Representative cases

United States Supreme Court:

 

Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

Is a cheerleading uniform pattern the design of a useful article or two-dimensional graphic artwork? This is an important question for the multibillion-dollar fashion design industry because a graphic work may be protected under the Copyright Act but the design of a useful article, such as a dress, is not. I was part of a team that successfully petitioned the U.S. Supreme Court to clarify the test courts must use to answer the question of determining whether a two-dimensional work is the design of a useful article or a protectable work of graphic art.

 

United States Court of Appeals for the Sixth Circuit:

 

Beijing Fito Medical Co. v. Wright Medical Tech., Inc., 2019 U.S. App. LEXIS 3796 (6th Cir. 2019).

This case involved claims for breach of contract and interference with business relations brought by a Chinese distributor against an American manufacturer. The Sixth Circuit agreed with our argument that the implied duty of good faith and fair dealing was applicable to the distributor’s claim. However, the court held that the distributor could not show the manufacturer was guilty of bad faith, applying a higher standard than previously applied by courts in Tennessee. Thus, although the court agreed the manufacturer’s “conduct may strike some as aggressive,” the court held the contract allowed the manufacturer to effectively terminate the agreement by assigning some products to a third party while simultaneously deleting the distributor’s authority to purchase all other products, leaving nothing for the distributor to distribute.

 

Drexel Chemical Co. v. Albaugh, Inc., 645 Fed. App’x 467 (6th Cir. 2016).

The Sixth Circuit affirmed a judgment in excess of $1,000,000 for our client arising from a generic pesticide marketer’s breach of a confidential contract in which the parties had agreed to share in the cost of maintaining the authority to distribute a herbicide for protecting corn from weeds. This was the second appeal in a case which resulted in affirming two separate judgments of more than $1,000,000 for our client, enforcing a contract for reimbursement in the highly regulated area of registration under FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act.

 

Village Green I, GP v. Federal Nat’l Mort. Asso’n, 811 F.3d 816 (6th Cir. 2016).

The Sixth Circuit affirmed the district court’s ruling that the bankruptcy reorganization plan of our client, an apartment complex owner, should not be confirmed, despite the bankruptcy court’s approval. According to the appellate court, the plan created an impaired class of creditors solely to obtain approval of the plan under the Bankruptcy Code’s provisions.

 

Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015).

In a case of first impression in the Sixth Circuit, the court adopted a new test for determining whether two-dimensional cheerleading uniform designs, depicted in copyrighted sketches and photographs, were the designs of useful articles which would not be protected under the Copyright Act. Declining to use tests from the Second, Seventh, and Fifth Circuits, the Sixth Circuit’s ruling created a split in the federal appellate courts on application of copyright protection for two-dimensional uniform designs. The U.S. Supreme Court ultimately agreed to resolve the conflict in response to our petition for certiorari.

 

Drexel Chemical Co. v. Albaugh, Inc., 489 Fed. App’x 63 (6th Cir. 2012).

The Sixth Circuit affirmed a judgment in excess of $1,000,000 for our client, a marketer of generic pesticides, for breach of a contract against another manufacturer who failed to pay its share of the cost of maintaining the authority to distribute a widely used herbicide. The appellate court remanded the case for trial on our client’s other claims for additional damages, finding that the claims should not have been dismissed. Another $1,000,000 was awarded at trial on remand.

 

Culver v. CCL Label, Inc., 455 Fed. App’x 625 (6th Cir. 2012).

The Sixth Circuit affirmed the dismissal of a claim against our client by a female employee who claimed to be discriminated against when she was not given a promotion to a job she wanted but was not qualified to do. The plaintiff was seeking damages of more than a million dollars; the trial judge granted our client’s motion to dismiss at the conclusion of the plaintiff’s proof, agreeing the employee had failed to prove she had been discriminated against.

 

Provident Bank v. Tennessee Farmers Mut’l Ins. Co., 234 Fed.App’x. 393 (6th Cir. 2007).

The Sixth Circuit reversed the trial court’s dismissal of our client’s claim under a mortgagee clause in a property insurance policy, holding the insurer was obligated to pay a fire loss to the lender/mortgage holder because the borrower/insured’s bankruptcy was not an increase in the insurer’s risk of hazard under long-settled rules of law.

 

Hedgepeth v. State of Tennessee, 215 F.3d 608 (6th Cir. 2000).

The court of appeals held that a putative class action under the federal ADA on behalf of holders of disabled parking placards was barred by the 11th Amendment, prohibiting states from being enjoined from collecting taxes.

 

 

 

Baptist Memorial Hospital v. Marsaw, 208 F.3d 212 (6th Cir. 2000), cert. denied sub nom., Baptist Memorial Hospital v. Bakery & Confectionary Union & Industry Int’l Health Benefits Fund, 530 U.S. 1245 (2000).

In a case of first impression, the Sixth Circuit declined to equitably toll the time limitation for a hospital to submit a claim for benefits under an ERISA-regulated employee health benefit plan even though the patient was unable to inform the hospital of all potential coverages because he became incompetent during his hospitalization and could inform the hospital of possible coverage under his estranged wife’s plan.  

 

World Color Press, Inc., v. Forcum-Lannom Associates, Inc., 205 F.3d 1343 (6th Cir. 2000).

The Sixth Circuit affirmed the dismissal of a claim against our client, a corporation that had formally been dissolved under Tennessee law, because the claim was untimely, having been filed after formal dissolution was complete.  

 

Baptist Memorial Hospital v. Pan American Life Ins. Co., 45 F.3d 992 (6th Cir. 1995), cert. denied, 516 U.S. 824 (1995).

The Sixth Circuit affirmed a judgment against one of two employee health benefit plans for a large hospital bill but reversed the trial court’s award of double damages to the hospital under the Medicare Secondary Payer statute.

 

Velsicol Chemical Corp. v. Enenco, Inc. and Browning-Ferris Industries of Tenn., Inc., 9 F.3d 524 (6th Cir. 1993).

The Sixth Circuit, in a case of first impression, held that laches did not bar a chemical company’s claim for contribution for clean-up costs under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, associated with the remediation of a municipal disposal site, reinstating a claim against our client, a private waste hauling company, Browning-Ferris Industries, Inc. (BFI).

 

Patton v. Bearden, 8 F.3d 343 (6th Cir. 1993).

The Sixth Circuit affirmed a judgment for royalties owed under a fish-breading mix agreement, finding that laches was not an issue and the assigned agreement was enforceable.

 

United States Court of Appeals for the Fifth Circuit:

 

Barhan v. Ry-Ron, Inc., 121 F.3d 198 (5th Cir. 1997).

The Fifth Circuit held an employee health benefit plan’s denial of our client’s claim for coverage for high-dose chemotherapy with stem-cell transplant treatment for her breast cancer condition on the ground that it was an experimental treatment was not supported by the benefit’s administrative record.

 

Vulcan Const. Materials, LP, v. McLea Developers, Inc., 252 Fed. App’x 607 (5th Cir. 2007).

The Fifth Circuit affirmed a judgment for our client, a subcontractor, under the Miller Act against a general contractor for paving materials installed in an expansion of a U.S. Air Force base, rejecting the contractor’s position that he was not personally liable for the debt.

 

Chase-Cavett Services, Inc. v. Baptist Memorial Hospital, 7 F.3d 229 (5th Cir. 1993).

The Fifth Circuit affirmed a judgment for our client, after a trial, brought by a factoring company seeking to collect for unauthorized or phantom purchases made by a discharged employee.

 

Supreme Court of Tennessee:

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 277 S.W.3d 381 (Tenn. 2009).

The Tennessee Supreme Court reversed the appellate court’s ruling that our client’s claim under a mortgagee clause in a property insurance policy should not have been dismissed, holding that a borrower/insured’s bankruptcy was not an increase in the insurer’s risk of loss with respect to the lender/mortgagee under long-settled rules of law.

 

Cross v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000).

The Tennessee Supreme Court resolved a split among sections of the state intermediate appellate court as to the proper standard of review for claims under the Governmental Tort Liability Act, accepting our client’s request for review.

Bellamy v. Federal Express Corp., 749 S.W.2d 31 (Tenn. 1988).

The Supreme Court reversed the appellate court’s ruling that an employer’s violation of a worker’s safety statute did not bar the employer from raising the defense of the claimant’s contributory negligence in a damage claim arising from a construction worksite.

 

Court of Appeals of Tennessee:

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 2012 WL 5985097 (Tenn. Ct. App. 2012).

The court of appeals affirmed the trial court’s finding that a property insurer was obligated to pay the mortgagee/lender’s claim for fire loss but reversed the judgment for our client under the Tennessee Consumer Protection Act and the common law for bad faith by the insurer, after the case had been remanded from the Tennessee Supreme Court following our successful first appeal.  

 

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 2007 WL 4463959 (Tenn. Ct. App. 2007).

The court of appeals, in a case of first impression in Tennessee, reversed the trial court’s determination that a borrower/insured’s bankruptcy was not an increase in hazard to the property under the mortgagee clause of a property insurance policy. The Tennessee Supreme Court granted our application to review the appellate court’s decision and reversed this ruling.

 

Duke v. Browning-Ferris Industries of Tennessee, Inc., 2006 WL 1491547 (Tenn. Ct. App. 2006).

The court of appeals affirmed the summary dismissal of the plaintiff’s class action claims against our client, BFI, that a waste hauling contract could be the basis of a state antitrust claim.

 

First State Bank of Holly Springs, Miss. v. Wyssbrod, 124 S.W.3d 566 (Tenn. Ct. App. 2003).

The court of appeals affirmed the trial court’s enrollment of a foreign judgment under the Full Faith and Credit Clause of the U.S. Constitution, arising from a Tennessee attorney’s handling of an intra-corporate dispute in Mississippi.

 

Thornton v. Countrywide Home Loans, Inc., 2000 WL 33191366 (Tenn. Ct. App. 2000).

The court of appeals affirmed the trial court’s ruling in favor of our client, South Trust Bank, the mortgagee, rejecting the borrower’s attempt to enjoin a foreclosure on a defaulted loan secured by a mortgage on a residence, because some of the loan proceeds were used for business.

 

Citizens for Collierville, Inc. v. Town of Collierville, 977 S.W.2d 321 (Tenn. Ct. App. 1998).

The court of appeals affirmed the trial court’s finding that a suburban town had properly approved a hospital’s application for a planned use development in accordance with the town’s zoning regulations.

 

Reliance Insurance Co. v. WSN Leasing, Inc., 1997 WL 396835 (Tenn. Ct. App. 1997).

The court of appeals affirmed the trial court’s rejection of a business-insured’s claim for attorney’s fees under a Florida statute after the insurer, our client, settled a third-party liability claim against the insured under a comprehensive general liability insurance policy, because the insured’s claim for coverage, which the trial court had found for the insurer, was now moot due to the settlement of the third-party claim.

 

 

Drexel Chemical Co. v. Bituminous Insurance Co., 933 S.W.2d 471 (Tenn. Ct. App. 1996).

In a case of first impression in Tennessee, the court of appeals held that a manufacturer and marketer of generic pesticides was not entitled to coverage under a comprehensive general liability insurance policy for spills of chemicals at a formulator facility during the transportation and formulation process because, according to the appellate court, these spills were expected and intended within the meaning of the policy.

 

Browning-Ferris Industries of Tennessee, Inc. v. Metro. Gov’t of Nashville, 1991 WL 219383 (Tenn. Ct. App. 1991).

The issue in this case was the validity of a municipality’s regulations requiring private waste hauling companies to dispose of all solid waste collected within the municipality's boundaries at the municipality’s land fill or its thermal plant, so-called “flow control” ordinances. The court of appeals affirmed the trial court’s determination that the regulations were within the broad authority of the empowering statute.

 

Kirksey v. Overton Pub, Inc., d/b/a East End Grill, 804 S.W.2d 68 (Tenn. Ct. App. 1990).

The court of appeals affirmed the trial court’s judgment, following a jury trial, in favor of our clients, a bar and its bartenders, who were sued by the family of a customer who died after “winning” a wager that he could consume 10 alcoholic beverages within an hour, holding that the jury could have found the deceased was guilty of contributory negligence.

 

Richards Mfg Co. v. Great American Ins. Co., 773 S.W.2d 916 (Tenn. Ct. App. 1988).

The court of appeals held that the definition of “occurrence” under a comprehensive general liability insurance policy was broad enough to provide coverage for punitive damages awarded by a jury in California in a product liability action against our client, Richards Manufacturing Company, now Smith & Nephew.

 

Kirksey v. Overton Pub, Inc., d/b/a East End Grill, 739 S.W.2d 230 (Tenn. Ct. App. 1987).

The court of appeals held that a bar and its bartender employees could be guilty of negligence per se in serving a visibly intoxicated person during a private bet between two bar patrons which was a question of law that should have been submitted to the jury for determination.

 

Kelley v.  National Home Life Assurance Co., 1987 WL 7725 (Tenn. Ct. App. 1987).

The court of appeals affirmed the dismissal of a claim for life insurance benefits under a policy when the applicant, a multiple amputee who was hospitalized for certain serious medical conditions, submitted an application with multiple false and misleading statements concerning the applicant’s health.

 

 

 

Court of Criminal Appeals of Tennessee:

 

State of Tenn. v. Leonard Franklin, No. W2002-3008-CCA-R3-CD (Tenn. Ct. Crim. App. 2003).

The court of criminal appeals affirmed a judgment against a doctor for simple assault arising out of an incident in the doctor’s office in which the doctor struck an employee in the head with a clipboard, rejecting our client’s argument that the sentence was disproportionate to the crime.

 

Supreme Court of Mississippi:

 

Briggs & Stratton Corp., Automotive Electric Corporation d/b/a Engine Power Distributors v. Smith, 854 So.2d 1045 (Miss. 2003).

The Mississippi Supreme Court held that a claim for tortious breach of contract and interference with business relations were tort claims which could not be tried in Chancery Court against our client and must be transferred to the Circuit Court for trial. On remand, I tried the case and the jury returned a verdict for our client even after the co-defendant, Briggs & Stratton Corporation, settled with the plaintiff in secret negotiations the night before trial and attempted to gain an unfair advantage by prohibiting key witnesses from cooperating with our defense.

 

Arkansas Court of Appeals:

 

Tyrone v. Dennis, 73 Ark. App. 209, 39 S.W.3d 800 (2001).

The court of appeals applied Arkansas’s strict default rule to affirm a default judgment against our client despite confusion on the part of the insurer in assigning the case to counsel and the plaintiff’s knowledge of defendant’s counsel’s involvement in the case immediately after assignment was made.

 

United States District Court for the Western District of Tennessee:

 

Varsity Brands, Inc. v. Star Athletica, LLC, 2014 WL 819422 (W.D. Tenn., March 1, 2014).

The district court granted our client’s motion for summary judgment, holding that a cheerleading manufacturer’s copyrighted two-dimensional graphic works, though copyrightable, did not prohibit a competitor from manufacturing three-dimensional uniforms similar to the two-dimensional designs.

 

Baptist Memorial Hospital v. Marsaw, 13 F.Supp.2d 696 (W.D. Tenn. 1998).

The district court declined to apply equitable tolling as a matter of federal common law to a hospital’s claim to an ERISA-regulated employee health benefit plan even though the patient was incompetent during his inpatient admission and was unable to inform the hospital of potential coverage under the plan.

 

Snow v. Aetna Ins. Co., 998 F. Supp. 852 (W.D. Tenn. 1998).

The district court found, after a trial, a spouse’s employee health benefit plan was the primary payer for a large hospital bill for treating the spouse’s husband who suffered a heart attack. The coverage question was complicated because the husband had coverage under his own plan, her spouse had coverage under another, and the employee’s spouse was also eligible for coverage under Medicare, which potentially triggered the Medicare Secondary Payer statute’s double-payment provision.

 

US v. Velsicol Chemical Corp., 1991 WL 533765 (W.D. Tenn. 1991).

The district court granted our client’s motion for summary judgment, dismissing a chemical company’s claim for contribution under CERCLA for clean-up costs associated with the remediation of a municipal disposal site against our client, BFI, the successor to a private waste hauling company that had transported solid waste to the dump site in the 1950’s and 1960’s.

 

Michael F. Rafferty:  Representative Cases

 

United States Supreme Court:

 

Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

Is a cheerleading uniform pattern the design of a useful article or two-dimensional graphic artwork? This is an important question for the multibillion-dollar fashion design industry because a graphic work may be protected under the Copyright Act but the design of a useful article, such as a dress, is not. I was part of a team that successfully petitioned the U.S. Supreme Court to clarify the test courts must use to answer the question of determining whether a two-dimensional work is the design of a useful article or a protectable work of graphic art.

 

United States Court of Appeals for the Sixth Circuit:

 

Beijing Fito Medical Co. v. Wright Medical Tech., Inc., 2019 U.S. App. LEXIS 3796 (6th Cir. 2019).

This case involved claims for breach of contract and interference with business relations brought by a Chinese distributor against an American manufacturer. The Sixth Circuit agreed with our argument that the implied duty of good faith and fair dealing was applicable to the distributor’s claim. However, the court held that the distributor could not show the manufacturer was guilty of bad faith, applying a higher standard than previously applied by courts in Tennessee. Thus, although the court agreed the manufacturer’s “conduct may strike some as aggressive,” the court held the contract allowed the manufacturer to effectively terminate the agreement by assigning some products to a third party while simultaneously deleting the distributor’s authority to purchase all other products, leaving nothing for the distributor to distribute.

 

Drexel Chemical Co. v. Albaugh, Inc., 645 Fed. App’x 467 (6th Cir. 2016).

The Sixth Circuit affirmed a judgment in excess of $1,000,000 for our client arising from a generic pesticide marketer’s breach of a confidential contract in which the parties had agreed to share in the cost of maintaining the authority to distribute a herbicide for protecting corn from weeds. This was the second appeal in a case which resulted in affirming two separate judgments of more than $1,000,000 for our client, enforcing a contract for reimbursement in the highly regulated area of registration under FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act.

 

Village Green I, GP v. Federal Nat’l Mort. Asso’n, 811 F.3d 816 (6th Cir. 2016).

The Sixth Circuit affirmed the district court’s ruling that the bankruptcy reorganization plan of our client, an apartment complex owner, should not be confirmed, despite the bankruptcy court’s approval. According to the appellate court, the plan created an impaired class of creditors solely to obtain approval of the plan under the Bankruptcy Code’s provisions.

 

Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015).

In a case of first impression in the Sixth Circuit, the court adopted a new test for determining whether two-dimensional cheerleading uniform designs, depicted in copyrighted sketches and photographs, were the designs of useful articles which would not be protected under the Copyright Act. Declining to use tests from the Second, Seventh, and Fifth Circuits, the Sixth Circuit’s ruling created a split in the federal appellate courts on application of copyright protection for two-dimensional uniform designs. The U.S. Supreme Court ultimately agreed to resolve the conflict in response to our petition for certiorari.

 

Drexel Chemical Co. v. Albaugh, Inc., 489 Fed. App’x 63 (6th Cir. 2012).

The Sixth Circuit affirmed a judgment in excess of $1,000,000 for our client, a marketer of generic pesticides, for breach of a contract against another manufacturer who failed to pay its share of the cost of maintaining the authority to distribute a widely used herbicide. The appellate court remanded the case for trial on our client’s other claims for additional damages, finding that the claims should not have been dismissed. Another $1,000,000 was awarded at trial on remand.

 

Culver v. CCL Label, Inc., 455 Fed. App’x 625 (6th Cir. 2012).

The Sixth Circuit affirmed the dismissal of a claim against our client by a female employee who claimed to be discriminated against when she was not given a promotion to a job she wanted but was not qualified to do. The plaintiff was seeking damages of more than a million dollars; the trial judge granted our client’s motion to dismiss at the conclusion of the plaintiff’s proof, agreeing the employee had failed to prove she had been discriminated against.

 

Provident Bank v. Tennessee Farmers Mut’l Ins. Co., 234 Fed.App’x. 393 (6th Cir. 2007).

The Sixth Circuit reversed the trial court’s dismissal of our client’s claim under a mortgagee clause in a property insurance policy, holding the insurer was obligated to pay a fire loss to the lender/mortgage holder because the borrower/insured’s bankruptcy was not an increase in the insurer’s risk of hazard under long-settled rules of law.

 

Hedgepeth v. State of Tennessee, 215 F.3d 608 (6th Cir. 2000).

The court of appeals held that a putative class action under the federal ADA on behalf of holders of disabled parking placards was barred by the 11th Amendment, prohibiting states from being enjoined from collecting taxes.

 

 

 

Baptist Memorial Hospital v. Marsaw, 208 F.3d 212 (6th Cir. 2000), cert. denied sub nom., Baptist Memorial Hospital v. Bakery & Confectionary Union & Industry Int’l Health Benefits Fund, 530 U.S. 1245 (2000).

In a case of first impression, the Sixth Circuit declined to equitably toll the time limitation for a hospital to submit a claim for benefits under an ERISA-regulated employee health benefit plan even though the patient was unable to inform the hospital of all potential coverages because he became incompetent during his hospitalization and could inform the hospital of possible coverage under his estranged wife’s plan.  

 

World Color Press, Inc., v. Forcum-Lannom Associates, Inc., 205 F.3d 1343 (6th Cir. 2000).

The Sixth Circuit affirmed the dismissal of a claim against our client, a corporation that had formally been dissolved under Tennessee law, because the claim was untimely, having been filed after formal dissolution was complete.  

 

Baptist Memorial Hospital v. Pan American Life Ins. Co., 45 F.3d 992 (6th Cir. 1995), cert. denied, 516 U.S. 824 (1995).

The Sixth Circuit affirmed a judgment against one of two employee health benefit plans for a large hospital bill but reversed the trial court’s award of double damages to the hospital under the Medicare Secondary Payer statute.

 

Velsicol Chemical Corp. v. Enenco, Inc. and Browning-Ferris Industries of Tenn., Inc., 9 F.3d 524 (6th Cir. 1993).

The Sixth Circuit, in a case of first impression, held that laches did not bar a chemical company’s claim for contribution for clean-up costs under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, associated with the remediation of a municipal disposal site, reinstating a claim against our client, a private waste hauling company, Browning-Ferris Industries, Inc. (BFI).

 

Patton v. Bearden, 8 F.3d 343 (6th Cir. 1993).

The Sixth Circuit affirmed a judgment for royalties owed under a fish-breading mix agreement, finding that laches was not an issue and the assigned agreement was enforceable.

 

United States Court of Appeals for the Fifth Circuit:

 

Barhan v. Ry-Ron, Inc., 121 F.3d 198 (5th Cir. 1997).

The Fifth Circuit held an employee health benefit plan’s denial of our client’s claim for coverage for high-dose chemotherapy with stem-cell transplant treatment for her breast cancer condition on the ground that it was an experimental treatment was not supported by the benefit’s administrative record.

 

Vulcan Const. Materials, LP, v. McLea Developers, Inc., 252 Fed. App’x 607 (5th Cir. 2007).

The Fifth Circuit affirmed a judgment for our client, a subcontractor, under the Miller Act against a general contractor for paving materials installed in an expansion of a U.S. Air Force base, rejecting the contractor’s position that he was not personally liable for the debt.

 

Chase-Cavett Services, Inc. v. Baptist Memorial Hospital, 7 F.3d 229 (5th Cir. 1993).

The Fifth Circuit affirmed a judgment for our client, after a trial, brought by a factoring company seeking to collect for unauthorized or phantom purchases made by a discharged employee.

 

Supreme Court of Tennessee:

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 277 S.W.3d 381 (Tenn. 2009).

The Tennessee Supreme Court reversed the appellate court’s ruling that our client’s claim under a mortgagee clause in a property insurance policy should not have been dismissed, holding that a borrower/insured’s bankruptcy was not an increase in the insurer’s risk of loss with respect to the lender/mortgagee under long-settled rules of law.

 

Cross v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000).

The Tennessee Supreme Court resolved a split among sections of the state intermediate appellate court as to the proper standard of review for claims under the Governmental Tort Liability Act, accepting our client’s request for review.

Bellamy v. Federal Express Corp., 749 S.W.2d 31 (Tenn. 1988).

The Supreme Court reversed the appellate court’s ruling that an employer’s violation of a worker’s safety statute did not bar the employer from raising the defense of the claimant’s contributory negligence in a damage claim arising from a construction worksite.

 

Court of Appeals of Tennessee:

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 2012 WL 5985097 (Tenn. Ct. App. 2012).

The court of appeals affirmed the trial court’s finding that a property insurer was obligated to pay the mortgagee/lender’s claim for fire loss but reversed the judgment for our client under the Tennessee Consumer Protection Act and the common law for bad faith by the insurer, after the case had been remanded from the Tennessee Supreme Court following our successful first appeal.  

 

 

US Bank, NA, as Servicer for the Tenn. Housing Development Agency v. Tennessee Farmers Mut’l Ins. Co., 2007 WL 4463959 (Tenn. Ct. App. 2007).

The court of appeals, in a case of first impression in Tennessee, reversed the trial court’s determination that a borrower/insured’s bankruptcy was not an increase in hazard to the property under the mortgagee clause of a property insurance policy. The Tennessee Supreme Court granted our application to review the appellate court’s decision and reversed this ruling.

 

Duke v. Browning-Ferris Industries of Tennessee, Inc., 2006 WL 1491547 (Tenn. Ct. App. 2006).

The court of appeals affirmed the summary dismissal of the plaintiff’s class action claims against our client, BFI, that a waste hauling contract could be the basis of a state antitrust claim.

 

First State Bank of Holly Springs, Miss. v. Wyssbrod, 124 S.W.3d 566 (Tenn. Ct. App. 2003).

The court of appeals affirmed the trial court’s enrollment of a foreign judgment under the Full Faith and Credit Clause of the U.S. Constitution, arising from a Tennessee attorney’s handling of an intra-corporate dispute in Mississippi.

 

Thornton v. Countrywide Home Loans, Inc., 2000 WL 33191366 (Tenn. Ct. App. 2000).

The court of appeals affirmed the trial court’s ruling in favor of our client, South Trust Bank, the mortgagee, rejecting the borrower’s attempt to enjoin a foreclosure on a defaulted loan secured by a mortgage on a residence, because some of the loan proceeds were used for business.

 

Citizens for Collierville, Inc. v. Town of Collierville, 977 S.W.2d 321 (Tenn. Ct. App. 1998).

The court of appeals affirmed the trial court’s finding that a suburban town had properly approved a hospital’s application for a planned use development in accordance with the town’s zoning regulations.

 

Reliance Insurance Co. v. WSN Leasing, Inc., 1997 WL 396835 (Tenn. Ct. App. 1997).

The court of appeals affirmed the trial court’s rejection of a business-insured’s claim for attorney’s fees under a Florida statute after the insurer, our client, settled a third-party liability claim against the insured under a comprehensive general liability insurance policy, because the insured’s claim for coverage, which the trial court had found for the insurer, was now moot due to the settlement of the third-party claim.

 

 

Drexel Chemical Co. v. Bituminous Insurance Co., 933 S.W.2d 471 (Tenn. Ct. App. 1996).

In a case of first impression in Tennessee, the court of appeals held that a manufacturer and marketer of generic pesticides was not entitled to coverage under a comprehensive general liability insurance policy for spills of chemicals at a formulator facility during the transportation and formulation process because, according to the appellate court, these spills were expected and intended within the meaning of the policy.

 

Browning-Ferris Industries of Tennessee, Inc. v. Metro. Gov’t of Nashville, 1991 WL 219383 (Tenn. Ct. App. 1991).

The issue in this case was the validity of a municipality’s regulations requiring private waste hauling companies to dispose of all solid waste collected within the municipality's boundaries at the municipality’s land fill or its thermal plant, so-called “flow control” ordinances. The court of appeals affirmed the trial court’s determination that the regulations were within the broad authority of the empowering statute.

 

Kirksey v. Overton Pub, Inc., d/b/a East End Grill, 804 S.W.2d 68 (Tenn. Ct. App. 1990).

The court of appeals affirmed the trial court’s judgment, following a jury trial, in favor of our clients, a bar and its bartenders, who were sued by the family of a customer who died after “winning” a wager that he could consume 10 alcoholic beverages within an hour, holding that the jury could have found the deceased was guilty of contributory negligence.

 

Richards Mfg Co. v. Great American Ins. Co., 773 S.W.2d 916 (Tenn. Ct. App. 1988).

The court of appeals held that the definition of “occurrence” under a comprehensive general liability insurance policy was broad enough to provide coverage for punitive damages awarded by a jury in California in a product liability action against our client, Richards Manufacturing Company, now Smith & Nephew.

 

Kirksey v. Overton Pub, Inc., d/b/a East End Grill, 739 S.W.2d 230 (Tenn. Ct. App. 1987).

The court of appeals held that a bar and its bartender employees could be guilty of negligence per se in serving a visibly intoxicated person during a private bet between two bar patrons which was a question of law that should have been submitted to the jury for determination.

 

Kelley v.  National Home Life Assurance Co., 1987 WL 7725 (Tenn. Ct. App. 1987).

The court of appeals affirmed the dismissal of a claim for life insurance benefits under a policy when the applicant, a multiple amputee who was hospitalized for certain serious medical conditions, submitted an application with multiple false and misleading statements concerning the applicant’s health.

 

 

 

Court of Criminal Appeals of Tennessee:

 

State of Tenn. v. Leonard Franklin, No. W2002-3008-CCA-R3-CD (Tenn. Ct. Crim. App. 2003).

The court of criminal appeals affirmed a judgment against a doctor for simple assault arising out of an incident in the doctor’s office in which the doctor struck an employee in the head with a clipboard, rejecting our client’s argument that the sentence was disproportionate to the crime.

 

Supreme Court of Mississippi:

 

Briggs & Stratton Corp., Automotive Electric Corporation d/b/a Engine Power Distributors v. Smith, 854 So.2d 1045 (Miss. 2003).

The Mississippi Supreme Court held that a claim for tortious breach of contract and interference with business relations were tort claims which could not be tried in Chancery Court against our client and must be transferred to the Circuit Court for trial. On remand, I tried the case and the jury returned a verdict for our client even after the co-defendant, Briggs & Stratton Corporation, settled with the plaintiff in secret negotiations the night before trial and attempted to gain an unfair advantage by prohibiting key witnesses from cooperating with our defense.

 

Arkansas Court of Appeals:

 

Tyrone v. Dennis, 73 Ark. App. 209, 39 S.W.3d 800 (2001).

The court of appeals applied Arkansas’s strict default rule to affirm a default judgment against our client despite confusion on the part of the insurer in assigning the case to counsel and the plaintiff’s knowledge of defendant’s counsel’s involvement in the case immediately after assignment was made.

 

United States District Court for the Western District of Tennessee

 

Varsity Brands, Inc. v. Star Athletica, LLC, 2014 WL 819422 (W.D. Tenn., March 1, 2014).

The district court granted our client’s motion for summary judgment, holding that a cheerleading manufacturer’s copyrighted two-dimensional graphic works, though copyrightable, did not prohibit a competitor from manufacturing three-dimensional uniforms similar to the two-dimensional designs.

 

Baptist Memorial Hospital v. Marsaw, 13 F.Supp.2d 696 (W.D. Tenn. 1998).

The district court declined to apply equitable tolling as a matter of federal common law to a hospital’s claim to an ERISA-regulated employee health benefit plan even though the patient was incompetent during his inpatient admission and was unable to inform the hospital of potential coverage under the plan.

 

Snow v. Aetna Ins. Co., 998 F. Supp. 852 (W.D. Tenn. 1998).

The district court found, after a trial, a spouse’s employee health benefit plan was the primary payer for a large hospital bill for treating the spouse’s husband who suffered a heart attack. The coverage question was complicated because the husband had coverage under his own plan, her spouse had coverage under another, and the employee’s spouse was also eligible for coverage under Medicare, which potentially triggered the Medicare Secondary Payer statute’s double-payment provision.

 

US v. Velsicol Chemical Corp., 1991 WL 533765 (W.D. Tenn. 1991).

The district court granted our client’s motion for summary judgment, dismissing a chemical company’s claim for contribution under CERCLA for clean-up costs associated with the remediation of a municipal disposal site against our client, BFI, the successor to a private waste hauling company that had transported solid waste to the dump site in the 1950’s and 1960’s.