Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

My sister received a significant head injury in an automobile wreck caused when a truck crossed the centerline of a road in Tennessee.  Is there a limit on the damages she can recover in the case?

There is no limit on the damages she can recover for medical expenses or  loss of earning capacity.  However, if the wreck occurred on or after October 1, 2012, there is a limit on the damages she can recover for pain, suffering, disfigurement, and loss of enjoyment of life - referred to by the Legislature as "non-economic damages."  That limit is $750,000.

The Legislature has determined that no person can recover non-economic damages in excess of $750,000 unless the injury is "catastrophic" or the falls within a narrow class of exclusions (for example, the defendant was under the influence of alcohol).  Shockingly, a brain injury is not considered a catastrophic loss by the Tennessee General Assembly.  Even if an injury is determined to be catastrophic non-economic damages are limited to $1,000,000.

A constitutional challenge is expected to be made to this legislation.  However, until the Tennessee Supreme Court hears a case where this issue is raised, judges and juries will be required to apply this law and limit recoveries accordingly.

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My wife was killed in an automobile wreck.  She was alone in the car.  The other driver says the wreck was her fault, but I don't believe it.  How can I prove what happened?

You need the help of an experienced automobile wreck attorney to lead an investigation into what happened.

Tennessee law provides that, because your wife is not able to testify about what happened, she is presumed to have been exercising due care at the time of the wreck.  However, other testimony and evidence can make that presumption disappear. 

An experienced car accident lawyer knows how to investigate car wrecks and, as appropriate, work with others to determine how the wreck occurred.  The police report may contain the names of witnesses to the wreck - these people need to be located and interviewed.  People who live and work in the area may have observed the wreck but not have their names appear on the report.  Physical evidence, such as skid marks, yaw marks, and gouge marks may be present on the roadway.  The damage to the vehicles often yields information about how the wreck occurred, and many newer vehicles contain data recorders that can provide helpful information.

The key is to gather that data early.  Physical evidence can disappear, and memories fade.  You are encouraged to act quickly to secure the services of an experienced automobile wreck lawyer.

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The general rule in Tennessee is that a personal injury lawsuit for an adult must be filed within one year of the date of an incident causing an injury.   The failure to file a lawsuit on time will result in a loss of the right to bring a claim even if the case is otherwise valid

There are several exceptions to that rule, some that shorten the period in which a lawsuit must be filed and other exceptions which lengthen the period for action.  For instance, if you are injured by a defective or unreasonably dangerous product you must bring your claim within one year of the date of the injury but also within ten years of the date the product was sold to the first user or consumer.  

For example, assume that you were hurt on January 31, 2012 because of a defect in a car that was sold to the first user or consumer on June 30, 2002.  Under Tennessee law, you would have only five months to file a lawsuit against the car manufacturer or the manufacturer of the part or parts that were defective.

There are other unusual (and often unfair) rules under Tennessee law.  You should not attempt to figure out that application of those rules yourself - you will need the help of an experienced Tennessee personal injury attorney to help you.  

So, how do you protect yourself?  When you are injured or are a family member or close friend of an injured person who cannot act for himself or herself, seek the advice of an experienced  lawyer as soon as possible.  There are all sorts of reasons for quick action (securing physical evidence, witness investigation, etc.) but quick action will also help you know for sure how much time is available to take appropriate legal action if it is warranted.  

Do not wait until your recover from your injuries to talk to a lawyer.  Do not assume that your injuries will heal without long-term impact on your life.  Our office does not charge for an initial consultation about your case.

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My son was seriously injured in a auto accident.  What rights do I have as his parent  in a lawsuit against the person who caused the wreck? 

You have the right to recover medical expenses that you paid or were paid by your insurance company.  (You almost certainly have to repay your health insurance company out of the settlement or judgment.)  You can also recover damages for loss of services of your child.

Under Tennessee law, you cannot recover damages loss of the relationship between you and your child because of the injuries or for your emotional distress at seeing your child deal with his injuries.  

However, you may be able to recover damages for emotional distress if you saw or heard the wreck your son or came up on the scene of the event shortly after the dog attack occurred.    An experienced personal injury lawyer can tell you whether you qualify for recovery of this type of damages - they are dependent of the details of your case and your emotional injuries, if any. 

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In any type of Tennessee personal injury case,  including injuries caused by careless truck drivers or trucking companies,  an injured person  can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

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I believe that I was a victim of medical malpractice while I was a patient at the VA hospital in Nashville.  How much time do I have to file a medical malpractice claim against the VA? 

You may have a claim under a law known as the Federal Tort Claims Act ("FTCA").  Under the FTCA, you cannot file suit without first filing a claim.  Generally, the claim must be filed in writing using the appropriate forms and paperwork within two years of the time after the accident or injury.  The claim must be filed with the appropriate federal agency.

The government then has six months to evaluate the claim.  It may try to settle the case, or it may deny the claim.  When the government denies a claim the claimant then has a right to file suit in federal court.  If the government does not deny or settle the claim within six months you can deem the claim denied and file suit in federal court. 

You will need the assistance of a lawyer to help you evaluate the case and handle the paperwork.  I would not recommend that you attempt to file the claim on your own because the failure to do it correctly can have a devastating effect on your claim.

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I was injured in a car wreck and have been out of work for months.  Money is very tight.  I spoke with a lawyer and he told me he could loan me $1000 a month until my case settles.  He also said that I do not have to pay interest.  That seems like a good deal to me, but another lawyer I spoke with refused to do it, saying it was not ethical.  What's the story?

The second attorney you spoke with was correct.  In Tennessee it is unethical for an attorney to loan you money while he or she is representing you in a case.   An attorney who promises to do so or actually does so should be reported to the Tennessee Board of Professional Responsibility at 800.486.5714.   This sort of conduct can result in discipline against the attorney, including the loss of his  law license.

Why should you care about the ethical failings of an attorney?  If the attorney is willing to risk his or her law license to get  your case, do you really think you can trust them to represent you with your best interests in mind?  

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I have a disability insurance policy through my job.  I am disabled but the disability insurance company still says I have to submit and claim and go through all the paperwork.  The company says it is up to me whether or not I get a lawyer.  Do I need a lawyer?

I strongly recommend that you have the help of a lawyer.  It sounds like your policy is going to be covered by a special federal law and, if your policy has language in it that is often found in such policies, a federal court that reviews any  denial of your claim will be largely limited to looking only at the same evidence the insurance company looked at when it denied your claim.  Thus, it is extremely important that your file with the insurance company contain all of the relevant material that can be used to support your claim,  An experienced lawyer knows what material to submit in support of your claim and how to make the most persuasive argument that can be made on your behalf.

Also, depending on the language of your policy, it may be very difficult for a federal court to reverse the insurance company's decision to deny you benefits.  If the policy so states, the judge can only reverse a decision to deny benefits if the judge finds that the insurance company "abused its discretion"  in making its decision.

All too many people think that they can handle a claim for disability  on their own and get a lawyer involved only after an appeal has been denied.  Unfortunately, in many cases, the failure to get the help of an experienced lawyer involved early  not only means the loss of an appeal but also the loss of the entire claim.  While no lawyer can promise you that a claim will be approved if you have a lawyer's help, it is fair to say that your chances of having your claim approved increase if you have the help of a lawyer.

Many lawyers who do this type of work will work on a contingent fee basis, which means that they only get paid if they are successful in getting your claim approved.  The Law Offices of John Day, P.C. helps people with long-term disability claims.

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I see a lot of Tennessee personal injury lawyers state that they are members of various bar associations.  Does the fact that a lawyer is a member of a bar association mean anything to someone who is trying to select a lawyer to represent them in a personal injury or wrongful death case? 

Many lawyers advertise that they are members of the Tennessee Bar Association, the American Bar Association, and / or their local bar association. Mere membership in these organizations tells consumers virtually nothing about a lawyer’s competence – all one needs to join these organizations is a law license and the money to pay the dues.

However, active membership in a bar association tends to indicate that the lawyer is interested in advancement of his or her profession. This is a relevant factor to be weighed by consumers because it indicates a passion for the law. A lawyer who has been active in bar associations will list those activities on his or her website. Those that do not list activities probably have not been active and are probably just dues-paying members.

Membership, particularly active membership in certain other types of bar associations is an important consideration for those who seek to hire a personal injury or wrongful death lawyer. A lawyer who does personal injury or wrongful death litigation on behalf of consumers should be a member of the Tennessee Association for Justice and the American Association for Justice. Once again, these associations have no entrance qualifications other than a law license and the ability to pay dues, but a lawyer who says he or she does personal injury and wrongful death work and does not belong to these organizations is, in our opinion, either not truly committed to protecting the rights of personal injury victims and their families or is too cheap to support the efforts of these organizations.

Both of these organizations work with legislators to help keep the courthouse doors open for ordinary people and work to educate their members. If a lawyer who seeks your case does not belong to these groups (both of them, not just one or the other), we respectfully suggest that you not even consider he or she to be your lawyer. If the lawyer is a member of both groups, then look to see how active he or she is in the organizations.

Those lawyers that are or have been committee chairs or members of the executive committee of these organizations have demonstrated that they are willing to volunteer their time to preserve the right of citizens to access the court system. Those who are merely members are at least saying that they will pay dues to support the organizations, but are unwilling or unable to make the sacrifice necessary to advance the goals of the groups.

All of the members of Law Offices of John Day P.C. are members of the Tennessee Association for Justice and the American Association for Justice. John A. Day has been President of the TAJ’s predecessor organization and has served on its Board for over 25 years. John has also served on the Executive Committee of AAJ’s predecessor and as Chair of the Council of State Presidents.

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I was in a car accident in Springfield, Tennessee.  I was hurt but I am not sure that I want to get involved in a lawsuit because I don't want to give a deposition.  I really don't understand what a deposition is but my friend said she had to give a deposition and that it was bad.  What is a deposition anyway? 

A deposition is testimony given by a the person bring a lawsuit (the plaintiff) or the person who was sued (the defendant) or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. 

A deposition is usually taken in the office of one of the lawyers involved in the case, although I have taken depositions in conference rooms, motel rooms and, one time, a bar.  

At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful.   The deposition is taken by a lawyer asking questions of the deponent.   Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff.   Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

Most people are nervous about giving a deposition, but usually the lawyers involved are very courteous.  Any lawyer you hire to help you with your case should  prepare you for the deposition.  He or she will not tell you what to say about the event or your injuries, but he or she will give you basic rules for conducting yourself at the deposition and practice with you to give you a feel for the deposition process.

You should not let your fear of a deposition stop you from bringing a valid claim arising from a car accident or any other situation.

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I am in a lawsuit over a car accident that wasn't my fault.  The insurance company wants to see my old medical records.  What does my past medical treatment have to do with my  car wreck case involving a broken hip? 

Answer: Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim. 

In your particular case, the insurance company will be looking to see if you had a prior hip problem or other medical problem that affected your overall well-being or your able to work or enjoy recreational activities.  

The mere fact you were in a wreck doesn't mean that the insurance company has an automatic right to look at all of your medical records since the date you were born.  An experienced Tennessee car accident lawyer can often limit the scope of the record review by the at-fault driver's insurance company.

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What is uninsured motorist coverage?

If the driver that causes a Tennessee car accident  or truck accident does not have liability  insurance, your own automobile insurance coverage may also apply in provide a source for monetary recovery to pay your medical bills and compensate you for your injuries. This type of insurance coverage is called uninsured motorist coverage - it provides you protection when you are hurt by an uninsured driver. Subject to certain limitations, you may recover damages under your own uninsured motorist policy if the other driver is proven to be uninsured.

Uninsured motorist coverage must be offered to each person who buys liability insurance in Tennessee.  Thus, if you purchased liability insurance on your vehicle,  you have uninsured motorist coverage unless you waived your right to have it in writing. 

An experienced Tennessee car accident attorney or Tennessee truck accident attorney can examine your insurance policy and tell you whether you have this insurance coverage, the amount of the coverage, and whether any limitations in the law or the insurance policy limit your rights.  If you do not appear to have uninsured motorist coverage this attorney can also help you determine whether you waived your right to purchase the coverage in the manner required by Tennessee law.

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I  am a saleswoman for a office products company.  I was driving from one customer's place of business to see another customer when  I was in car wreck.    The other driver ran into me at 45 miles per hour as I was stopped in traffic.  My car was totaled and I spent three days in the hospital.  What are my rights?

You have two potential claims.  First, you have a worker's compensation claim because you were injured in the course of employment (assuming your employer has five or more employees).  Under Tennessee worker's compensation law, you have a right to have your medical bills paid and to receive a portion of your wages paid while you are unable to work.  If you have a permanent impairment as a result of your injuries you are entitled to a payment for the extent of disability caused by that impairment.

Second, you have a claim against the driver of the other car.  This is called a "tort" claim.

Since your injuries were serious enough to require hospitalization, you almost certainly could benefit from the assistance of an experienced personal injury lawyer.    This lawyer will be able to help you receive the benefits you are entitled to receive under the worker's compensation law and under tort law.

To preserve your worker's compensation claim rights be sure that your employer has notice that you were in the car wreck.  It is best to give notice in writing.   If the tort claim is not settled, a lawsuit must be filed within one year of the date of the wreck or your rights with be lost.  The time period for filing a worker's compensation claim is dependent on your medical treatment - an experienced Tennessee worker's compensation  lawyer can advise you of when you must act to protect your rights after he or she has been advised of your treatment course. 

You need to know that your employer's worker's compensation insurer will have a right to recover the money it pays in worker's compensation benefits from any monies you receive in your auto accident case.  Once again, an experienced Tennessee auto accident lawyer can explain this to you.

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