Category: Publications

For PDF copy of the Banking Law Alert, click here BANKING LAW ALERT Dec2014

To view a PDF version of the newsletter, click here.  December 2014 Estate Planning Newsletter  

Click here for a PDF copy of the newsletter:  Fall 2014 Med Mal Newsletter

For a link to the PDF version of the Newsletter click here November Commercial Law Newsletter COURSE OF DEALING AFTER SIGNED CONTRACT CAN CHANGE THE CONTRACT In the case of University Corporation v. Wring, the Court held that the parties’ course of conduct after a written agreement modified their written agreement. The facts in the Wring […]

NEW REQUIREMENTS FOR NOTARIES    Effective October 1, 2014, the Tennessee Legislature amended the statutory provisions for notaries. Now, Tennessee notaries are required to keep a record in a well-bound book of their services. Prior to the amendment, a notary was not obligated to keep any record of the items that they notarized.   The […]

For a PDF version of this newsletter, click the link:  What Do You Do After Closing If You Find Out The Deal Was Wrong_

For a PDF version of this document, click the link:   2014 Summer Employment Newsletter

  INHERITED IRA’S ARE SUBJECT TO CREDITORS’ CLAIMS   The United States Supreme Court has ruled in Clark v. Rameker that inherited IRA’s do not qualify for an exemption from the bankruptcy estate for debtors in bankruptcy.  Therefore, inherited IRA’s are not protected from creditors in a bankruptcy proceeding.   The facts in the Clark […]

DIVORCE LAW CAN IMPACT ESTATE PLANNING AND PROBATE LAW   In the case of the Estate of Danny Keith Ellis, the Court dealt with the effect of a Marital Dissolution Agreement on jointly titled bank accounts between divorced spouses.  The facts were that Mr. Ellis (the “Husband”) and his Wife divorced and entered into a […]

  ADMINISTRATOR FOR ESTATE HELD LIABLE FOR DECEDENT’S UNPAID INCOME TAXES   In a recent United States District Court Opinion from Maryland, US v. Shriner, the Court held that the Administrator of an Estate was personally liable for the unpaid income taxes of the decedent.  Although the Administrator claimed that he did not have actual […]

  For a PDF Version of this document click the link:   BANKING LAW NEWSLETTER August 2014   IS YOUR COLLATERAL INSURED?   In the case of PacTech vs. Auto Owners Insurance Co., the insured (“PacTech”) and the insured’s lienholder (Mr. Black, who had made loans to PacTech secured by machinery and equipment) filed suit to […]

Will Bell Newsletter 073014   ( click this link for a downloadable PDF version )   WHAT CONSTITUTES CONSIDERATION TO SUPPORT A CONTRACT   Every contract must be supported by consideration in order to be enforceable. The majority of the time, consideration is not an issue. However, the issue of consideration to support a contract arose […]

For a PDF Version click the link:  June 2014 Banking News Alert Newsletter   Use of Electronic Signatures on Bank Loan Documents Introduction The federal Electronic Signatures in Global and National Commerce Act (“E-Sign Act”) and Tennessee’s Uniform Electronic Transactions Act (“UETA”) broadly validate the legality and enforceability of electronic records and signatures in most […]

Click here for the PDF Version:    BANKING LAW NEWSLETTER April 2014   HOW DO YOU DETERMINE IF AN ENTITY IS IN GOOD STANDING?    As many of us become technologically savvy, we are becoming ever more reliant on the internet to do business. A common practice to determine if your borrower or guarantor entity […]

Employment Law Alert Newsletter – Feb 2014   ( Click here to download a PDF version )    

2014 Banking Newsletter 022814   ( Click here for a PDF download version ) MORTGAGE SERVICE OPERATIONS  Two sets of regulations implementing the mortgage servicing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (collectively the “Rule”) took effect on January 10, 2014. The Rule significantly alters mortgage servicing operations by requiring banks servicing […]

Be Cautious With Use of Liquidated Damages   In many contracts, the parties do not want the time and expense of litigating the element of damages for nonperformance by one party or the other. The case of Bachour vs. Mason illustrates an example of where the Court did not enforce a liquidated damages provision in a contract. […]

 “Misconduct” expanded for Unemployment Benefits cases   Tennessee has recently expanded the definition of “misconduct” disqualifying persons from receiving unemployment benefits.  As of July 1, 2013, “misconduct” now includes any conduct constituting a criminal offense for which the claimant has been convicted or charged that: involves dishonesty arising out of the claimant’s employment or was […]

The Great Outdoors:   A Review of Tennessee’s “Recreational Use” Statute   We in Tennessee know our state has an abundance of beautiful land to enjoy.  We also know that any outdoor excursion comes with the risk of injury or an accident.  But not many may know Tennessee has a “recreational use” statute that could offer […]

 Tennessee Legislature Further Limits Joint and Several Liability   This summer, the Tennessee Legislature further cemented the position that joint and several liability is abolished in almost all circumstances in Tennessee.  This occurred through enacting a new statute (Tenn. Code Ann. § 29-11-107) and overruling at least two Tennessee Supreme Court cases.  Those cases allowed […]

SUPERVISION OF NURSE PRACTITIONERS AND PHYSICIAN ASSISTANTS:   WRITTEN PROTOCOLS   Utilization of advanced practice nurses and physician assistants in clinics, assisted living facilities, and hospital settings is increasing.  If you are practicing as a mid-level provider or serving as a supervising physician, then it is imperative that you know and comply with Tennessee’s Rules and […]

Major provisions of the Affordable Care Act (ACA) that could impact your business will go in effect January 1, 2014. Rainey Kizer attorneys Geoffrey A. Lindley and Matthew R. Courtner answer important questions related to the ACA (also referred to as “Obamacare”) in this article appearing the HR Professionals magazine. A link to the magazine article:  […]

Bank Not Successful In Equitable Subrogation Claim There have been several Appellate Court decisions in Tennessee over the last couple of years dealing with equitable subrogation as it relates to lien priority. The most recent of the cases is Blalock & Sons vs. Fairteen, LLC. In the Blalock case, Fairteen obtained financing for a project […]

“Doctoring” Patient Records: Resist the Temptation Upon hearing of a bad outcome, receiving notice of a potential malpractice claim or, even worse, being served with a lawsuit, the first thing that many physicians do is conduct a tedious review of the patient’s chart. While doing so, the physician may recall additional conversations, instructions, or other […]

Good Documentation HELPS Promote Winning Results If you’ve ever attended an employment-law seminar or talked to an employment-law attorney, then you know the importance of policies and procedures. Equally important is communicating your policies and procedures to your employees and enforcing them consistently. But without documentation, none of this really matters. Doing everything the right […]

Under T.C.A. § 50-6-241, employees with disability awards limited by a post-injury return to work may have those awards reconsidered if their employment ends within 200 to 400 weeks of their return to work date (depending on injury date and body parts involved).  A recent decision clarifies when the 200- to 400-week period begins.

On June 28, 2012, the U.S. Supreme Court released its highly anticipated decision upholding the constitutionality of the Patient Protection and Affordable Healthcare Act (the “Healthcare Act”) passed by Congress in 2010.  Now that the Court has spoken, employers should consider the compliance issues required by the Healthcare Act.  Three critical issues for employers are […]

Adding new defendants who are alleged to be comparatively at fault in civil cases just became more limited, based on a new Tennessee Supreme Court opinion.  Under Mills v. Fulmarque, Inc., the new nonparty must be alleged by a defendant who was itself named in a complaint or amended complaint filed within the original limitations […]

The Tennessee Supreme Court, in Allstate Insurance Co. v. Tarrant, recently discussed an insurance agent’s duties when obtaining coverage for a client. Allstate’s insured, Diana Tarrant, was involved in a collision while driving a van registered to Blue Ribbon Cleaning, Inc., a business owned by the Tarrants. Allstate contended that before the accident, Mr. Tarrant […]

Notions of consent relating to medical practice have existed for many years. The doctrine of consent in the context of medical practice derived from the principle that patients should have a right to control what happens to their bodies. For over fifty years, patients in Tennessee have been able to sue medical providers who perform […]

Employers may now have an easier means to defend unemployment benefits claims and prove an employee’s reason for termination. The Tennessee Legislature has recently amended the evidentiary rules for unemployment benefits hearings. Under Tenn. Code Ann. § 50-7-304(f), employers can present personnel records and other business records as proof of an employee’s misconduct, even though […]

When is your employment law case most likely to settle in mediation? An old adage says there are two sides to every argument. It is never more true than in employment-related matters. So, the initial question is not about demonstrating a winning set of facts or an irrefutable legal argument. The question is about timing […]

Initially scheduled for implementation in November of 2011, the NLRA posting requirement was postponed until January 31, 2012, due to a number of legal challenges. Now at the request of the federal court in Washington, DC, the NLRB has agreed to further postpone the effective date. The new effective date for the NLRA posting requirement […]

On June 7, 2011, Governor Haslam signed into law the Tennessee Lawful Employment Act (“Act”). This Act requires all employers in the state, both public and private, to provide evidence that they are only hiring and employing persons who are legally in the country. Employers can satisfy the requirements of the Act by performing one […]

As part of Tennessee First to the Top Act of 2010, significant changes were made to the way hearings on tenured teacher disciplinary issues are held. Although a teacher still retains the right to request a hearing after discipline has been issued, the way the hearing is conducted has changed. Previously, a tenured teacher could […]

On July 1, 2011, Tennessee’s workers’ compensation drug-free workplace presumption was amended, strengthening the authority of drug testing when denying the compensability of a workers’ compensation claim.

The state legislature has recently imposed limitations on the authority of cities and counties to adopt their own ordinances or resolutions extending nondiscrimination requirements to groups not currently protected by state law. Currently, the Tennessee Human Rights Act (“THRA”) prohibits discrimination against individuals based on their “race, creed, color, religion, sex, age or national origin.” […]

Recently, while preparing materials for a presentation on the ADA Amendments Act and the newly released regulations, I told a colleague that I could merely walk in the room, say “everyone is disabled” and then walk out. That would be the extent of my presentation because as the regulations clearly state: The purpose of the […]

In recent years, asset protection planning has become as prevalent and as important as basic estate planning. Retirement funds are a category of assets exempt from execution by creditors, both under Tennessee law (TCA §26-2-105), and under the United States Bankruptcy Code (USC §522(d)(12)). In a recent U. S. District Court case in Texas, the […]

In Morrison v. Allen, the Tennessee Supreme Court recently addressed several important issues related to an insurance agent’s duties and potential liabilities. Morrison obtained a term life insurance policy with a two-year incontestability clause, preventing the insurer from denying coverage because of any misrepresentations. Later, Morrison became concerned with his coverage level and met with […]

In Abshure v. Methodist Healthcare-Methodist Hospitals, 325 S.W.3d 98 (Tenn. Oct. 20, 2010), the Tennessee Supreme Court clarified and expanded the situations in which an employer can be held vicariously liable for the acts of its employees. The Abshure plaintiffs filed suit against a hospital based upon the conduct of emergency room physicians.

In today’s busy medical practice, more and more medical providers are choosing to utilize the services of physician assistants and nurse practitioners to meet the needs of their patients. Those who elect to do so, however, should be aware of the applicable legal requirements with regard to supervising such mid-level providers and the potential exposure […]

There has been so much coverage of the new health care reform that many employers are struggling to understand its practical implications for their business. One area that has not been discussed in depth but which will affect all employers is the development of another protected class of employees.

In our Fall 2009 issue, we discussed a critical new evidence rule in Tennessee which now allows attorneys to use certain types of prior inconsistent statements as substantive proof in court. Previously, attorneys could only use prior inconsistent statements for impeachment (i.e., to show that a witness had changed his or her story and was […]

The mortgage crisis has become a fixture in the media and affects more than just the mortgage and banking sectors. How does the mortgage meltdown affect the business of insurance with regard to settling and paying real property damage claims? Certainly, lenders and mortgagees may become especially vigilant in pursuing claims against insurers during economic […]

Many employers believe that they can’t track the attendance and punctuality of exempt employees or find it a difficult task to implement. This article provides tips for employers in monitoring and disciplining exempt employees for attendance and punctuality deficiencies. View Employment Brief Exempt Employees and Attendance Issues Spring 2010.

As social media continues to make its mark on society and our interaction with each, employers should be aware of the potential legal risks associated with their employee’s use of social media. This article will discuss some of the issues employers face and recommendations for implementing a social media policy. View Employment Brief How Tweet […]

This Employment Law Alert contains: Worker’s Compensation Update: Benefits Available To Unathorized Workers Before Purchasing Other Companies, Employers Should Consider Past Workers’ Compensation Claims View Employment Newsletter Fall 2009 Issue.

The following topics are covered in this newsletter: New Reporting Requirement for Controlled Substances General Assembly Limits Confidentiality for Workers’ Compensation Claims Medicare Retrospective Billing Limitations REMINDER: CMS Precludes “Per-click” and “Percentage-based” Compensation View Physicians Newsletter October 2009.

The following topics are covered in this newsletter:   Will there be Estate Tax Reform? What will it look like?   View Will There Be Estate Tax Reform.

The following topics are covered in this newsletter:   Tennessee Legislature Amends Exemption For Franchise and Exercise Tax   View Estate Planning Newsletter July 2009.

The following topics are covered in this newsletter:   What Is The Tennessee Long-Term Care Partnership?   View Estate Planning June 2009.

The following topics are covered in this newsletter:   Don’t Fall Into the Hospital Lien Trap – Court of Appeals Decision Requires Close Analysis Tennessee Supreme Court Reverses Favorable Ruling for Insurers and Holds That Initiation of Foreclosure Proceedings Does Not Constitude Increased Risk of Loss or Hazard Tennessee Supreme Court Holds Insurance Coverage Information […]

This Employment Law Alert contains: Don’t Get Bitten By The New “Cobra” Supreme Court Expands Employer Liability for Retaliation Under Title VII   View Employment Newsletter Spring 2009.

In the case of Poss v. Turner, the Tennessee Court of Appeals dealt with the issue of the legal effect of when a parent transfers money to a child. Mrs. Turner, the decedent, was the payee on a check for $16,000.00. She endorsed it and gave it to her son, Charles Turner, who also endorsed […]

This Banking Law Alert contains: Foreclosure Notice Requirements Notice to Insurance Company of Foreclosure Introducing the Healthcare Practice Group View Banking Newsletter Winter 2009 pdf.

In continuing with the basic estate and financial planning tips I pointed out in my January, 2009 Newsletter, I point out some additional things to consider:   1. Businesses owned by more than one individual (not in a family) should be sure and have a working understanding of and a knowledge of how business succession […]

As we enter a new year, it is a good time to take stock of estate planning and financial positions. In this letter and the next newsletter, I will point out several things that people should consider regarding their personal situation.   1. Naming Successor Attorneys-In-Fact, Executors, Trustees, and Guardian. Many people spend the time […]

The following topics are covered in this newsletter:   Tennessee Supreme Court Expands Potential Liability for Claims of Negligent Infliction of Emotional Distress Handling Information Requests From Other Insurers     View Tort Insurance Newsletter 2009.

The following topics are covered in this newsletter:   The Foreclosure Crisis and Insurance Claims: How Foreclosure Initiation May Affect a Mortgagee’s Interest New Medicare Reporting Requirements for Insurers   View Tort Insurance Newsletter Summer 2008.

Newsletter features several topics including:   MAY PHYSICIANS CHARGE FOR MISSED APPOINTMENTS? CMS “Tamper-Resistant” Prescription Pad Requirements Now in Effect Federal Government Establishes New FMLA Regulations   View Physicians Law Alert Fall 2008.

WHO SHOULD BE YOUR TRUSTEE? I am often asked who would be the appropriate person or entity to serve as a trustee. There is no right answer, and it always depends on the specific circumstance for the family involved. This letter will provide you with a general checklist of pros and cons for consideration of […]

HOW TO PROTECT YOURSELF FROM IDENTITY THEFT Think that identity theft will never happen to you? Consider the following information.     View Business Law Alert Fall 2008.

The ADA Amendments Act of 2008 (ADAAA) was recently signed into law and will go into effect January 1, 2009. It significantly expands the reach of the original Americans with Disabilities Act (ADA) to include more individuals with less severe impairments. Although the ADAAA retains the ADA’s definition of disability, it expands the terms used […]

Learn what to look for, what questions to ask during discovery, and how to use ESI to your advantage.   View 2008 September FTD – The Admissibility of Electronically Stored Information.

Police departments must train officers and implement policies to comply with ADA requirements.   View FTD-0706-Conder.