Editorial
Front Page - Friday, November 5, 2010
Case Digests: Tennesse Court of Appeals Syllabus
Federal Insurance Company, A/S/O Robert and Joanie Emerson v. Martin Edward Winters, D/B/A Winters Roofing Company.
Hamilton County – Plaintiff insurer of insured brought this action as a subrogee of the insureds, who had been paid under plaintiff’s policy for a fire loss to their home. The insureds had employed a roofer to replace their roof, whose subcontractor caused the fire which destroyed the home. Plaintiff brought this action to recover from defendant roofer who filed a Motion for Summary Judgment and the trial court ruled defendant could not be held liable in tort for the negligent acts of his subcontractor under the facts of this case, and plaintiff could not recover under the theory of contract, because plaintiff could not show that the loss was caused by the contractual services or foreseeable. On appeal, we hold that summary judgment was inappropriate, because under contract law the defendant had a non-delegable duty to see that the work he was contractually obligated to perform was done in a careful, skillful and workmanlike manner. The case is remanded with instructions to proceed in accordance with this Opinion.
Theo Kampert, et al. v. Valley Farmers Cooperative, et al.
Giles County – We agreed to hear this extraordinary appeal in order to decide whether the proper venue for a case involving the breach of a construction contract is in the county named in the forum selection clause of the contract, or in the county where the realty is located upon which the construction took place. We hold that the forum selection clause determines the proper venue, because the underlying action cannot fairly be characterized as an action for injury to real property and is, thus, a transitory action.
Allstate Insurance Com-pany v. Diana Lynn Tarrant, et al.
Sevier County – Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries. The trial court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds’ personal policy. The court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the
insureds that reflected the van was then insured under the personal policy and not the commercial policy. The court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.
Victor L. Dobbins v. Tennessee Department of Correction, et al.
Hickman County – This appeal involves a petition for writ of certiorari filed by a prisoner seeking review of a disciplinary conviction. The respondents did not oppose the issuance of the writ, and a certified copy of the record of the disciplinary proceedings was filed with the trial court. The respondents then filed a motion for judgment on the record. After review of the parties’ briefs and the administrative record, the trial court granted the respondents’ motion for judgment on the record. The petitioner inmate appeals. We affirm, concluding that material evidence supported the conviction, and that the petitioner’s constitutional rights were not violated.
Amy Goolsby James v. Chadwick Ryan James.
Davidson County – This is a divorce action. Wife asserts the trial court erred by not granting her a new trial, by declaring the parties divorced rather than awarding the divorce to her, and in its division of property, award of alimony and by not naming her the primary residential parent and setting child support accordingly. We affirm in part, reverse in part, and remand.
Stephen Ball v. Theodore Shockley.
Shelby County – This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure.
The trial court denied the plaintiff’s motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.
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