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December 20, 2021 In Contracts, Estate Planning

Do It Yourself Legal Documents Can Cost You Big

Loved ones are fighting a prolonged court battle after the former Zappos.com Inc. CEO, Tony Hsieh, joined a long list of prominent celebrities who died without leaving a Will. As when Prince died without a Will, the court has said the CEO died intestate, the legal term used when someone died without a Will.  But courts can still determine that you died intestate even if you tried to draft your own Will.

We see many cases involving individuals who thought “drafting my own contract” or “drafting my own Will” sounded like a good plan.  There are many reasons you may want to draft your own contracts or create your own Will.  It can be a desire to maintain privacy and control, save money on attorney fees, or simply thinking you don’t have enough assets to justify the costs.  Unfortunately, he pitfalls of drafting your own contracts or drafting your own Will are numerous.

 

Common problems with drafting your own contracts can include:

 

    • Failing to Account for Licensing Requirements – Many industries have specific requirements for licensing that come with specific statutory limitations and consequences. Failing to account for these can result in an unenforceable contract, jeopardize your license, or require you to double pay for services.  https://pattersonbray.com/construction-contract-proper-license/
    • Paying More After the Other Party Breaks the Contract – If someone fails to live up to their end of the bargain, you can take them to court. But you’ll still have to pay your attorney out of pocket, even if you win.  An experienced small business attorney can make sure your contracts give you the best chance of recovering your attorney fees after you win.  https://pattersonbray.com/small-business-tip-contracts-attorney-fees/
    • Failing to Use the “Magic Words” – If you don’t clearly spell out your intentions in a contract, then you run the risk of having a judge decide what your agreement means. Some types of contracts are required to be made in writing for this very reason.  A few types take this a step further and require precise words to be used in order for the contract to be enforceable.  Knowing the different standards can be the difference between your small business’s “big break” and a piece of scrap paper. https://pattersonbray.com/get-it-in-writing-a-handshake-probably-wont-do/

 

Common problems with drafting your own Will can include:

 

 

Do it yourself legal documents come with a cost.  Avoid the dangers of do it yourself legal documents by checking out our team at Patterson Bray for your small business or estate planning needs.  Please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

July 30, 2018 In Business Litigation, Contracts, General

When can a subcontractor file a lien?

When can a subcontractor file a lien?

Under Tennessee law, a subcontractor is considered an indirect lien claimant since he or she typically does not have a contract with the owner of the property. Even though a subcontractor does not have a contract with the owner, he or she might still have lien rights. To determine if a subcontractor has lien rights, you must consider the following: Did the subcontractor contribute to an improvement in real property? Is the improvement part of a residential or commercial project? Has the subcontractor taken the necessary steps to ensure he or she has not lost whatever lien rights he or she may have had?

Improvements

In most situations, this is obvious. The subcontractor has either performed services or delivered materials as part of a construction or renovation project that permanently alters or “improves” the real property.

Residential or commercial property

For subcontractors, Tennessee law treats residential projects and commercial projects differently.

Residential projects

Generally speaking, subcontractors do NOT have lien rights for improvements made to residential property. One exception in which a subcontractor does have lien rights against residential property is when the owner is acting as the general contractor. In that situation, the subcontractor has a direct contract with the owner/general contractor. As an aside, a subcontractor may have a cause of action against an owner that is acting as the general contractor even if their contract is not in writing.

Commercial projects

Subcontractors have lien rights for improvements to commercial property. However, they must follow specific statutory requirements or they risk losing those rights. Subcontractors must send a Notice of Nonpayment to the owner and general contractor to keep their lien rights. Tennessee law has strict requirements for Notices of Nonpayment. Subcontractors must include very specific information and must send their Notice timely otherwise they risk losing their lien rights. After sending a timely Notice of Nonpayment with all the required information, subcontractors must then send a copy of their Notice of Lien to the owner and general contractor too. Once both the Notice of Nonpayment and Notice of Lien have been timely sent, a subcontractor can file his Notice of Lien.

Enforcing a valid lien

To enforce a valid lien claim, a subcontractor must file his or her lawsuit within ninety (90) days of their Notice of Lien. If they fail to file an appropriate lawsuit within that statutory time frame, he or she will lose his or her lien rights.

If you are dealing with a general contractor that has not paid, you need a construction lawyer Memphis trusts to help you through the process.

December 19, 2017 In Business Litigation, Civil Litigation, Contracts

Get Specific! You Must Mention “FEES” in Your Attorney Fee Provisions

Tennessee Requirements for Attorney Fee Provisions

As the business lawyer Memphis TN  trusts when it comes to contract negotiation and drafting, one piece of simple legal advice we frequently give our small business clients is to always include attorney fee provisions in your contracts and routine business forms. Why? Because if you don’t have such a provision and you end up in litigation, you’re on the hook for your own attorney fees and legal expenses even if the breach of contract, or the resulting litigation, isn’t your fault.

It has always been the case that a contractual provision allowing for the recovery of attorney fees must be specific. However, just last month, in Nyrstar Tennessee Mines-Strawberry Plains, LLC v. Claiborne Hauling, LLC, the Tennessee Court of Appeals went further to reinforce this principle by making clear that attorney fee provisions must specifically invoke the magic words “attorney fees.”   The Court held that it is not enough simply to provide recovery of “costs,” “expenses” or even “legal expenses” – all of which the Court held was simply not specific enough to permit recovery of attorney’s fees.

 In Nyrstar, the plaintiff won at trial on its breach of contract action against the defendant and the judge awarded the plaintiff $116,073.43 in damages. After winning the case, the plaintiff then sought attorney’s fees of $106,779.50 and expenses of $2,982.12 pursuant to the attorney fee provision in the applicable contract. The specific language of the contract in Nyrstar was as follows:

The Customer must pay Nyrstar all costs and expenses incurred by Nyrstar in connection with enforcing its rights against the Customer under an Agreement including legal expenses and other costs incurred in recovering monies owed by the Customer to Nyrstar.

The trial court awarded the plaintiff its expenses, but refused to award the plaintiff its attorney’s fees, despite the contract language providing for the recovery of “legal expenses.” The trial court stated:

[t]he plaintiff Nyrstar’s language does not use the term “fees.” It uses “expenses,” which has been found to be inadequate. Merely providing for the “recovery of ‘costs and expenses’” is insufficient to reach a contractual right to recover attorney’s fees.

(Emphasis added). The Tennessee Court of Appeals upheld this decision. The Nyrstar case means that you should pull out your contracts and regular business forms, and then call us today to make sure that the language you are using in your attorney fee provisions is correct. After all, what is the point of having an attorney fee provision in your contracts and forms if it’s not going to hold up in court?

Bottom Line

Your attorney fee provision MUST specifically provide for the recovery of “attorney’s fees,” and not merely “costs” or “expenses.”

Even if a provision provides for the recovery of “legal expenses” or “costs and expenses of any suit or proceeding,” the right to recover attorney’s fees is not created because the provision does not specifically implicate “fees” as part of the recovery.

If you’d like the small business lawyer Memphis TN  trusts to review your small business contracts and routine business forms to make sure your language complies with the requirements in Tennessee for attorney fee provisions, call us today at (901) 372-5003.

August 23, 2016 In Civil Litigation, Contracts

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

If you are thinking of buying or selling a home, you may have questions about the basics on Tennessee property disclosure law. The Tennessee Residential Property Disclosure Act, Tenn. Code Ann. 66-5-201, et. seq., requires the Seller of a home to provide the Buyer with a Property Disclosure Statement.  Despite this law, there is still a large amount of civil litigation arising from defects discovered in a home after the Buyer has moved in. Be aware of these top things to know about Tennessee real estate property disclosure law:

Tennessee Property Disclosure Law

  1. Sellers are required to disclose the condition of the home, including any “material defects.” What does “material” mean? Generally, any fact or condition that might affect a Buyer’s decision to purchase the home.
  2. Sellers are only required to disclose based on the information they have.  Sellers are not required to have a home inspection, hire experts, or conduct an independent investigation to discover everything that might be wrong with their home.
  3. The Disclosure Statement is not a warranty. The disclosure form is not a substitute for a thorough home inspection.  If you are the Buyer, you shouldn’t just rely on the disclosure form. Hire your own home inspector.
  4. Some sellers are exempt from making disclosures. Common exceptions include sales or transfers between co-owners, new construction, purchases from lenders after foreclosure, auction sales, or if the Seller has not lived in the home within the 3 years before the Closing.
  5. Sellers are NOT Required to Repair Items listed in the Disclosure.  If you are the Buyer, be aware that Sellers don’t have to fix anything listed as broken or defective. If you want an item repaired, you must contract for it. In other words, both Buyer and Seller must agree in the final contract that an item will be repaired by the Seller before closing.
  6. Sellers ARE required to update their disclosures before closing. Sellers must update to address any material changes that have taken place since the original date of disclosure, or to confirm to the buyer that the original form is still accurate. Tenn. Code. Ann. 66-5-205.  If you are the Buyer, you should not close on a home without seeing an updated Disclosure Form signed and dated by the Seller.
  7. Representations in the Disclosure Form are those of the Seller only, and not the Real Estate Agents.  The Disclosure Act applies only to Sellers.  An agent can’t be sued under the Disclosure Act for information contained in a Seller’s disclosure form unless the agent is a signatory. Tenn. Code. Ann. 66-5-202; 66-5-208. However, real estate agents have certain disclosure duties pursuant to the Tennessee Real Estate Broker License Act of 1973.   Under the Real Estate Broker License Act, a real estate agent is required to “[d]isclose to each party to the transaction any “adverse facts” of which the licensee has actual notice or knowledge.”  Tenn. Code Ann. § 62-13-403.  What are adverse facts? Both Acts define adverse facts as conditions or occurrences generally recognized by competent agents that significantly reduce the structural integrity of improvements to real property or present a significant health risk to occupants of the property. Tenn. Code Ann. § 62–13–102(2); § 66–5–206. However, the definition of adverse facts found in the Real Estate Broker License Act also contains a third prong, for conditions or occurrences that “have negative impact on the value of the real estate.” Tenn. Code Ann. §62-13-102(2). See Ledbetter v. Schacht, 395 S.W.3d 130, 136 (Tenn. Ct. App. 2012).
  8. Any lawsuit against a Seller for a misrepresentation in a Disclosure Statement must be filed within one (1) year.  Any cause of action based directly on the disclosure law statutes will be lost if not filed within one (1) year from the date the buyer received the disclosure statement or the date of closing, or occupancy, whichever occurs first. Tenn. Code Ann. § 66-5-208.

Discovered a problem after closing?

If there is “trouble in paradise” with your new home and you think the Seller or a Real Estate Agent made a misrepresentation concerning the home, speak with an attorney as soon as possible.

While a lawsuit is not always necessary to resolve a legal issue, remember there are deadlines within which to file a lawsuit, if necessary.  An experienced litigation attorney can advise you of your options based on the particular facts of your situation.

Want to speak with an Attorney?

The attorneys at Patterson Bray are experienced litigation and contract lawyers. We understand real estate transactions and sales, and we know the disclosure laws applying to both home sellers and real estate agents and brokers in Tennessee.  Call us today at (901) 372-5003.

Additional RESOURCES:

Read more about Lawsuit Deadlines: How Long Do I have to File a Lawsuit in Tennessee?

August 15, 2016 In Contracts

Can an Electronic Signature Form a Contract in Tennessee?

Can an Electronic Signature Form a Contract in Tennessee?

Did you know that in most cases courts will recognize an electronic signature, and enforce contracts “signed” and created by e-mail exchange?

Oral vs. Written Contracts – Intro

Contrary to popular belief, a contract doesn’t always have to be in writing to be enforceable. Indeed, as explained in one of our prior blog posts,  a court will enforce an oral agreement except in cases involving certain types of contracts that are required to be in writing and signed by the parties.

Of course, even though an oral contract might technically be enforceable, there are plenty of reasons to get an agreement in writing.  Written contracts cut down on “he said, she said” disputes over exactly what was verbally agreed to.  Written contracts are also obviously preferable for any agreement that involves even a hint of complexity.  And, as noted above, in some instances a written contract with signatures in actually required pursuant to the Statute of Frauds.

So, then, how is a written contract actually formed and then signed?  Is there some formal scroll paper or signing ceremony where all the parties get together and take turns using the same quill pen and ink?

Hardly.

Forming a written contract can be as simple as exchanging an e-mail with typed written names at the bottom in a signature block.

Uniform Electronic Transactions Act

In 2001, Tennessee adopted the Uniform Electronic Transactions Act (UETA) to facilitate and govern transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct. Tenn. Code Ann. 47-10-105 (a)-(b).

Under Section § 47-10-107  of the Act,

(a)  A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b)  A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c)  If a law requires a record to be in writing, an electronic record satisfies the law.

(d)  If a law requires a signature, an electronic signature satisfies the law.

What is an Electronic Signature?

So what constitutes an electronic signature?  Pursuant to the UETA, an “electronic signature” is  “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Tenn. Code Ann. § 47–10–102(8).  This can be accomplished simply by typing your name to the end of an email.  Here’s an example:

  • John Doe sends the following e-mail: “I hereby offer to buy 100 widgets for $1,000, delivery next Tuesday. Sincerely, John Doe”

  • Jane Brown responds as follows: “I accept your offer to purchase 100 widgets for $1,000, delivery next Tuesday. Best, Jane Brown”

This transaction is binding despite the fact there is no pen and ink “writing” or “signature.”

Does an Attorney’s Signature Qualify?

Yes. The signature of a party’s attorney is sufficient to meet the requirement of an electronic signature that binds the client. On this issue, the Tennessee Supreme Court in Waddle v. Elrod, 367 S.W.3d 217 (Tenn. 2012) explained as follows:

[A]lthough [the party] did not sign the email, there is no dispute that [her attorney] was acting as her agent when he negotiated the settlement. Had he written his signature on a printed version of the email, rather than typed his name at the end of the email, his signature would undoubtedly have been sufficient to satisfy the Statute of Frauds. The UETA, recognizing that all sorts of transactions are now routinely conducted by electronic means on a daily basis, obviates the need for a handwritten signature. [The attorney’s] typed name at the end of the email constitutes an “electronic signature.” Tenn. Code Ann. § 47–10–107(d). As the agent of [the party], [the attorney’s] electronic signature on the email confirming the terms of the settlement agreement satisfies the signature requirement of the Statute of Frauds.

Be Careful

Take great care when you conduct negotiations via e-mail, and you have your e-mail set up to include an automatic signature block.  If you don’t intend for your e-mail to constitute a formal offer or acceptance of an agreement, be clear about it so you don’t wind up facing an argument that you formally entered into an agreement when you never intended to.

Bottom Line

In most cases, handwritten ink signatures aren’t required and you do not have to have an original signature for a contract to be effective.

Need a Contract Lawyer?

We are contract lawyers in Tennessee. If you need help enforcing an agreement or contract, or if someone is wrongfully alleging that you entered into a contract, please contact us at 901-372-5003. Each case is unique and we can advise you based on your individual circumstances.

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.pattersonbray.com

July 11, 2016 In Contracts, Estate Planning

Joint Property Ownership Pitfalls and Solutions

Joint Property Ownership Pitfalls and Solutions

Our law firm has worked on a couple of cases lately involving joint property ownership; that is, property owned by a group of several individuals. Owning a piece of land or real estate with a group of individuals or family members can lead to many problems, a few of which we will discuss here.

What Happens to Real Estate When a Person Dies?

In Tennessee, real property typically passes outside of Probate in accordance with the publicly recorded property documents in the County where the property is located.  A person can also plan for the disposition of real property in a Will or Trust.  If you die owning real property in your sole name, though, it can cause significant problems for your Beneficiaries that can be avoided by proper planning.

In both cases I mentioned above, the group of individuals came into joint property ownership because of intestate succession (i.e., dying without a Will).  You may think that you do not need a Will because your property will pass to your heirs regardless.  However, there are many problems and burdens that your heirs will face if property passes to them through intestate succession.  Here’s what can happen if a landowner dies without a Will:

  • Land may pass to heirs who do not wish to be landowners.
  • Land may pass to heirs who do not know that they are now landowners (i.e. lost heirs).
  • Land may pass to heirs who are not prepared for the responsibility of owning real estate (i.e. paying real estate taxes, maintaining insurance, upkeep of the property)
  • If there is a mortgage, payments may be required very soon after the death of the original owner and before any inherited owner has a chance to determine how to address the new ownership – i.e. sell the property, allow it to be foreclosed upon, etc.
  • The title to the property will be unclear and extra effort will be required to determine all legal owners in a joint property ownership situation. It can be very difficult to locate heirs and to determine with certainty who all owns a piece of property, especially if some of the original heirs have died, or if the family isn’t in close contact or is spread across the country. A title search may be required, and title searches can be expensive.

Increased Costs for Inherited Owners

When a piece of property passes through intestate succession, when ownership is unclear, or when a piece of property is owned by a large group of individuals, there will be extra expense involved when the property is sold. As a general matter, the entire sales process will take longer than usual. Each separate legal owner must be found and consulted with.  Then, each owner must agree to all parts of the sale process (i.e. negotiating the price, negotiating and completing repairs, and signing all required paperwork).  It can be very difficult getting a group of family members or individuals to all cooperate and agree during the course of a real estate transaction.

Inherited owners who want to sell property can expect to have to do some additional work with the buyer’s title company such as filing probate documents, getting releases from TennCare, and dealing with potential creditors of the deceased person.  A title company may require proceeds to be escrowed for up to a year after the deceased person’s death.

Legal Issues of One Owner Can Affect Other Owners

Inherited and multiple owners can also come with their own personal problems.  A judgment lien or a bankruptcy filing of one inherited owner will immediately attach to the inherited property, which could cause delays and problems for any co-owners wishing to sell the property.

Ways to Avoid Common Problems of Joint Property Ownership

If you must own property with a group of individuals or family members, or if you desire to pass property to a group of people, there are ways you can accomplish joint property ownership which lessen the burden and expense involved. Speak with an Estate Planning Attorney or Property Lawyer about the best way to achieve your personal goals. For example, more effective “joint ownership” can be achieved in the following ways:

  1. Own as Joint Tenants with Rights of Survivorship. This type of ownership is common with married couples, but it can also be used with any individuals wishing to create this type of joint tenancy.  Upon the death of one joint tenant, the remaining tenant owns the property outright.  This results in protection from a debtor-tenant’s creditors because liens can only attach to the right of the debtor-tenant, which is nothing more than a “potential survivorship right.”  This protection ends if the non-debtor tenant dies and the debtor- tenant then owns the property outright.  One negative of this type of ownership is that the property will only pass to the other joint tenant, so the Estate of the first to die loses any equity to pass on to other individuals.  In addition, potential gift tax issues may arise since the Grantor is “gifting” rights to the property to the person they are creating a joint tenancy with.
  2. Own the Property in a Limited Liability Corporation.  Ask a business organization attorney about property ownership through an LLC. The rights of the members will depend on the structure of the LLC. Creating an LLC requires maintenance of paperwork to the State to keep the LLC active which will be required if the LLC wants to sell the property.
  3. Put the Property Into a Living Trust.  This is achieved by conveying the property to a Trustee on behalf of a Trust. (A Trust itself can’t own property; rather it must be an individual Trustee on behalf of the Trust.)  The property will then be maintained and distributed in accordance with the Trust Agreement.  A Living Trust allows the Grantor to make changes during his or her lifetime (therefore keeping control and autonomy) but also allows for the streamlining of management and an easy transition of the property upon the death of the original Grantor.  The successor Trustee can sell or manage the property outside of Probate, and depending on the Trust terms, without the input of or disruption to the Beneficiaries.

Beneficiary Deeds

Tennessee does not offer this, but some states allow the use of a Beneficiary Deed to clarify how a property is to pass upon the owner’s death. Essentially, a Beneficiary Deed lets a person name a beneficiary and only takes effect upon the death of the owner. Ask your Estate Planning Attorney about the availability of Beneficiary Deeds if you own property in multiple states.

Right to Partition

If you are tied up in joint property ownership, or if you own a piece of property with a group of individuals or family members and you want to end the relationship and go your separate way, you can. In Tennessee, you have the legal right to what is called “partition.” Speak with a civil litigation attorney about filing a partition lawsuit. In this kind of lawsuit, you ask the judge to partition the property, either “in kind” or “by sale.”

Need Help with a Property Ownership Issue?

Have questions about joint property ownership or other real estate issues? Please call us at 901-372-5003 or send Patterson Bray an email.

April 7, 2016 In Business Litigation, Contracts

Small Business Tip: Include Provision in Your Contracts to Recover Attorneys’ Fees

Reason to Add an Attorney Fee Provision

You’re running a small business. You have a form, purchase order, or other short contract you always use.  Take a moment to look at your forms and contracts. Do they include an attorney fee provision?  If not, we recommend that you add one.

If someone fails to pay you, you might need to file a lawsuit to recover what you are owed. Going to court is expensive.  In Tennessee, each party is responsible for paying their own attorney fees. That’s right–even if you win in court, you generally can’t make the other side pay your attorney fees unless you have an attorney fee provision in your contract.  For more information on attorney fees, read this blog post.

Sample Attorney Fee Provision

If any party institutes any action or proceeding to enforce any provision of this contract by reason of any alleged breach of any provision herein, the prevailing party shall be entitled to receive from the losing party all legal fees and costs incurred in connection with any such proceeding.

We are Small Business Lawyers.

Check out our team at Patterson Bray.  If you need help with your small business contracts, agreements, or forms, or if you have a question about business litigation or the recovery of attorney fees in a lawsuit, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

 

 

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

Top 8 Ways to Save Money on Attorney Fees

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 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.