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August 23, 2011 In Estate Planning

Law FAQ: Why would I want a revocable living trust?

Law FAQ: Why would I want a revocable living trust?

Contrary to what you’ve probably heard, a will may not be the best plan for you and your family. That’s primarily because a will does not avoid probate when you die.  A will MUST be validated by the probate court before it can be enforced, and the probate process is part of the public record (thus potentially airing your family’s personal financial details), can be extremely costly, burdensome, potentially divisive to the family, and consume considerable time and energy at precisely the time you are trying to deal with the loss of your loved one.

Also, because a will can only go into effect after you die, it provides no protection if you become physically or mentally incapacitated.  So a court could easily take control of your assets before you die – a concern of many elderly people and their families.

Fortunately, there is a simple and proven alternative to a will – the revocable living trust.  It avoids probate and lets you keep control of your assets while you are living, even if you become incapacitated, and also after you die.

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August 22, 2011 In General

Law FAQ: What are the duties of landlords under Tennessee law?

Law FAQ: What are the duties of landlords under Tennessee law?

A frequent question that clients ask is what obligations does their landlord owe to them.  Tennessee has adopted an act referred to as URLTA (“Uniform Residential Landlord Tenant Act”) that is limited to certain counties in Tennessee, including Davidson and Shelby counties, and that only applies to residential leases.  While URLTA includes many detailed provisions, the most common problems stem from inadequate maintenance by landlords.

Under URLTA, a landlord must do the following:

  • Comply with requirements of applicable building and housing codes materially affecting health and safety;
  • Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
  • Keep all common areas of the premises in a clean and safe condition; and
  • In multi-unit complexes of four (4) or more units, provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste from common points of collection.

Tenants should also note that URLTA allows the landlord and tenant to make a written agreement where the tenant agrees to perform specified repairs, maintenance tasks, alterations, and remodeling.  While such an agreement cannot be made by the landlord to escape the above obligations, it does allow the tenant to have a degree of control over how such maintenance is performed.

If your landlord fails to do any of the above, you should immediately give him/her written notice of the URLTA violation.  Depending on how your landlord responds, you should then consider contacting an attorney for legal guidance.  There are various remedies available to tenants when landlords fail to meet the above obligations.  Our firm handles a wide variety of such issues.  If you feel that your landlord has violated URLTA, please give us a call.

To read find out more about URLTA, its provisions can be found in T.C.A. § 66-28-101 et seq.

August 19, 2011 In Auto Accident, Civil Litigation, Personal Injury

What is uninsured motorist coverage, and how much do I need?

What is uninsured motorist coverage, and how much do I need?

Under Tennessee law, a driver is required to maintain liability insurance to cover any damages that the driver might cause in a car wreck or related accident.  That way, innocent victims are protected. Unfortunately, though, the minimum legal limit required under Tennessee law for liability coverage is only $25,000 — which is extremely low.  A car wreck can easily exhaust $25,000 in coverage.  And, of course, many drivers choose to violate the law by not carrying any auto insurance at all.  We see it all the time here in Memphis. This is why you need uninsured motorist coverage or “UM” coverage.

What happens if I get hit by a driver with little or no liability insurance?

This is where your own uninsured motorist coverage or underinsured motorist coverage would kick in to protect you.

In insurance lingo, uninsured/underinsured motorist coverage is typically referred to as “UM coverage.”  UM coverage is included as part of your own liability policy, and it is usually the same amount as your liability coverage.  So, if you have $50,000 in liability coverage, then you also have $50,000 in UM coverage.  The UM component of your policy essentially makes up the difference for any deficiency in the liability coverage of the negligent driver.

But there’s a catch:  UM coverage is only available to the extent your own policy limit is greater than the policy limit of the negligent driver in the auto accident.

Examples of How Uninsured Motorist Coverage Works

Example 1:  Our client suffered spinal injuries and a broken pelvis in a car crash requiring significant surgeries and medical treatment.  The negligent driver only had $50,000 in insurance coverage, but fortunately, our client carried $250,000 coverage of her own.  We were therefore able to negotiate a total settlement of $250,000 (the first $50,000 from negligent party’s insurance company and the remaining $200,000 from our client’s own insurance company).  

Example 2:  Our client was partially paralyzed in a car crash. Unfortunately, the negligent driver only had $25,000 in liability insurance coverage, and the client only had $50,000 herself.  As a result, the client was only able to recover a total of $50,000 ($25,000 from negligent party’s insurance company plus an additional $25,000 from her own insurance company).  The negligent driver had no assets to pursue.

Review your insurance policy today and check your coverage.

The examples above highlight a very important LESSON.   While it may be tempting when buying your own insurance to choose the cheaper option of low liability limits, you must remember that you are not just choosing liability protection for others, or making a risk calculation about whether you think you are a safe driver who may never  cause an accident or need liability coverage.  Indeed, when choosing your coverage limits, you are — in effect — also choosing the insurance limits that will cover your own family if a potential UM coverage situation occurs where an uninsured driver negligently crashes into you or another member of your family.  In other words, low liability limits may seem like a bargain until someone with little or no insurance causes a catastrophic injury to you or someone in your family.  Often, the marginal price for an increase in coverage is quite minimal.  And well worth it!

If you need a car accident lawyer

If you’ve been in a car crash, even relatively minor injuries can be overwhelming. Medical treatment can be  expensive, and injuries often result in lost wages. We would be honored to review your case free of charge.  Please either submit an online request for a Free Case Review, or call to speak with one of our car accident lawyers at 901-372-5003.

August 18, 2011 In Estate Planning, General

Law Talk: A Conservation Easement Can Save You Thousands in Taxes

Law Talk: A Conservation Easement Can Save You Thousands in Taxes

In 2010, Congress extended the enhanced tax deduction for Conservation Easement Donations (“CEDs”), but only for a limited time.  This provision is a real gem for anyone owning a piece of undeveloped land.  But you must act quickly.

CEDs allow landowners to create and grant a property easement to a land trust or other non-profit and deduct the value of the easement form their income taxes, all while maintaining full control and ownership of the property.  The amount of the deduction is determined by the decrease in value of the property from before the easement to after.

Example:   Farmer John owns 100 undeveloped acres near a growing town.   John decides to donate a conservation easement to ABC Land Trust.  The easement simply restricts John from developing the property into residential or commercial development, which he never intended to do anyway.  Essentially, John and his family and his heirs can still farm, hunt, fish, ride ATVs and otherwise enjoy the outdoors on the land as they had always planned.  Indeed, the great part is that John still owns and controls his land.  He can even still sell the land as encumbered by the easement.  He has only donated the right (and the value associated with the right) to development the land.

So what does John get for the donation?   He gets an income tax deduction equal to the value of the donation, which is determined by comparing the appraised value of the land with development rights vs. the appraised value of the land without the development rights.  For example, if his 100 acres of developable land was worth $1 million dollars, but the land – as restricted by the easement prohibiting future development – would be worth $100,000, then John would get a tax deduction of $900,000!

Moreover, the recent Congressional legislation allows individuals to spread out the value of the deduction for up to 15 years.

This is just an overview of CEDs.   Each situation is unique, and landowners should consider taking advantage of this amazing tax deduction.  While Congress may ultimately extend the time period to take advantage of this tax strategy, the legislation is currently expected to expire on December 31, 2011.

August 18, 2011 In Estate Planning, General, Medical Malpractice, Personal Injury

Patterson Bray — Law FAQ Series: Submit Your Legal Questions!

Patterson Bray — Law FAQ Series: Submit Your Legal Questions!

In thinking about how we might better serve our friends, clients, and prospective clients seeking reliable information on the web about Tennessee law, we decided to start a new series called Law FAQ (Frequently Asked Questions).  Similarly, we will have periodic blog posts regarding current legal news or informative topics called Law Talk.

Using “Question & Answer” format, we will provide a 30-45 second shot of useful information a few times each week.  Sample topics may include personal injury, business law, construction law, commercial litigation, negligence, medical malpractice, technology, estate planning, auto accidents or car wrecks, insurance law, asset protection, civil rights, brain injury, wrongful death, hospital negligence, nursing home abuse, pharmacy error, workers’ compensation, probate, charitable planning, and trusts.  See a sample Law FAQ here.

We also want this series to be interactive, and so we invite you to submit questions or suggested topics by filling out the Contact Form here and including “Law FAQ” in the Subject/Inquiry box.  Please be assured that your privacy is paramount, so you can be confident that we will not include any names or any identifying details or information when posting about a particular question or topic.  Further, while we may not have the space to answer every specific question, we will do our best to cover in a general way any topics that are submitted.

We also welcome your thoughts and feedback in the Comments section below any of the posts on the blog.

We hope you will enjoy Law FAQ and Law Talk series.  You can easily follow the series by adding our blog address to your Google/RSS feeder, or you can follow along on Facebook by clicking here and then hitting the “Like” button.  You can also keep up with the series on Twitter by clicking here and then hitting the “Follow” button.

We hope you won’t necessarily need all of the information included in the Law FAQ series, but we hope that you will be able to pick up some interesting and valuable information along the way.

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Patterson Bray serves the communities of Memphis, Cordova, Bartlett, Germantown, Collierville, Millington, Southaven, Shelby County, Oakland, Tennessee, Nashville, Brentwood, Franklin and surrounding areas.
August 15, 2011 In General

Memphis-Shelby County Schools — See the Judge’s Order for Yourself

Memphis-Shelby County Schools — See the Judge’s Order for Yourself

The Order issued by Judge Samuel “Hardy” Mays in the local schools’ case has — with good reason — captured the attention of the public and the media alike during the past week.

We’ve all been subjected to countless media reports describing and analyzing the Order — What does it say?  What does it mean?  Who won?  Who lost?  What happens next?

I’ve read lots and lots of opinion.  What I haven’t seen, though, are many links in the media to the Order itself.

Mindful of that, I wanted to pass a copy of the document so that you can read the Order for yourself, make your own analysis, and draw your own conclusions.

Microsoft Word – FINAL Order Deciding Case – FINAL

Warning:  The Order is long (146 pages).  However, it is well organized and very well written — an easy read insofar as legal opinions go.

I’d be interested to know what you think.  I may offer some of my own observations after further reflection.

August 11, 2011 In Medical Malpractice

Law FAQ: What is medical malpractice?

Law FAQ: What is medical malpractice?

What is medical malpractice?

Medical malpractice occurs when a patient is injured as a result of medical treatment that falls below the acceptable standard of care within the medical community. Medical Negligence is another term for medical malpractice. Most medical malpractice claims result from one of the following:

  • Failure to properly diagnose an injury or condition in a timely manner.
  • Failure to provide proper treatment once a diagnosis is made.
  • Failure to obtain informed consent prior to a medical procedure.

Who can commit medical malpractice?

Medical negligence claims can be asserted against a doctor, hospital, nurse, clinic, chiropractor, dentist, pharmacist, nursing home, or other health care provider.

What must be proved in a medical negligence case?

To prevail in a medical malpractice suit, a patient must prove:

  • The recognized and accepted standard of care in the local medical community, or in a similar medical community.
  • That the healthcare provider failed to act in accordance with the applicable standard of care (referred to as a violation or “breach” of the standard of care).
  • That as a result of the breach of care, the patient suffered an injury or damage that would not have otherwise occurred.

The applicable standard of care, and the breach of that standard, must be proved by expert testimony from a qualified healthcare professional in the same field who has practiced in Tennessee or in a contiguous state within 1 year immediately preceding the injury. As one might imagine, it can be very difficult to find a competent and credible doctor who is willing to testify against another doctor. And securing such an expert can be very expensive. Consequently, substantial claims and injuries are often required to make a case economically feasible and worthwhile to pursue.

Our lawyers have access to a wide network of doctors and professionals willing to review cases to determine their merit, and we have experience handling substantial medical malpractice claims.  To learn more about our firm’s approach to medical malpractice cases, click on How We Handle Medical Malpractice Cases.

August 10, 2011 In Medical Malpractice, Personal Injury

Law FAQ: How long do I have to file a legal claim?

Law FAQ: How long do I have to file a legal claim?

The deadline for filing a lawsuit is referred to as the statute of limitation.  The length of time you have to file a lawsuit under Tennessee law depends on the nature of the underlying claim:

Personal Injury — Under Tennessee law, a personal injury claim must generally be filed within 1 year from the date of injury.  Personal injury claims include things like car wrecks, slip and falls, and medical malpractice.  There are some situations where the 1 year deadline can be extended — for example, where an injury cannot reasonably be discovered within the statute of limitation, or where the injury occurs to a minor — however, such exceptions are rare and can be very tricky.  The determination of the precise time period can be complicated, and therefore you should contact a lawyer if you you have a personal injury claim to avoid the risk that you miss an important deadline.  (Other claims that are likewise subject to a 1 year statute of limitation include many state and federal civil rights claims, claims for legal malpractice, violation of the Tennessee Consumer Protection Act, and claims for breach of fiduciary duty by a corporate officer.)

Important Note: the “date of injury” for purposes of calculating the 1 year is the date of the incident leading to the injury — not necessarily the date the injury blossoms into it full consequence.  Example: a car wreck occurs and the victim initially survives but eventually dies in the hospital 5 days later.  The date the statute of limitation begins to run on the wrongful death claim is NOT the date of the death, but rather the date of the auto accident.

Defective/Dangerous Product — Under Tennessee law, a products liability claim must generally be filed within 1 year from the date of injury, but in no event can it be later than 10 years from the date of the first purchase of the product for use or consumption. Determination of the exact time period can be confusing, and you should contact a lawyer immediately if you believe you have been the victim of a defective or dangerous product, or you may risk forfeiting your legal rights.

Property Loss — Generally speaking, a claim for property-related losses must be filed within 3 years.   This would include, for example, not only physical damage to property (damage to vehicle, house fire, etc.) but also the loss of property or funds as the result of fraud, misrepresentation, conversion, or unlawful interference with contract.

Breach of Contract — Under Tennessee law, a breach of contract claim must be filed within 6 years, unless the contracting parties have agreed in their contract to a shorter deadline.   Breach of contract claims would include, for example, failure to perform agreed-upon services, failure to deliver goods purchased, or failure to make payment.  One notable exception to this rule, however, are breach of contract claims as they relate to the improvement of property (e.g. claims against building or home improvement contractors).  The statute of limitation for such claims is only 4 years from the date of substantial completion of the improvements.

Please note that these deadlines are the generally applicable deadlines for garden variety-type claims.  It would be virtually impossible to attempt to catalog each and every type of claim, and one should be mindful that there are specific statutes of limitation (and potential exceptions) that may apply to particular circumstances and claims.  The most prudent course of action is to contact a lawyer immediately if you think you have a claim that requires investigation and/or legal action.

Stay tuned for more updates/FAQs.

August 9, 2011 In Personal Injury

Law FAQ: I was injured in an accident. What amount of damages can I expect to recover?

Law FAQ: I was injured in an accident. What amount of damages can I expect to recover?

Based on some of the TV commercials and urban myths out there, people are led to believe that if they or a loved one has been injured in an accident that they can expect an easy road to a big, fat check.    Don’t believe everything you hear, though, because that simply is not the case.

If you are injured as the result of the negligence of another person or company, you ARE indeed entitled to a fair recovery for your losses — both economic and non-economic losses.  However, insurance companies and adjusters aren’t in the business of just giving away money willy-nilly.  And neither are juries.

If you have a serious injury, there’s nothing that’s “easy” about the process at all.

Unless you want a quick-and-dirty, low-ball settlement you hear about on TV, then you should consult an experienced attorney who will evaluate the facts, determine the strength of your claim, and then actually do the hard work that it takes to secure a favorable and fair outcome, including negotiating with your health insurance carrier for the inevitable subrogation claim against your recovery.

As for the amount of damages that might be recovered, the components of an injury claim include such things as lost wages, lost future earning capacity, medical expenses (past and future), emotional distress, loss of services or companionship of a loved one,  physical/mental impairment, and pain and suffering.  The actual amount varies from case to case depending primarily on the nature and extent of the injuries and damages, as well as the skill and experience of the attorney who pursues the claim.

There is no exact formula to determine a precise figure, but factors that bear on an award of damages include such things as:  the type of injury, the type of medical treatment, the length of medical treatment, the cost of medical treatment, the part(s) of the body injured, the permanency of the injury, your familial status, your age, your prior medical problems (if any), the egregiousness of the conduct of the offender, any past history of similar incidents, your willingness to take the case to trial, the availability insurance coverage, and the size of awards and settlements in similar cases.

Furthermore, the Tennessee legislature this past session passed caps on the amount of the “non-economic” damage component that can be recovered.  Quality of life damages (i.e. pain and suffering, loss of companionship, etc.)  are limited to $750,000, although the law creates exceptions in cases that involve intentional misconduct, destruction of records or activity under the influence of drugs or alcohol.   The cap  rises to $1 million for catastrophic losses defined as conditions involving paraplegia, quadriplegia, amputation, especially severe burns, or the wrongful death of a parent leaving minor children.  These caps would not apply, however, to economic damages such as lost wages and medical expenses, for example.

Stay tuned for more FAQs.

August 8, 2011 In General

Patterson Quoted in Memphis Daily News on Court Clerk Positions

Patterson Quoted in Memphis Daily News on Court Clerk Positions

Attorney Chris Patterson was quoted in an article by Bill Dries today in the Memphis Daily News concerning former efforts by the Metro Charter Commission to consolidate and/or streamline the various elected court clerk positions in Shelby County.

“A lot of ideas were kicked around. But then we kind of quickly realized that we were fairly restricted on any proposed changes that could be made, even if there was some opportunity for some greater efficiency,” said Chris Patterson, who headed the group tasked with making recommendations on judicial offices. “Once the charter’s voted down, you never know if you really could have done it or not. Until you try to do it and somebody challenges it, you don’t know if it’s going to hold up. We tried to take the approach … to provide as much certainty as possible.”

The article comes in the wake of the suspension of General Sessions Court Clerk, Otis Jackson, in connection with allegations of improper fundraising.