Articles Posted in Insurance Litigation

A plaintiff may obtain a judgment against a defendant under Tennessee law, and under federal law, if the defendant does not file a responsive pleading within the required time. Under the Tennessee Rules of Civil Procedure, a defendant must file a written response to a complaint within thirty (30) days of being served with the complaint.  If you are a defendant against whom a default judgment has been entered, be aware that it can be set aside. With frequency, default judgments are set aside by Tennessee courts.

There are several different grounds on which a default judgment may be set aside. First, if a defendant was not properly served, then a default judgment may be set aside on the grounds that it is void.  Service of process on a defendant can be tricky, and, even the validity of personal service by an officer or private process server may be successfully challenged.

Second, a default judgment may be set aside, even where there was valid service on the defendant, if the defendant was not given adequate written notice that the plaintiff had filed a motion for a default judgment. Under the Tennessee Rules of Civil Procedure, in most cases, a defendant is entitled to receive written notice of the motion for default judgment at least five (5) days before the motion is heard.

Third, a default judgment may be set aside for “mistake, inadvertence, surprise, or excusable neglect.”  In my experience, these grounds are the ones most frequently used to support a motion to set aside a default judgment. Under Tennessee law, the party moving to set aside a default judgment has the burden to prove that it should be set aside. However, Tennessee appellate courts have said, time and time again, that the law does not favor judgments by default, and, if there is any doubt as to whether one should be set aside, it should be.

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General contractors typically have commercial general liability policies (“CGLs”). (CGL policies are not the same as performance bonds, which might also be in place for a particular construction job.)  In my experience, the key provisions of most CGL policies are identical or are substantially similar. In fact, one task of a consortium of insurance companies known as the Insurance Services Offices is to develop standardized CGL policy forms.

CGL policies are meant to cover damages for personal injuries and property damage caused by the general contractor or by its subcontractors. For example, if a worker drops a hammer on a passerby and causes personal injuries, a CGL policy will typically provide coverage. Similarly, if a wall collapses during construction and causes property damage to a third party, a CGL policy will typically provide coverage.

CGL policies do not provide coverage for the repair or replacement of defective work. For example, if a project owner sues a general contractor because the owner has had to incur the cost associated with repairing defective work of the contractor, a CGL policy will not provide coverage to the contractor. If, however, the defective work has caused damages other than the damages to repair or to replace the work, it is very likely that the contractor’s CGL policy might provide coverage to the contractor for those damages.

In 2007, the Supreme Court of Tennessee decided an important case involving defective construction work and a commercial general liability policy. Although the case involved a claim by the contractor that the insurance company which issued the CGL should have to provide a legal defense to it, the holdings in the case are still very much applicable to an insurance company’s obligation, not only to provide a defense, but also, to pay a claim.

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In a recent case decided by the Court of Appeals of Tennessee in which an insurance agency was sued for failure to procure an adequate commercial general liability insurance policy, the court reversed some of the trial court’s rulings on expert testimony, which resulted in the summary judgment in favor of the defendant insurance agency also being reversed. Since, in almost all cases against insurance agents and agencies, a plaintiff must have expert testimony to establish the standard of care and a breach of it by the agent or broker, the court’s analysis and rulings related to the qualifications and areas of testimony of the plaintiff’s insurance expert are very helpful.

Here are the basic facts related to the procedural history of the case:

  • Merit Construction was sued for damages by JAG arising out of its work on a project
  • Merit agreed to settle the suit for over three million dollars
  • The insurance company which had insured Merit under a commercial general liability policy was placed in a receivership (meaning it could not pay claims of its insureds, like Merit)
  • Merit assigned its rights against its insurance agent (“Agent”) which had procured the policy at issue to JAG
  • JAG sued the Agent on the basis that it had been negligent with respect to obtaining coverage for Merit
  • To make its case, JAG employed an expert in the insurance industry named Bahr
  • The trial court made a ruling which excluded several of the opinions of Bahr which were necessary for JAG’s professional negligence claims against the Agent to survive
  • Without the expert testimony which supported that the Agent had breached the applicable standard of care for insurance brokers and insurance agents and which the trial court excluded, JAG was unable to defend a motion for summary judgment which the trial court granted

Here are the basic facts related to the alleged negligence of the Agent:

  • Merit asked the Agent to obtain a commercial general liability policy from a company with a rating from A.M. Best Company of at least “A”
  • A.M. Best Company is widely recognized as providing reliable ratings as to the financial stability of insurance companies
  • The Agent presented Merit with three policy options, one of which was from a company, Highlands Insurance, which had an A.M. Best Company rating of “B++”
  • The Agent represented to Merit that the coverage through Highlands would be “A” rated if a “cut-through” endorsement was obtained to go with it
  • A “cut-through” endorsement is essentially reinsurance
  • Merit understood that, with the cut-through endorsement, Highland’s rating would be raised to “A”
  • After Merit purchased the policy, Highland’s rating was downgraded to a “B” from “B++”
  • The Agent did not inform Merit of the downgrade or offer to move its coverage to another company with a higher rating
  • Highlands went into receivership


Bahr, the expert for JAG, offered three opinions which the trial court ruled he was not qualified to make, thereby effectively excluding them:

  1. That the Agent breached the standard of care when it offered a less than “A” rated policy and informed Merit that the cut-through endorsement raised the rating to “A”
  2. That the Agent breached the standard of care when it failed to explain thoroughly the cut-through endorsement, how it worked, and by not obtaining a signed letter from Merit that it understood the same
  3. That the Agent breached the standard of care when it failed to notify Merit that Highland’s rating had fallen by two grades (from “B++” to “B”)

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Our firm undertook representation of a local interstate trucking company, Dark Horse Express, LLC (“Dark Horse”) in a cargo insurance claim case in which Lancer Insurance Company (“Lancer”) issued the cargo insurance coverage which was at issue. At the district court level, Lancer argued that it was entitled to summary judgment because Dark Horse’s customer, which owned the lost cargo, had never obtained a judgment against Dark Horse for the cargo loss at issue. Lancer won a summary judgment from the District Court. We appealed to the Court of Appeals for the Sixth Circuit which reversed the District Court.

Here is a summary of the basic facts:

  • Dark Horse was hauling about $250,000 worth of steaks for its customer, PFG, from Dallas to Lebanon
  • Dark Horse’s driver stopped just outside of Dallas after picking up the load
  • While stopped, someone broke the seal of the truck and stole about $35,000 worth of the steaks
  • PFG refused to take the remainder of the steaks because of the broken seal and possible contamination
  • Under the contract between Dark Horse and PFG, which was titled “Transportation Agreement,” Dark Horse had agreed to be liable for the full value of the load in the event the seal of the truck was broken
  • Dark Horse paid PFG for the value of the load, less the salvage that was obtained by PFG
  • Dark Horse then made a claim under its cargo insurance coverage with Lancer for the amount it paid its customer, PFG, for the loss of the load
  • Lancer refused to pay for various reasons, including that no court judgment had been entered against Dark Horse in favor of PFG for the loss of the load
  • Dark Horse filed suit in Sumner County, Tennessee Circuit Court and Lancer removed the case to the United States District Court for the Middle District of Tennessee
  • Lancer moved for summary judgment on several grounds

One of Lancer’s summary judgment arguments was that the insurance policy at issue contained a provision which, Lancer asserted, conditioned Lancer’s duty to pay on a judgment being entered against Dark Horse by a court. The specific provision upon which Lancer relied required Lancer to pay sums Dark Horse “legally must pay as a motor carrier for ‘loss’ to Cargo ….”

The District Court held that the language in question did require a judgment to be entered by a court of competent jurisdiction against Dark Horse and in favor of PFG before Lancer had any obligation to pay the claim. It based its decision, in substantial part, on a 1971 decision of the Supreme Court of Tennessee, but noted that there was contrary authority decided under at least one other state’s contract law.

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Sometimes in a breach of contract case, or other commercial litigation matter, a party will be met with the defense that it is not entitled to recover because a condition precedent to the parties’ contract was not fulfilled. Under Tennessee law, a party is not required to perform under a contract unless and until a condition precedent agreed upon by both parties has been satisfied.  However, and very importantly, to rely successfully on the defense that a condition precedent was not satisfied, a party must first prove that there was a condition precedent.

Because conditions precedent have a tendency to result in harsh and unfair outcomes, Tennessee courts disfavor finding the existence of conditions precedent. Sometimes, even when they do find a condition precedent which was indisputably not satisfied, nevertheless, they do not allow that fact to permit a party to avoid performance.

A leading case on conditions precedent in Tennessee was decided by the Supreme Court of Tennessee in 1996. In that case, Koch v. Construction Technology, Inc., a subcontractor filed a breach of contract case alleging that the general contractor had failed to pay it for the entire amount due for work done on a project owned by the Memphis Housing Authority (“MHA”).  In defense, the general contractor claimed that it was not required to pay the entire balance it owed to the subcontractor because a condition precedent to its performance had not been fulfilled.

The written contract between the contractor and subcontractor in the Koch case contained a provision referred to as a “pay when paid” clause.  It stated: “Partial payments subject to all applicable provisions of the Contract shall be made when and as payments are received by the Contractor.”  The general contractor argued that the only amount for which it had not paid the subcontractor was the amount MHA had not paid it.  It also argued that the above language created a condition precedent.

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Under Tennessee law (T.C.A. §48-25-102), a foreign business entity which is transacting, or has transacted, business in Tennessee without obtaining a certificate of authority from the Secretary of State of Tennessee cannot maintain an action in a Tennessee court. This rule applies to lawsuits filed in Tennessee state courts, as well as to those filed in federal district courts located in Tennessee. See, e.g., In Re Meyer & Judd, 1 F. 2d 513, 526 (W.D. Tenn. 1924); G.M.L., Inc. v. Mayhew, 188 F. Supp. 2d 891, 893-94 (M.D. Tenn. 2002).

The process of obtaining a certificate of authority is also referred to as registering to do business in Tennessee. When a business entity registers to do business in Tennessee, it may be referred to as having been “domesticated” in Tennessee.

Any action filed in a Tennessee state court or a federal court located in Tennessee by a business entity transacting business in Tennessee without registering to do business in the state is subject to dismissal. Importantly, it is never too late to register to do business in Tennessee, and Tennessee law expressly allows an entity to register to do business and, thereafter, to continue its lawsuit. However, registering, after having failed to register for a number of years, can become expensive.

What does it mean to “transact business” in Tennessee such that a business must register to do business in Tennessee? The general rule is that a foreign business entity is transacting business in Tennessee when it transacts some substantial part of its ordinary business in Tennessee and its operations in Tennessee do not consist of mere casual or occasional transactions.  There is a Tennessee statute (T.C.A. §48-25-101) which delineates a number of things that do not constitute the transaction of business in Tennessee.  Perhaps a few of the most relevant are:

  • Holding meetings related to internal governance
  • Owning real estate
  • Maintaining bank accounts
  • Selling through independent contractors
  • Soliciting orders by mail which require acceptance outside of Tennessee
  • Creating or acquiring loans, security interests and deeds of trust
  • Conducting isolated transactions that are completed in one month
  • Transacting business in interstate commerce

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In many Tennessee cases involving written contracts, the contracts will contain provisions whereby the parties agreed that the substantive law of a state other than Tennessee would apply in any litigation between them. (In the absence of such a provision, Tennessee follows the rule of lex loci contractus whereby it is presumed that the law of the state where the contract was signed applies).  Since there is substantial similarity between the laws of the States, especially the common law of breach of contract, which State’s law applies may not make a big difference in most cases. It can, however, make a big difference in some cases.

Where the parties have agreed that the law of a particular state will govern any litigation, a Tennessee court will enforce that agreement unless the jurisdiction whose law is chosen does not bear a material connection to the transaction or unless the law of the jurisdiction chosen is contrary to the fundamental policies of Tennessee. This blog focuses on the issue of when a Tennessee court might not enforce a choice of law provision because the law of the state chosen by the parties does not bear a material connection to the transaction.

There is scant published Tennessee case law that addresses this issue. In a 1931 opinion, Manufacturers Finance Co. v. B. L. Johnson & Co., 15 Tenn. App. 236, the Court of Appeals of Tennessee refused to apply the law of Delaware, which the parties had agreed would govern any dispute between them. In that case, the plaintiff was a finance company organized under Delaware law, but which had a principal place of business in Maryland.  The defendant was a Tennessee corporation with a principal place of business in Knoxville.  No part of the disputed transaction touched Delaware.  The court held that it would not apply Delaware law under those circumstances.

In a 2012 breach of contract case, the Tennessee Court of Appeals enforced a contractual provision whereby the law of Kentucky was to govern any litigation between the parties. In that case, the prospective buyer claimed that it was entitled to a refund of an earnest money deposit it had made to purchase land located in Kentucky from the seller. In that case, the buyer was from Tennessee, but the sellers were from Kentucky and the land being sold was in Kentucky.  Under those facts, the court held that there was a material connection between Kentucky and the transaction being litigated.

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Under Tennessee law, if an insurance company denies a claim, it can be subject to a bad faith failure to pay penalty. The maximum amount of the penalty is 25% of the claim amount which the insurance company should have paid.  Moreover, the penalty does not apply unless the refusal of the insurance company to pay the claim was not in good faith, or, in other words, in bad faith.

In bad faith failure to pay cases, whether or not there was bad faith is a jury question so long as there is any evidence of bad faith. Even though it is the province of the jury to decide whether the insurance company has acted in bad faith, and, consequently, whether the insurance company should have to pay the bad faith penalty, it is not uncommon for the Court of Appeals of Tennessee to set aside a jury’s finding that an insurance company acted in bad faith.  Discussed below are three bad faith failure to pay cases where a judge’s or jury’s award of bad faith damages was upheld on appeal and one case where a jury’s finding of bad faith was reversed.

Palatine Ins. Co. v. E. K. Hardison Seed Co., (Tenn. Ct. App. 1957):  In this case, the court of appeals upheld the jury’s determination that the insurance company had acted in bad faith for failing to pay a claim for the theft of a truck.  The insurance company denied the claim on the grounds that the policy was not a fixed value policy, but an actual cash value policy which required an appraisal. Several months after the loss, and after the plaintiff had reported it, the plaintiff wrote the insurance company asking for payment. Several weeks after that, the insurance company wrote the plaintiff demanding an appraisal and stating that it could not accept the plaintiff’s proof of loss because of Plaintiff’s failure to provide minor details related to the claim and of which the insurance company should have been aware.  The court of appeals upheld the jury’s imposition of the bad faith penalty finding that the policy was a fixed value policy and because there “was substantial evidence” on which a jury could find bad faith.

Minton v. Tenn. Farmers Mut. Ins. Co., (Tenn. Ct. App. 1992): In this bad faith failure to pay case, the court of appeals upheld the trial court’s finding of bad faith where a diamond ring was lost in the mail when its owner, the plaintiff, mailed it to be repaired.  The insurance company denied the claim based on an exclusion in the policy for losses resulting from neglect of the insured.  The plaintiff admitted that she did not mail the ring by certified mail or purchase postal insurance.  The trial court found bad faith because the policy did not contain any prohibition against mailing the ring as the plaintiff had done.

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Many Tennessee businesses have commercial general liability policies, and many other types of policies and endorsements, which contain exclusions for any loss resulting from dishonest or criminal acts. These exclusions will most likely apply to employees, partners and directors of the business.

Sometimes, in insurance policy litigation, there is no way to defeat a policy exclusion for dishonest or criminal acts. For example, if the insurance company can prove that the loss resulted solely and exclusively as a result of the theft or other illegal conduct by an employee of the insured business, the insurance company will not have to pay the claim. Where, however, the loss could have resulted from both the dishonest or criminal act of an employee and some other concurrent cause, the insurance company may not be able to rely successfully on the exclusion.

While no published Tennessee opinion addresses a fact situation where there was a dishonest or criminal acts exclusion in an insurance policy along with concurrent causation (causation of a loss resulting from an employee’s dishonest or criminal conduct and some other cause), the opinion of the Supreme Court of Tennessee in Allstate Insurance Company v. Watts, 811 S.W.2d 883 (1991) would apply directly to such a case.

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Can you recover punitive damages in Tennessee for breach of contract? It is difficult, but not impossible.  Moreover, there is little published case law on the subject, and, as discussed below, there is one major question about punitive damages in breach of contract cases which has yet to be fully explored and answered by Tennessee courts.

A good place to start is a summary of some Tennessee cases where punitive damages were requested for breach of contract.

Riad v. Erie Insurance Exchange (Tenn. Ct. App. 2013):  In this case, the plaintiff alleged the defendant insurance company was liable for breach of contract, bad faith failure to pay and for violating the Tennessee Consumer Protection Act.  After a trial, the jury assessed punitive damages against the defendant of $1.5 million dollars.  (It assessed compensatory damages of $343,430).

While regurgitating the same phrase used in previous Tennessee cases that punitive damages are “generally not available in breach of contract cases,” the court upheld the award of punitive damages. It did so by pointing to the seminal punitive damages case in Tennessee, Hodges v. S.C. Toof & Co. (Tenn. 1992).  In Hodges, the Supreme Court of Tennessee held that, to recover punitive damages, the defendant must have acted intentionally, fraudulently, maliciously, or recklessly.  Notably, Hodges was not a breach of contract case.

Dog House Investments, LLC v. Teal Properties, Inc. (Tenn. Ct. App. 2014): In this case, the plaintiff alleged breach of contract and promissory fraud.  (A defendant is liable for promissory fraud if it can be proven that, at the time the defendant made a promise, it had no present intent to fulfill that promise.)  The Court of Appeals of Tennessee held that the breach of contract in this case did not rise to a level of egregiousness warranting an award of punitive damages.  I think most people would agree that the conduct of the defendant in this case was every bit as egregious as the conduct of the defendant in the Riad case.  In the Dog House case, the court seemed to say that, in order to receive punitive damages for breach of contract, there must be some fraud in addition to a breach of contract. Notably, in this case, the court allowed the punitive damages verdict to stand because the trial judge had found that the defendant not only breached the contract, but also, committed promissory fraud. Continue reading

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