Wiseman Bray Wins on Motion to Dismiss

motion to dismiss

Wiseman Bray PLLC is happy to announce a victory in a business litigation case. Our strategy? A Rule 12 Motion to Dismiss. Our client, a former officer and employee of a factoring corporation, was wrongfully sued in his individual capacity by a former customer of his employer. Our client served as Chief Financial Officer, and had merely signed agreements on behalf of the company. The Plaintiff alleged that our client’s employer had misapplied payments and committed other improper acts in connection with their Factoring and Buyout Agreements.

Our Strategy

The Complaint contained numerous allegations against the factoring corporation, but its only mention of our client was that he was an officer of the company, and that, as an officer he was somehow responsible for implementing the policies and procedures that damaged Plaintiff.

After our firm was hired to represent the former officer, we carefully analyzed the Complaint filed against him in Federal Court. In our judgment, the claims in the lawsuit were neither valid nor properly stated, so we filed a Motion to Dismiss for Failure to State a Claim. See Federal Rule of Civil Procedure 12.

What is a Motion to Dismiss for Failure to State a Claim?

A motion to dismiss for failure to state a claim is filed at the very beginning of a case which argues, essentially, that a plaintiff’s claim is either not legally correct, or that insufficient facts have been alleged to suppose an otherwise valid legal claim.

When such a motion is filed, the judge must assume that all the allegations of the plaintiff’s complaint are true, resolving any and all doubts in favor of the plaintiff. For obvious reasons, then, such motions are usually very difficult to win. The corresponding benefit is equally obvious, though, because dismissal at this early stage allows the client to avoid most of the costs of litigation.

The Court’s Ruling in Our Case

The Federal District Court judge agreed with our argument and granted the Motion to Dismiss filed on behalf of our client. In dismissing the breach of contract claim, the Federal District Court Judge said:

A corporate officer cannot be held liable for a corporation’s debts merely because he exercises dominion or control over the organization. Schlater v. Haynie, 833 S.W.2d 919, 924 (Tenn. Ct. App. 1991). Likewise, a corporate officer signing a contract on behalf of corporation does not bind himself to the contract. Bill Walker & Associates, Inc. v. Parrish, 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989). Instead, a court will only hold an officer liable on a contract if it appears that the officer signed the contract in his personal capacity.

Here, Plaintiff has alleged no facts showing that [the former officer] was a party to the Factoring Agreement in his personal capacity. The Factoring Agreement’s signature page clearly shows that [his] signature was in his capacity as CFO. (ECF No. 1-1 at 3.) Additionally, he is not even a signatory to the Buyout Agreement. Plaintiff’s Complaint instead apparently attempts to hold [the former officer] liable because he exercised control over [the corporation’s] actions.  However, Tennessee law does not allow this. See Schlater 833 S.W.2d at 924. Therefore, its breach of contract claim against [the former officer] fails.

In dismissing the Plaintiff’s additional claims of conversion and fraud, the Judge went on to say:

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character; he is not liable for torts committed by or for the corporation unless he has participated in the wrong.’” Cooper v. Cordova Sand & Gravel Co., Inc., 485 S.W.2d 261, 271–72 (Tenn. Ct. App. 1971).

Here, the only allegation against [the former officer] himself is that he “was responsible for implementing the policies and procedures that damaged Plaintiff,” or, in other words, acted as an officer of the corporation. Because Plaintiff’s Complaint lacks any reference to any tortious conduct on the part of [the former officer], it fails to state a claim against him for both conversion and fraudulent inducement.

This case was handled by Civil Litigation Attorneys Chris Patterson and Erin Shea.

Need a Business Litigation Attorney?

Call us at 901-372-5003 or visit our website to learn more about our services as business litigation attorneys.

We handle other kinds of cases as well, including: personal injury, apartment crime injuries, auto accidents, premises liability, wrongful death, contract drafting and review, general civil litigation, estate planning, wills, trusts, probate, business planning, and business entity formation.

erin shea lawyer memphis

Erin Shea

motion to dismiss lawyer

Chris Patterson

 

 

 

 

 

 

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

How to Talk to Your Insurance Company After an Accident

insurance company after car accidentAfter a car accident, you may feel it necessary to contact your auto insurance company or carrier and let them know what has happened immediately. While informing your carrier of an accident is an important step in getting the compensation you deserve, there are a few things you should know before you pick up the phone.

Don’t Always Expect the Insurance Company to be on Your Side

As nice as it is to believe that an insurance company is on your side, this might not always be the case. Insurance agencies are running a business, meaning their main concern will almost always be their bottom dollar. Even though you may have paid your monthly premiums, and followed up on your end of the bargain, the insurance company will likely still not be looking after your best interests. That’s why you may want to consider enlisting the help of a personal injury attorney. Their main objective is to help you get the compensation you deserve. In fact, most DC personal injury lawyers won’t see any payment until you do.

Speaking with Your Insurance Company

After an accident, you may want to follow these steps:

  • Call the police
  • Take care of injuries
  • Exchange information with the other driver
  • Document the accident
  • Report the accident to your insurance company

When you contact the insurance company, you will likely need the following information:

  • Policy information
  • Identity Verification
  • Facts about the accident
  • What property was damaged
  • If there were any injuries
  • Police report and its identification number

At this point, insurance companies will likely try and find ways to reject your accident claims or find a way to pay the least amount of money on a claim. Remember, you only have to provide the basic information at this time. Stick to the facts and avoid adding any personal opinions, or conjecture about liability; an insurance company will likely try to spin any non-factual evidence you provide to avoid paying your claim. This is also not a time to accept any offers from the insurance company for a payout. If you already have an attorney, provide the attorney’s contact information to the representative. If you don’t have an attorney, let the representative know you will be getting one. Retaining an attorney shows the insurance company that you are serious and that they cannot take advantage of you.

If you’ve been injured in an accident and are in the process of dealing with your insurance company to get the compensation you deserve, it may be in your best interest to seek the help of an experienced personal injury lawyer.

0 COHEN

 

Thanks to our friends and co-contributors from Cohen & Cohen, P.C. for their added insight into communicating with your insurance agency.

 

Need a Memphis Personal Injury Lawyer?

Call us at (901) 372-5003.  Our experienced Memphis injury lawyers can help you make the most of your insurance claim. Sign up for email notifications of blog posts here.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

Wrongful Death of a Child

wrongful death of a child attorneyNo one should have to ever think about the wrongful death of a child. As a mother of two young children, I can’t think of anything more unbearable than the loss of a child. But according to the American Association for Marriage and Family Therapy, over 57,000 children under the age of 19 die every year in the United States.

Our law firm represents parents who have lost a child due to the fault of another person or company. The legal term for a death caused by someone else’s negligence or wrongdoing is “wrongful death.”

Who can File Suit for Wrongful Death of a Child?

In Tennessee, only certain people have the right to file a lawsuit to recover damages for the wrongful death of a child. As a general matter, the child’s parents can file suit against the responsible party.  If the parents are divorced, special rules apply. Usually, the parent with “primary custody” has the right to file suit. An administrator can also file the lawsuit. Tenn. Code Ann. Section Tennessee Code Annotated Section 20-5-106 provides that the wrongful death cause of action:

shall pass to . . .the [child’s] natural parents or parent or next of kin if at the time of death [the child] was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by [the parents] pursuant to any court order removing [the child] from the custody of [the parents or parent]; or otherwise to the [child’s] legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.

Occasionally, due to family circumstances, wrongful death cases involving children can become very complicated. Sometimes disputes arise between divorced parents or among family members as to how the case should be handled. Also, even if you aren’t the person to file the lawsuit, you may still be entitled to recover a portion of the damages awarded. Likewise, the person who files the lawsuit may or may not be entitled to a portion of the money damages awarded. An experienced wrongful death attorney can talk with you, learn about your family situation, and advise you on your potential rights.

What are the Damages in a Wrongful Death Case Involving a Child?

Damages in a case involving the wrongful death of a child are determined on a case by case basis. A jury will look at all of the facts and circumstances and make an award. Legally speaking though, the types of damages recoverable in a wrongful death case are statutory and are set forth in Tennessee Code Annotated Section 20-5-113. The general categories are:

(1)     Injuries Suffered by the Child from Time of Injury Until Death

This classification allows recovery for medical expenses, physical and mental pain and suffering, funeral expenses, and loss of earning capacity during the period from injury to death.

(2)     Incidental Damages Sustained by Child’s Next of Kin

This classification of damages includes the pecuniary value of the child’s life.  The “pecuniary value” of a deceased child’s life represents the value of the child’s probable future financial accumulations at the time of the child’s death.  To determine the pecuniary value of a decedent’s life, a court considers the following factors: life expectancy and age, condition of health, capacity for earning money through a skill, art, trade, profession, occupation or business, and personal habits regarding sobriety and industry. The amount should then be reduced by deducting the decedent’s probable living expenses had the decedent lived.

In the case of a wrongful death of a child, the analysis is a bit different. Living expenses are the costs associated with child-rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses.

Loss of Consortium (Filial Consortium Damages)

Pecuniary value also includes the value of human companionship. Parents of a deceased child are entitled to recover for loss of consortium.  However, these claims for loss of consortium cannot exist independently from the claim that a defendant’s negligence caused the child’s death. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. Rather, the “pecuniary value” of the child’s life includes a value for the parents’ loss of consortium

In determining the amount of consortium damages, courts consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular parent’s loss of a particular child’s consortium is decided on a case by case basis.

Punitive Damages

If the child’s death was caused by reckless or intentional conduct, parents can seek punitive damages. Punitive damages are designed to punish the responsible person and deter similar behavior.

Negligent Infliction of Emotional Distress

Depending on the facts of the case, parents of a deceased child may be able to assert independent claims for “negligent infliction of emotional distress.” An experienced wrongful death lawyer can advise you further about this and other claims you may have.

Limits on Damages in Tennessee Due to Tort Reform

As a general rule, the most that parents can recover for “loss of consortium” damages for the wrongful death of a child is $750,000. Punitive damages are usually limited to $500,000 or two times the compensatory damages, whichever is greater. One of our Memphis wrongful death attorneys can discuss your case and explain the rules on damages in Tennessee, as well as the various limitations in effect due to Tennessee Tort Reform.

Looking for a Caring and Compassionate Wrongful Death Lawyer?

If you’d like to speak with a caring and compassionate wrongful death lawyer in the Memphis or Nashville area, please call our office at 901-372-5003. We’re not your everyday law firm. We are mothers and fathers just like you and we treat our clients like family. There is never any charge for an initial consultation or meeting.  To get email notifications of our blog posts, please sign up here.

Resources for Families Suffering the Wrongful Death of a Child

Understanding Grief When Your Child Dies

The Death of a Child: The Grief of the Parents: A Lifetime Journey

 

Blog Post by:   Erin Shea

memphis personal injury lawyer and wrongful death attorneyErin practices in the area of civil litigation, including personal injury and wrongful death, premises liability, apartment crime, business and contractual disputes, and insurance claims. Before joining Wiseman Bray PLLC, Erin practiced at Rainey, Kizer, Reviere & Bell PLC, gaining extensive experience in litigation. Her experience at a large insurance defense firm gives her a unique perspective in advancing claims on behalf of the firm’s clients.

Erin has been listed as a Mid-South Super Lawyers Rising Star every year since 2009  and is a Fellow of the Memphis Bar Foundation.

She is married to Martin F. Shea, Jr., and has two very active young children— Elin (Age 4) and Martin (Age 21 months)– and a German Shepherd dog named Iko.  In her spare time, she enjoys reading, movies, good television, and exercise.

 

 

Erin Melton Shea

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003

 

Insurance Company Bad Faith? Ask the Insurance Lawyer

bad faith insurance lawyer

The overwhelming majority of insurance claims are fairly handled and paid without complication. But, some are not. While there are a number of reasons why an insurance claim might be denied or why you might not get paid what you think you are owed, one thing is certain in Tennessee:  An insurance company must handle your claim in good faith. If you think your insurer is acting in bad faith, consult with an insurance lawyer.

Tennessee Bad Faith Statute

If an insurance company does not act in good faith in handling an insurance claim, then it may be subject to bad faith penalty damages. Tennessee Code Annotated  56-7-105  says that if an insurance company’s refusal to pay a claim was not in good faith, then then the company may be liable for up to 25% of the loss amount, measured by the additional expenses incurred by the policyholder. So, if your loss is $100,000, you could recover up to an additional $25,000 if the insurance company didn’t act in good faith.

What is Bad Faith? What is Good Faith?

Every case is unique and it depends on the circumstances.  That’s why you need to consult with an insurance lawyer. As a general matter, it is difficult to prove that an insurance company’s denial of a claim was not in good faith.  The policyholder has the burden of proving bad faith and the following principles in Tennessee case law favor the insurance companies:

  • Delay in settling a claim does not constitute bad faith when there is a genuine dispute as to value, no conscious indifference to the claim, and no proof that the insurer acted from any improper motive.
  • If an insurance company unsuccessfully asserts a defense and the defense was made in good faith, the statute does not permit the imposing of the bad faith penalty. So, even if the insurance company loses or was wrong, it doesn’t necessarily mean that the company acted in bad faith.

Before joining Wiseman Bray PLLC, I worked for almost ten (10) years at an insurance defense law firm representing insurance companies.  I cannot recall a single time that I was not successful in eliminating the bad faith portion of a lawsuit before the case made it to trial. I would add that, in most cases, the bad faith claim was simply thrown into the lawsuit, as if an afterthought.  I say these things to stress that it’s an unusual case when the bad faith penalty is actually applicable, but that does not mean you don’t have a claim for bad faith. Ask an insurance lawyer to be sure.

Unfair Claims Settlement Act

Tennessee also has what is referred to as the Tennessee Unfair Trade Practices and Unfair Claims Settlement Act. While the Act does not create a private right of action, it does create standards and rules that insurance companies must follow when handling claims. The Act provides at least some level of guidance concerning activities that might be considered to evidence bad faith.

What to Do if You Suspect Bad Faith by Your Insurance Company

  • Read your insurance policy. Make sure that you are in compliance with the “Duties After Loss” section.
  • Keep good and organized records.
  • Ensure that all of your communications to the insurer are kind and courteous and that they exhibit cooperation.
  • Keep a timeline of relevant communications and events that support an allegation of bad faith.
  • Get an insurance lawyer involved sooner rather than later. Insurance policies are full of deadlines and there are specific procedures that are important in preserving a claim of statutory bad faith against an insurer.

Need an Insurance Lawyer? We can help.

Call Wiseman Bray PLLC at (901) 372-5003 or email us here.

Visit our website to learn more. Our Memphis office is conveniently located at 8001 Centerview Parkway, Suite 103 Memphis, TN 38018,  near the intersection of Walnut Grove and Germantown Parkway.  We accept cases throughout Tennessee and Mississippi, including Memphis, Bartlett, Cordova, and Germantown.

 

Can my Fitbit be used as evidence against me?

By:            Erin Shea

fitbit can be used by injury lawyer

Can my Fitbit® data be used as evidence in court?

As I was driving to work yesterday, I heard an advertisement for a Local News Story on Fox 13 about potential unintended consequences of using one of those trendy new fitness tracker devices, such as the Fitbit®. This piqued my interest for a couple of different reasons: (1) My husband bought me a Fitbit® for my birthday recently, and (2) Part of my job as a lawyer involves looking for information to either support or weaken a particular factual claim being made by someone in a lawsuit, and doesn’t a fitness tracker record accurate and factual information?

Using Fitbit® Data as Evidence in Court Cases

What could be the unintended consequence of using a fitness tracker? Relevant to my job as a lawyer, Fox 13’s story and this article discuss how fitness tracking data can make or break a court case.

I haven’t seen any reported appellate decisions in Tennessee yet discussing the admissibility of fitness tracking data at trial, but I’m sure they are coming. Also, even if the data never sees the inside of a courtroom, there are other uses for it, including using the information to secure other evidence or as a negotiation point during settlement talks.

For example, if a person in a personal injury suit is making a claim that they can no longer walk more than a few steps at a time, but the person’s Fitbit® data shows that the person is taking 20,000 steps a day, I would argue that the claim is being exaggerated.  On a somewhat related topic, I will never forget an old case I worked on where the injured person claimed he could no longer run races, but his social media accounts showed several post-race photographs that were taken after the accident.

Moral of the Story

Don’t forget that your electronic devices, including fitness tracking devices like a Fitbit®, are collecting data and information about you.  Think about how that data might be used to help or hurt you because you can be sure that the lawyers are!

Need a Lawyer?

erin shea, injury lawyer at wiseman bray memphisCall  me or any of the other lawyers at Wiseman Bray PLLC  at (901) 372-5003. We’d be glad to help you. We handle cases in Memphis, Cordova, Germantown, Bartlett, Arlington, Lakeland,  Shelby County, and throughout Tennessee and Mississippi.  If we can’t help you, we’ll point you in the right direction.

 

Justice Antonin Scalia: Quotes from Lang Wiseman and Erin Shea

scalia wiseman bray lang wiseman erin shea

Justice Scalia, Photo by: University of Memphis

No doubt your news feed is filled with posts about the passing of United States Supreme Court Justice Antonin Scalia, like this and this. We at Wiseman Bray, PLLC are saddened by the loss of Justice Scalia.

“I was fortunate enough to have the opportunity to see and hear Scalia in person a few times, the first time being when I looked up and saw him sitting in the back row of one my classes at Harvard Law.  He was an absolutely brilliant scholar.  Whether you shared his views or not, he was able to articulate his thoughts in a manner that made him one of the most transformational legal figures of the last century.  He was the rock star of the conservative legal movement, and yet so charming and genteel that even those who disagreed with him couldn’t help but appreciate his intellect.”   Lang Wiseman

“I had the pleasure of hearing Justice Scalia speak at a luncheon in Memphis in 2013. I specifically remember being in awe of his wisdom in discussing the Constitution and the practice of law.  It’s not every day that you are exposed to people like him, and that is a day I will always remember.”    Erin Shea

 

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, TN  38018

(901) 372-5003

 

Do I Have a “Slip and Fall” Claim?

slip and fall lawyer in memphis

Do you have a slip and fall claim? You slipped and fell in a store. You felt embarrassed and hoped no one saw you.  All you wanted was to hurry up and get out of there. Once you reach the privacy of your car, though, you realize you are hurting pretty badly.  But you’re able to drive home where you try to rest, suck it up, and tough it out.  At the urging of a loved one, though, you finally give in and go to the emergency room later that night, or maybe the next day, or a couple days later, because the pain just won’t go away.  Once you get to the ER, tests and x-rays show that you have a small fracture or other problem that will require follow-up care. You begin to wonder if the store is at fault, and whether you might have a claim.

This scenario isn’t uncommon.  Similar thoughts go through the minds of many people who are injured in slip and fall accidents in Tennessee.  To be quite honest, due to the state of the law, it can be difficult to recover for a slip and fall in Tennessee. Sometimes people who are seriously injured in a slip and fall through no fault of their own are simply unable to recover for a variety of reasons. This is why you need a good lawyer on your side as soon as possible after a slip and fall accident.

Elements of a Slip and Fall Claim in Tennessee

slip and fall lawyerTo recover in a slip and fall case, in addition to the general elements of negligence, you must prove either that: (1) the condition that caused your fall was created by the property owner; or (2) the property owner had actual or constructive notice that the condition existed before your fall.  It is absolutely critical that you prove the condition or object that caused the fall.

Speculation about the cause of an injury is not enough to establish liability. The Tennessee Court of Appeals, in Willis v. McDonald’s Restaurants of Tennessee, Inc., recently granted summary judgment to a McDonald’s restaurant because the plaintiff could only say that she stepped on a hard, sharp object, which caused her to fall.  Because she could not identify what specifically caused her to fall, she could not prove that the restaurant either created the condition or knew or should have known about it before she fell.  Therefore, McDonald’s won and the jury never even got to hear the plaintiff’s case.

Why do I need a Slip and Fall Attorney?

An attorney can increase your chances of recovery by taking immediate steps to help you gather and preserve evidence that may help you prove your claim. For example, our firm regularly sends out “spoliation letters” notifying property owners of a potential claim against them and demanding that they preserve any and all evidence concerning that claim. Nowadays, many businesses have video surveillance that can sometimes show when and how a dangerous condition was created and how long it existed before an accident.

memphis slip and fall lawyer personal injury

If you are injured in a slip and fall accident, feel free to call us at 901-372-5003 or email us here. Every case is unique and our personal injury attorneys–Lang Wiseman, Chris Patterson, Erin Shea, and Will Patterson— can help you navigate your particular circumstances.

What should I do if I am involved in a slip and fall?

  • Determine WHAT caused you to fall and document it. Take a picture or write down the specific details.
  • Report your accident. Don’t be embarrassed and just leave. Ask for a manager and explain what happened so that your claim is documented. Before you leave, ask for copies of the accident report and other forms created by the business in response to your report. Even if you later decide not to pursue a claim, go ahead and report your accident as soon as it happens.
  • Ask that any relevant video surveillance be preserved, including footage for the two (2) hour period of time before your fall.
  • Take photographs or video of the scene. Do not worry about the quality.
  • Take note of whether there are any warning signs or barricades in the area of your injury.
  • Write down the contact information for any witnesses. Other customers can sometimes be helpful. Write down the names of the employees in the area and of those who help you.
  • Take photos of your injuries.
  • Seek medical attention as needed.

Click here to see other Frequently Asked Questions and Answers about injury claims.

Erin Shea Elected as Fellow by the Memphis Bar Foundation

erin shea

Wiseman Bray PLLC is proud to announce that Erin Shea was recently elected a Fellow by the Memphis Bar Foundation, following in the footsteps of firm founder, Lang Wiseman.

The Memphis Bar Foundation is the philanthropic arm of the Memphis Bar Association with the mission of promoting philanthropy among members of the Bar; advocating and supporting public awareness of the legal system; promoting social justice and legal education; and encouraging and recognizing professionalism among members of the Bar. Fellows are elected in recognition of devoted and distinguished service to the legal profession and the administration of justice and adherence to the highest standards of professional ethics and personal conduct.

More About Erin Shea

Erin is married to Martin F. Shea, Jr., and has two children, Elin (4) and Martin, III (19 months). Read more about Erin by clicking here.