Insurance Claim Deadlines May be Shorter Than You Think

Suppose your insurance company denies your claim – whether for a fire loss, water damage, theft, or storm damage. How long do you have to file a lawsuit against the insurance company? Well, it may not be as long as you think, so be careful! The best thing you can do to make sure you preserve your insurance claim case is to consult with an insurance lawyer as soon as possible.

Insurance Policies Can Shorten Time for Filing Suit

While an insurance policy is a contract, and the “regular” deadline (a/k/a the statute of limitation) on contract claims in Tennessee is usually 6 years, your homeowners policy almost certainly has a much shorter “contractual statute of limitations” provision hidden in the fine print. In most cases, that shorter contractual deadline is only 1 year, and sometimes even shorter.

Immunity and Loss Settlement Periods in an Insurance Policy

An insurance policy usually provides for a period of immunity, or loss settlement period, during which you can’t sue the insurance company. This is to give the company time to investigate your claim before having to respond to it.  Many policies provide for 45-60 day periods. In some cases, the immunity period may expire before they actually finish investigating your claim, or before you receive a payment or denial. Because of this, Tennessee case law provides that your time to file suit begins to run following the “accrual of the cause of action” against your insurance company.

What does “accrual of the cause of action” mean?

The “accrual of the cause of action” against the insurance company occurs – and thus the clock starts ticking on your deadline – when the immunity period expires, or when the insurance company denies your claim, whichever comes first.

In some cases, depending on what the policy says, an insurance company’s immunity period may be extended if it continues to actively investigate a claim and request information beyond the time stated in the policy. It is critical that you consult with an insurance attorney to determine the applicable deadlines in your insurance claim case.

Important Dates in an Insurance Claim

If you have an insurance claim, keep all of your claim-related papers in one place. Look at your policy and figure out the loss settlement period.  If you don’t have a copy of your policy, ask for one. Keep any letters or emails you send to or receive from the insurance company. Record, be aware of, and keep up with the following dates:

  • Date of loss
  • Dates of claim payments
  • Dates of correspondence or phone conversations with the insurance company
  • Date of Denial

Don’t Wait Too Late to Involve an Insurance Lawyer

Determining insurance claim deadlines can be complicated, confusing, and depends on a number of factors. The insurance company understands how these time frames and deadlines work, and because adjusting insurance claims and reading insurance policies probably isn’t what you do for a living, you are at a disadvantage, especially in a complex or large loss insurance claim.

Call us sooner rather than later if you feel like your homeowners insurance claim is not being handled or paid properly.

  • Insurance policy language is confusing and it doesn’t always mean what it sounds like.
  • Your insurance adjuster is not your advocate.
  • We know insurance law. We will apply insurance policy language to your advantage.
  • We understand how insurance deadlines work.
  • You’ve paid your premiums for all of these years. Don’t lose out on a technicality.

 

Let us help you with your insurance claim case. Call Patterson Bray at 901-372-5003.  We have offices in Memphis and Nashville. Don’t wait too late and lose your legal right to recover.

Lawsuit Deadlines: How long do I have to file a lawsuit in Tennessee?

Why are there statutes of limitation or lawsuit deadlines?

In Tennessee, there are lawsuit deadlines called “statutes of limitations,” so it is important to speak to a lawyer as soon as possible if you believe you may need to file a lawsuit.  If you wait too late, you may lose your ability to seek a remedy or recovery in court.

Statutes of limitation serve a number of purposes.  They promote stability in personal and business relationships; they prevent undue delay in filing lawsuits; they help to avoid uncertainty in pursuing and defending old claims; and they help to ensure that evidence is preserved and not lost due to the lapse of time, fading memories, or death of witnesses or parties.

What time limit applies to my case?

It depends on what kind of case you have. Even our courts sometimes struggle with which statute of limitation applies. Generally, a court looks to the “gravamen” of the complaint to determine which statute of limitation applies. Think of the “gravamen” as the “real purpose” or the “main point” of a lawsuit.

The Tennessee Supreme Court, in Benz-Elliott v. Barrett Enterprises  said that when determining the gravamen of a complaint in order to decide which statute of limitation applies, “a court must first consider the legal basis of the claim and then consider the type of injuries for which damages are sought. This analysis is necessarily fact-intensive and requires a careful examination of the allegations of the complaint as to each claim for the types of injuries asserted and damages sought.”

You may have multiple legal theories and claims available to you in your case, but those claims could have different statutes of limitation that will affect your ability to recover.  Because this analysis can be difficult, and it is to your advantage to include as many viable claims for recovery as possible, you should consult an attorney as soon as possible to discuss your case.

Statutes of Limitation in Tennessee for Common Claims

Below are statutes of limitation for common types of claims. There are others, so make sure and consult with an attorney to make sure you understand what time limit applies to your case.

  • Personal injury or wrongful death – 1 year
  • Property damage – 3 years
  • Conversion – 3 years
  • Breach of Contract – 6 years
  • Fraud/Misrepresentation – 3 years
  • Legal or medical malpractice – 1 year
  • Consumer Protection Act claims – 1 year
  • Sale of Goods Contract Claims – 4 years
  • Slander (spoken defamation) – 6 months
  • Libel (written defamation) – 1 year

Exceptions

There are certain exception to the statutes of limitation in Tennessee, but you should never assume an exception will apply to your case. For example, if a person took active steps to keep you from discovering an injury or claim (i.e., fraudulent concealment), then you may have additional time to file suit.

Courts will not allow you extra time to file suit simply because you did not know the applicable statute of limitation, or because you suffered an injury but didn’t find out the full facts or extent of your damage until later in time. Consult with an attorney as soon as you think you have a claim.

Don’t Lose Your Ability to Recover. Call us today.

Statutes of limitations and lawsuit deadlines can kill your case before it even starts. If you think you may have a legal claim against someone, please call us today at 901-372-5003 or email us here. Don’t wait too late and lose your ability to file suit or recover damages. Let the attorneys of Patterson Bray help you today.

I No Longer Want to Own Property with a Partner – How Do I Break Up?

I No Longer Want to Own Property with a Partner – How Do I Break Up?

Imagine you and a partner purchase a rental property in the hopes of generating additional income.  Or perhaps you jointly inherit some property.  You own the property as tenants in common, meaning that you each own a ½ interest. You’re each responsible for ½ the property taxes and expenses, as well as ½ of any rental income.

A few years later, you decide you want out.  The income (when there is any) doesn’t seem worth the headache, and in some years, you even wind up paying more than your share of the expenses because your partner can’t seem to keep a steady day job.  The two of you don’t get along anymore and you really just want out. What can you do?

The law in Tennessee does not require you to continue owning property jointly with another person if you don’t want to. If you can’t reach agreement with your partner about an exit plan, then you can file what is referred to as a partition lawsuit.    There are two ways a Court can partition, and it depends on the particular facts of any given case. You will likely need an attorney to help you navigate the particular circumstances of your case.

Partition “in kind”

If a Court partitions a piece of land “in kind,” it means the property will be physically divided among the co-owners – almost quite literally splitting the baby.  An example would be if two people owned a two acre tract of raw land and the Court simply divided it in half, giving each person one of the two acres.

Partition “by sale”

A partition “by sale” is exactly what it sounds like. The Court will order a sale of the property and then distribute the money proceeds to the parties. The  Tennessee Code provides that a party is entitled to a partition by sale if either (1) the property is situated such that it can’t be divided, or (2) when it would be manifestly to the advantage of the parties for the property to be sold instead of divided.   For example, a Court can’t split a house and give each person half, so it would instead order the house to be sold.

Expenses and Distribution of Income

What if you paid more than your share of expenses prior to filing the lawsuit, or what if you don’t think the rental income was distributed properly? In a partition lawsuit, you can ask the Court to award you that money in addition to what you are owed for your ownership interest. The key to recovering this additional money is proving the amount you are owed. Hopefully, you have kept, or can obtain, records concerning your income and expenses associated with the property. In some cases, you might be able to obtain financial records during the partition lawsuit that may help prove what you are owed.

Settlement or Partition Lawsuit?  We can help.

If you currently own a piece of property with another person and you’ve decided you no longer want to continue in the joint ownership, we can help you fashion a solution.  Filing a lawsuit should not be your first step in any dispute, but a partition action is an available legal tool if an agreement can’t be reached. We are experienced at helping our clients negotiate resolutions without the necessity of filing a lawsuit; however, because we are trial attorneys, we know our way around the courthouse and are prepared to file and handle a partition action on your behalf, if necessary.   Please call us today at 901-372-5003 if we can help you.

Get it in writing: A handshake probably won’t do.

 

The Dangers of Unwritten Agreements

You’ve heard it before:  “If it’s not in writing, it doesn’t exist.”  While that is not technically true, we don’t recommend entering into an unwritten agreement or contract of any significance.  If it is important to you or to your business, get it in writing. Unwritten agreements, or oral contracts, can be legally enforceable in Tennessee in certain cases, but they are extremely difficult to prove in court.

Contracts Required to be in Writing

According to a legal rule called the “statute of frauds,” there are some agreements that are required to be in writing in Tennessee, including:

  • An agreement to pay someone else’s debt
  • An agreement concerning the sale of real property or land
  • A lease with a term longer than a year
  • A contract that can’t be performed or concluded in a year
  • A contract for the sale of goods for over $500.00

What Should a Contract Say?

Any contract should contain the essential terms of the agreement. The contract should clearly spell out what each party is going to do in plain language.  Say what you mean, and mean what you say. 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.  You wouldn’t believe the number of cases in Tennessee where courts have had to interpret contract terms and agreements because of drafting failures on the front end.  Do you really want a judge telling you what your contract says?

Be Smart: Hire an Attorney During Contract Negotiations

Contract law and litigation can be complicated, but it doesn’t have to be. One way to avoid disagreements, misunderstandings, and the high cost of contract litigation is to involve an experienced lawyer during contract negotiations.  Many people believe that hiring a lawyer during contract negotiations will signal distrust of the other party, but that is not true in today’s business world. It is common, and usually expected, that attorneys will be involved. We are often successful in obtaining favorable contract language for our clients that they would have never known to request had they not involved an attorney.  It is sometimes a matter of knowing what to ask for, and we can help you with that.

We are not only experienced in drafting and reviewing agreements and contracts, but we are trial attorneys.  Call us today at 901-372-5003 if you need help with a contract or agreement.

Can I Represent Myself in General Sessions Court?

Can you represent yourself in General Sessions Court?

Yes, you may always represent yourself in any court matter – it’s called proceeding pro se.  However, you may only represent yourself.

If the true party in the case is actually a corporation or limited liability company (LLC) – even if you are the sole shareholder/owner/member – then you may not represent “yourself” because, technically-speaking, a business organization is a distinct legal entity separate and apart from you as a natural person.  And unless you are a lawyer, you cannot represent another person or entity, or else you would be guilty of the unauthorized practice of law, and no Judge will allow that.

Should you represent yourself in General Sessions Court?

If you are the party in the case as an individual, or as a sole proprietorship, then you may always represent yourself.  The real question, though, is should you?  Many people believe General Sessions Court is a “small claims court” similar to the TV court shows where two parties stand at podiums and, with great drama, show or tell the Judge whatever they want. While it is true that General Sessions Court disputes are typically limited to smaller matters under $25,000, and further that any judgment can be appealed to Circuit Court, it would be a mistake to assume that General Sessions Court is somehow informal or easy.

In many cases, litigating in General Sessions Court is easier and less expensive than litigating in Circuit Court. However, General Sessions Court is serious. All parties, even those representing themselves, must follow the Rules of Court and the Tennessee Rules of Evidence and must observe the proper rules of courtroom decorum.  You cannot simply tell or show the Judge whatever you want.

So the question really is this: do you know the Tennessee Rules of Evidence? Do you know what makes a piece of evidence objectionable? Do you know how to lay a proper foundation to get a document or a witness’s testimony admitted in evidence? Attorneys are trained to know the rules and to use them to their client’s advantage. You may have a perfectly winnable case and lose it because you do not know how to properly present evidence.  We’ve seen it hundreds of times.

Many people say they cannot afford an attorney, while others simply don’t want to pay an attorney to handle something they believe they can handle themselves.  However, is the potential of recovering nothing on your claim – or, conversely, subjecting yourself to a judgment that will be reported to creditors – preferable to paying an attorney fee?

Helpful Resources for pro se litigants

If you truly can’t afford to hire an attorney, here are a few resources you may find helpful:

Rules of General Sessions Court (Shelby County)

General Sessions Court–Civil Case Forms

Attorney of the Day Courthouse Project. Each Thursday Memphis Area Legal Services hosts an advice clinic at the Shelby County Courthouse at 140 Adams Avenue in Memphis.  Volunteer attorneys meet with walk-in clients and provide advice and counsel.  The clinic starts at 1:30 p.m. in Room 134 of the Courthouse.

Saturday Legal Clinics. These clinics, also hosted by Memphis Area Legal Services, operate on a first come, first served basis and provide opportunity for members of the community to meet with an attorney to discuss their legal issues.  Volunteer attorneys provide advice, counsel, referrals.   Memphis clinics are held the second Saturday of every month at the Benjamin Hooks Main Library, 3030 Poplar Avenue, starting at 9:30 a.m. until 12:30 p.m. Covington clinics are held on a Saturday every other month at First Presbyterian Church, 403 S. Main Street, starting at 10:30 a.m. until 1:30 p.m.

We practice in General Sessions Court. 

The attorneys at Patterson Bray regularly practice in General Sessions Courts in Memphis, Shelby County. We know the rules and we will use them to effectively present your case or defense to the Judge. We represent both Plaintiffs and Defendants. If you have a pending General Sessions case, or if you are thinking of suing someone in General Sessions Court, and you’d like to talk to us about it, please call us at 901-372-5003.

Can We Make Them Pay My Attorney Fees?

Can We Make Them Pay My Attorney Fees?

Can we make them pay my attorney fees? This is one of the most common questions we receive from our clients who find themselves involved in lawsuits. Unfortunately, the answer in most cases is no. Tennessee follows the “American Rule” which means that each party in a lawsuit pays their own attorney fees, no matter who wins. There are, however, exceptions to this rule. Two of the most common exceptions are as follows:
(1) Certain state and federal statutes allow the prevailing party to recover attorney fees. Examples: certain consumer protection, civil rights, and employment claims, etc.

(2) A contract provision where the parties to a contract have agreed that the prevailing party in a dispute will be entitled to recover attorney fees. Examples: leases, commercial contracts, collections, home sale contracts, etc.

Your attorney should examine the allegations in the lawsuit and any contracts that may apply to determine whether it is possible for you to recover your attorney fees. If you are a business person and you don’t have attorney fee provisions in your contracts, consider adding them. Here are some answers to additional questions we are frequently asked about attorney fees:

“This lawsuit is frivolous! Can we make them pay for all the money I have to spend dealing with this?” The standard for “frivolous” is pretty high. Even lawsuits that are eventually determined to have no merit are not necessarily frivolous. Very few cases are. Unless your case meets one of the exceptions, you probably can’t recover your attorney fees, even if you win.

“My contract provides for attorney fees. What are the chances I actually recover them?” If you are the prevailing party and you obtain a judgment, that judgment should include an award of what the judge deems a reasonable attorney fee. Your award may or may not equal what you actually paid your attorney. If your case is resolved through settlement, the attorney fee provision is often used as a negotiation point to increase the overall amount of money you recover.

“If the judge awards me an attorney fee of less than what I actually paid my lawyer, does my lawyer have to give my money back?” It depends on what your fee agreement is with your lawyer, but in most cases, the answer is probably no. Your fee agreement with your lawyer is independent of any judgment you may recover from the opposing party.

If you need help drafting an appropriate attorney fee provision for your contracts, or if you have a question about recovery of attorney fees in a lawsuit, please call us at 901-372-5003.

Construction Contract? Confirm Your Contractor is Properly Licensed First!

Construction Contract? Confirm Your Contractor is Properly Licensed First!

I spent a good amount of time one week working with a client to cancel his construction contract after learning that the contractor was not properly licensed to build his new house. What started out as an exciting time in this client’s life turned out to be a big mess.  I was eventually able to work out a solution with the unlicensed contractor, but not before he had hired legal counsel of his own.

In Tennessee, residential and commercial construction contractors are regulated by the Tennessee Board for Licensing Contractors.  Per the Board,

A contractor’s license is required prior to contracting (bidding or negotiating a price) whenever the total cost of the project is $25,000 or more.

For residential construction, licensed contractors may contract to build houses so long as the total cost of the project does not exceed the monetary limit established by the Board.  A contractor may apply to have his limit increased after submitting documents showing financial stability.

Frequently however, home builders enter into contracts with customers for projects that exceed their monetary limits.  Many problems can come into play when this happens.  Contractors jeopardize their licenses and expose themselves to fines from the Board. Contractors open themselves up to not being able to collect under the terms of the construction contract, even if everything goes well.  Customers run the risk of the project being shut down and having to incur additional expenses. Customers may even have to hire a replacement contractor.

Before Your Enter Into a Construction Contract. . .

Check to see if your contractor is properly licensed!  Construction litigation  can be lengthy, complex, and expensive. Many problems can be avoided if customers do a little quick research to confirm that the contractor they want to use is fully and properly licensed.  You can do that by clicking here.

If you need a construction or contract lawyer, call me at (901) 372-5003 or email me here. 

By: Chris Patterson

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

 

 

Why it Pays for Small Business to Use a Small Law Firm

 

Why it Pays for Small Business to Use a Small Law Firm

If you run a small business, you have no doubt heard the usual reasons why you should consider taking your legal problems to a small law firm instead of a mega-firm:

  • Lower hourly rates (no subsidization of fancy offices, boxes at FedEx Forum, flashy overhead, etc.)
  • Better responsiveness (no “big shot” partner egos to deal with)
  • More attention (smaller pond = bigger fish)

All of which is true.  But how about this one:  BETTER SOLUTIONS!  We are a small law firm for small business.

Small Business + Small Law Firm = SUCCESS

Here is a real-life example of how a small law firm ended up being a better fit for the needs of small business.

A construction contractor client came to our firm with a problem.  Business had gotten slow, and the business decided to terminate a few employees, including one of its carpenters.  The client allowed the employee to finish out the workweek and went ahead and cut his final paycheck through the end of that week.  Unfortunately, the employee injured himself on the job just a few days later (his second-to-last day at work).  He understandably filed a workers compensation claim for his injury, to which the client had no objection.

However, the employee later went on to file a federal lawsuit alleging that he had actually been fired in retaliation for filing a workers comp claim – a claim which was patently untrue.  After all, the decision to terminate the employee was made before he had ever even injured himself.

The key piece of evidence ended up being the final paycheck which was dated prior to the date of the injury.  The employee claimed, however, that the check had been forged and backdated.  This allegation was potentially troublesome because it basically boiled down to a “he said, she said” dispute that would normally be a classic question of fact for a jury.  This meant the client was potentially staring down the barrel of a long, drawn out lawsuit ending with a trial.

Which is where the benefit of having a small law firm kicked in.

Small law firms think like small businesses because we ARE small businesses.  And so we know a thing or two about the practical, hands-on side of payroll and accounting software.  We use it ourselves every day.  And so we knew, for example, that most small business software packages contain built-in, anti-fraud features including a hidden, tamper-proof transaction log.  And while the actual purpose of having a tamper-proof transaction log is to protect the small business itself (by preventing bookkeeping employees from having the ability to manipulate financial records in order to hide embezzlement), the information proved invaluable for our client in this particular situation.  Indeed, we knew the client could access the transaction log which ultimately proved with a precise date/time stamp that the employee’s final paycheck had indeed been cut before he was  injured.

This single piece of information was ultimately sufficient to convince the employee’s attorney that the case had no merit, and so the lawsuit was literally resolved within mere days.  Which was all the more important because the client’s annual audit was only weeks away, and it desperately wanted to avoid having to disclose a pending lawsuit.

WE ARE SMALL BUSINESS.

Small law firms have a different, and arguably more relevant, knowledge base and experience than mega-firms.  We better understand the needs and perspective of small business, because we ARE small business. If you are a small business, let our small business help you. Call us today at 901-372-5003 or email us here.   Or visit the Business & Commercial Litigation page on our website to learn more.

We’re conveniently located near the intersection of Walnut Grove and Germantown Parkway in Memphis. Easy access to our office means you are in and out when you need to visit us, so you can get on with running your business.  Oh, and there’s free and plentiful parking here. No parking garages necessary!

Credit Application and Small Business

Signing a Credit Application on Behalf of a Company Could Subject You to PERSONAL Liability

Most small business vendors and suppliers require a company officer to sign a Commercial Credit Application or Agreement to buy goods and supplies on account.

Watch out, though!

Carefully examine the language of the Credit Application or you may find yourself personally liable for the debt even if you don’t have any ownership in the company!

In 2011, the Tennessee Supreme Court considered a credit application in  84 Lumber Company v. Smith that contained the following language:

BY SIGNING BELOW I HEREBY … UNCONDITIONALLY AND IRREVOCABLY PERSONALLY GUARANTEE THIS CREDIT ACCOUNT AND PAYMENTS OF ANY AND ALL AMOUNTS DUE BY THE ABOVE BUSINESS….

Mr. Smith signed the Credit Application as “R. Bryan Smith, President.” This manner of signing is typically referred to as signing in a “representative capacity” to denote that it is being executed by the company only, as compared to signing your name without a title to indicate that it is being signed personally.

However, the  Court ruled that the attempt to sign in a representative capacity did NOT  trump the unmistakable language of the Application, and held that Mr. Smith was personally liable for the debt as well.  This same logic would presumably apply not just to company presidents like Mr. Smith but also even to junior employees who might have signed such an agreement.

Credit Application Best Practices

So what should you do if faced with this situation?

  1. Strike through offending language. In order to avoid personal liability, you would at a minimum need to physically strike through the personal guarantee language AND then also sign the document in a “representative capacity” (i.e. name + title).
  2. Make an Informed Decision.  Many suppliers and vendors require a personal guarantee in order to do business, and so you may have to decide whether to go ahead and sign the agreement, shop around, or try to negotiate a better deal (e.g. perhaps provide for a maximum limit on the guarantee, or secure a bank letter of credit instead, etc.). At least you will be making an informed decision.
  3. Ask a “Higher Up” to Sign. If you’re just an employee or junior officer of the company then you should probably take the agreement to a superior to make certain that the right person is signing the agreement. A regular employee (i.e. someone with no ownership interest) should not fairly be expected to personally guarantee the obligations of his or her employer.
  4. Go see an attorney! The above tips are intended only as general legal advice. Each agreement, contract, and situation is different, and you should seek legal advice tailored to your specific situation.

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, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

What is a Deposition? Law FAQ

What is a Deposition?

A deposition is similar to a witness testifying in court, except that it occurs in an out-of-court setting.  A witness at a deposition is referred to as the “deponent.”  A deposition usually takes place in a lawyer’s conference room, although I’ve personally been involved in depositions that took place in homes, hospitals, and even over the telephone.

It’s a chance for lawyers to ask questions and get answers from a witness under oath.  A court reporter is present to make a record of the questions and answers, which is then usually reduced to writing in what’s called a “transcript” of the proceedings. Sometimes a videographer will also be there to film the testimony.

Depositions are part of the “discovery” process of a lawsuit.  Each side has the right to discover information about the other side’s allegations. This is accomplished by things like written questions, production of documents, inspection of property, independent medical exams, and depositions.  Rule 30 of the Tennessee Rules of Civil Procedure governs depositions in Tennessee.

Do we really need a deposition? Isn’t it expensive?

A deposition can be expensive, but it’s perhaps the most useful tool in a lawyer’s discovery toolbox because it allows for real-time follow-up and feedback.   One of the most useful benefits is that, with some exceptions, it can be used to preserve and/or “lock in” crucial testimony.  A transcript can be admitted as evidence in court if the witness later becomes unavailable for trial (e.g. death, incapacity, outside the reach of court’s jurisdiction, immune from subpoena, etc.).  A transcript can also be used to impeach and cross-examine a witness who shows up for trial with a different version of events.

Depositions are Serious Business.

A deposition is a very serious matter with serious potential consequences.  Remember, the transcript may be used in court. If you are the deponent, you should treat your deposition as if your testimony is occurring right in the courtroom in front of the judge and jury.

Need a lawyer in Memphis?

We’d be honored to represent you. Call us at 901-372-5003 or email us here.