one every 53 minutes. Another 290,000 were injured in drunk driving crashes.
Drunk driving costs the U.S. $132 Billion a year.
In 2010, drunk driving alone accounted for 18% of the total economic loss from motor vehicle crashes, costing the economy as much as $199 billion in direct and quality-of-life losses.

What does Drunk or “Intoxicated” Mean?

Tennessee law provides that a person is intoxicated when his or her physical and mental abilities are impaired as a result of drinking or drug use. The impairment must be to the extent that the person can’t act with ordinary and reasonable care like a sober person would under similar circumstances.

Can a Drunk Driver or Person Be Negligent?

Yes! A drunk person is held to the same standard as a sober person. Being intoxicated is no excuse for failure to act as a reasonably careful person.

We Represent Victims of Drunk Driving.

As a victim, you need a lawyer with the experience, drive, and knowledge necessary to compete with the insurance companies who are handling your claim. Otherwise, you’ll end up being a victim twice, and you might not even realize it until it’s already too late. We are victim attorneys and we represent people who have been injured or damaged by drunk or intoxicated drivers. If you need help, we have offices in Memphis and Nashville Tennessee. Please call us at 901-372-5003 or email us here.

March 23, 2016 In Estate Planning, General

Can I Write My Own Will? Is a Handwritten Will Valid?

In some cases, a handwritten Will can be considered valid and admitted to Probate Court. Under Tennessee law, a handwritten Will is called a “Holographic Will.” It is not necessary that the document be witnessed, but all the material provisions and the signature must be in the Testator’s handwriting.

What does “Testator” Mean?

The testator is the person who is making the Will.

How Do You Prove a Valid Handwritten Will?

The Testator’s handwriting must be proven by 2 witnesses. Before petitioning the Probate Judge to admit the document to Probate Court as a valid Last Will and Testament, the Executor will likely have to find 2 people who can testify that the material provisions and signature are in fact written in the Testator’s handwriting.

Why We Don’t Advise Handwritten Wills

While writing your own Will seems like a simple solution to making sure your assets go where you want them to go after your death, there are many pitfalls. For example:

You may mistakenly believe that the disposition of certain assets will be governed by the terms of your handwritten Will.
A handwritten document is more easily lost.
A handwritten Will requires additional proof to be admitted to Probate Court.
When you handwrite a Will, you are likely to amend or rewrite that Will in the future. You are more likely to leave multiple handwritten documents that contain conflicting provisions.
Pertinent provisions may be left out of a handwritten Will, including provisions relating to the disposition of assets or provisions that may ease the burden of administrating the Estate.
Many handwritten Wills are not properly executed and are unable to be admitted to Probate Court.

A Will drafted by a Probate Lawyer is likely to more clearly convey your wishes so that it can be correctly interpreted by your Executor and the Probate Court Judge after your death.

Need a Will? Call a Probate Lawyer.

If you would like to speak with a Probate Lawyer about a Will or about how to make sure your wishes are carried out after your death, give us a call at 901-372-5003 or email us today. With offices in Memphis and Nashville, you can also visit our website to learn more about our attorneys and the work that we do for our clients.

March 17, 2016 In Civil Litigation, Personal Injury

Waivers and Releases Do Not Eliminate Liability for Gross Negligence: Ask the Injury Lawyer

Tennessee Law on Contracting Away Liability

Chances are you’ve signed a Waiver or Release of Liability. Maybe you were going whitewater rafting or visited an indoor trampoline or “bouncy house” park. Businesses providing recreational activities generally require you to sign a form with lots of fine print before you can participate. These forms generally absolve the business of liability if you get hurt. Is that legal? Yes. But there’s one thing to remember: In Tennessee, a person or business cannot contract away liability for “gross negligence.” That’s why you need to consult with a personal injury lawyer if you are injured, but someone tells you they’re not responsible because you signed a Release or Waiver.

Tennessee law allows people to enter into contracts that say that ABC will not be liable and that XYZ is “assuming the risk,” including the risk that ABC might commit negligence. However, the law says that such a contract will not protect ABC if ABC is guilty of gross negligence. Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App.1990).

What is Gross Negligence?

What is gross negligence and how is it different from regular negligence? Regular negligence is the failure to use ordinary or reasonable care. Gross negligence involves a higher degree of “bad” conduct and callous indifference to consequences. That’s why Tennessee law won’t allow people to contract away liability for gross negligence. However, it’s harder to prove that someone committed gross negligence. You have to show:

The person committed ordinary negligence, and
The person acted “with utter unconcern for the safety of others, or … with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied . . .” Leatherwood Wadley, 121 S.W.3d 682, 693–94 (Tenn. Ct. App.2003).

Consult with an Injury Lawyer

If you are injured or hurt while participating in a recreational activity, you should consult with a personal injury lawyer. Don’t automatically assume that you can’t recover because you signed a Release or Waiver. A personal injury lawyer can examine the language of any form you signed and can advise you whether you might have a claim.

Need an Injury Lawyer? We can help.

Call Patterson Bray at (901) 372-5003 or email us here. Visit our website to learn more about us and our work. Offices in Memphis and Nashville.

March 14, 2016 In Business Litigation, Civil Litigation, Contracts

Insurance Company Bad Faith? Ask the Insurance Lawyer

What You Need to Know about Insurance Company Claims

The overwhelming majority of insurance claims are fairly handled and paid without complication. But, some are not. While there are a number of reasons why an insurance claim might be denied or why you might not get paid what you think you are owed, one thing is certain in Tennessee: An insurance company must handle your claim in good faith. If you think your insurer is acting in bad faith, consult with an insurance lawyer.

Tennessee Bad Faith Statute

If an insurance company does not act in good faith in handling an insurance claim, then it may be subject to bad faith penalty damages. Tennessee Code Annotated 56-7-105 says that if an insurance company’s refusal to pay a claim was not in good faith, then then the company may be liable for up to 25% of the loss amount, measured by the additional expenses incurred by the policyholder. So, if your loss is $100,000, you could recover up to an additional $25,000 if the insurance company didn’t act in good faith.

What is Bad Faith? What is Good Faith?

Every case is unique and it depends on the circumstances. That’s why you need to consult with an insurance lawyer. As a general matter, it is difficult to prove that an insurance company’s denial of a claim was not in good faith. The policyholder has the burden of proving bad faith and the following principles in Tennessee case law favor the insurance companies:

Delay in settling a claim does not constitute bad faith when there is a genuine dispute as to value, no conscious indifference to the claim, and no proof that the insurer acted from any improper motive.

If an insurance company unsuccessfully asserts a defense and the defense was made in good faith, the statute does not permit the imposing of the bad faith penalty. So, even if the insurance company loses or was wrong, it doesn’t necessarily mean that the company acted in bad faith.

Before joining Patterson Bray, I worked for almost ten (10) years at an insurance defense law firm representing insurance companies. I cannot recall a single time that I was not successful in eliminating the bad faith portion of a lawsuit before the case made it to trial. I would add that, in most cases, the bad faith claim was simply thrown into the lawsuit, as if an afterthought. I say these things to stress that it’s an unusual case when the bad faith penalty is actually applicable, but that does not mean you don’t have a claim for bad faith. Ask an insurance lawyer to be sure.

Unfair Claims Settlement Act

Tennessee also has what is referred to as the Tennessee Unfair Trade Practices and Unfair Claims Settlement Act. While the Act does not create a private right of action, it does create standards and rules that insurance companies must follow when handling claims. The Act provides at least some level of guidance concerning activities that might be considered to evidence bad faith.

What to Do if You Suspect Bad Faith by Your Insurance Company

Read your insurance policy. Make sure that you are in compliance with the “Duties After Loss” section.
Keep good and organized records.
Ensure that all of your communications to the insurer are kind and courteous and that they exhibit cooperation.
Keep a timeline of relevant communications and events that support an allegation of bad faith.
Get an insurance lawyer involved sooner rather than later. Insurance policies are full of deadlines and there are specific procedures that are important in preserving a claim of statutory bad faith against an insurer.

Need an Insurance Lawyer? We can help.

Call Patterson Bray at (901) 372-5003 or email us here.

Visit our website to learn more. Our Memphis office is conveniently located at 8001 Centerview Parkway, Suite 103 Memphis, TN 38018, near the intersection of Walnut Grove and Germantown Parkway. We accept cases throughout Tennessee and Mississippi, including Memphis, Bartlett, Cordova, and Germantown.

March 10, 2016 In Auto Accident, Civil Litigation, Personal Injury

Should you apologize after a Car Accident? Ask the Personal Injury Lawyer

Some people say “I’m sorry” because they don’t know what else to say in an uncomfortable situation. Others say “I’m sorry” to express sympathy or concern. Some people say “I’m sorry” because they want to apologize for a situation they’ve caused. So, what would a personal injury lawyer tell you about apologizing?

What’s the legal effect of saying you’re sorry?

Suppose you’re in a car accident and it was your fault. Without a doubt, you know the other driver didn’t do anything wrong. You can see that the other car is damaged and the driver appears injured. Should you apologize or admit fault?

Or, what if you’re in an accident but you’re not sure about who was at fault? You can see the other driver is hurt, so like any good Southerner, you go over and instinctively say, “I am soooooo sorry. Are you alright? Do you need an ambulance?” Have you just admitted liability for the car accident?

“I’m Sorry” = Not Admissible to Show Liability

Tennessee Rule of Evidence 409.1 addresses apologies and saying “I’m sorry.” The Rule provides that certain statements and actions reflecting sympathy for an injured person are not admissible at a trial. The Rule is designed to encourage settlements. The underlying theory is that a settlement is more likely if a person is free to express sympathy to the injured person without making a statement that would be considered an admission of liability.

**Statements of Fault are Admissible**

Rule 409.1 only extends to “benevolent gestures” and does not exclude statements of fault. If you are a victim in an accident and someone tells you it was their fault, write down their exact words. This evidence could help your injury lawyer prove liability and can increase your chances of recovering damages. If you tell someone that you were at fault for an accident, then your statement will most likely be admissible as evidence if a lawsuit results.

Moral of the Story

A simple apology can go a long way toward making an injured person feel more comfortable with settling a case rather than filing a lawsuit. People like to receive apologies. Be human. Feel free to say “I’m sorry”, but be careful about statements of fault.

Need a Personal Injury Lawyer?

Call Patterson Bray at (901) 372-5003 or email us here. We have a personal injury lawyer for you. You can also visit our website to learn more about our approach to personal injury work and some of the results we’ve achieved for our clients, with offices in both Memphis and Nashville.

March 9, 2016 In Estate Planning, General

What does my spouse get when I die? Ask the Probate Lawyer.

Many people believe that if you die without a will, that everything passes to your surviving spouse. Did you know that is not necessarily true? Read on to learn more from a probate lawyer about what a surviving spouse is entitled to in Tennessee.

If you die WITHOUT a Will

If you die without a Will, the distribution of your assets will be governed by the Tennessee laws of intestate succession. If you die “intestate,” it means that you die without leaving a Will. This is what will happen if you die without a Will:

If you have a surviving spouse, he or she will receive your entire Estate if you had no descendants at the time of your death.
If you are survived by descendants, your spouse is entitled to either (a) one-third (1/3) of your estate, or (b) a child’s share, whichever is greater.

If you die WITH a Will

Even if you die with a Will that does not include your spouse, he or she will still be entitled to a portion of your assets. Your surviving spouse may take what it called an “Elective Share” against your Estate, which is based on the length of the marriage. There is a sliding scale, but the maximum Elective Share a surviving spouse can take is forty percent (40%) of the net Estate if the couple was married nine (9) years or more.

You Cannot Disinherit Your Spouse in Tennessee

Whether you die with or without a Will, in all but a few rare cases, your spouse will be entitled to a portion of your Estate. Generally, you must be legally divorced from your spouse in order to prevent that person from receiving a share of your Estate.

Other Allowances for Spouses

Other allowances for surviving spouses (which may also apply to minor children) include a $50,000 exemption for personal property, a reasonable allowance for a year’s worth of support according to the previous standard of living, and either the right to the homestead or $5,000 from the proceeds of the sale of the home. In some cases, a surviving spouse might be entitled to certain accounts of less than $10,000 or wages due to the decedent if no formal probate estate is opened.

Need a Will? Need a Probate Lawyer?

Please contact Patterson Bray at 901-372-5003 or email us here if you have questions about leaving a Will, Estate Planning, or Probate issues. We have a team of lawyers ready to help you.