Contact a Family Lawyer Memphis, TN if Life Insurance is Changed During Divorce Proceedings

Family Lawyer Memphis, TN

Tennessee Injunctions upon Filing Divorce.

Ask a family lawyer Memphis, TN about Tennessee law, which requires these injunctions. At the time a spouse files a complaint for divorce in Memphis,  TN, a set of automatic injunctions go into place.   They prevent either of the parties from taking certain actions. The parties are prevented from making changes to life insurance policies, hiding or disposing of assets, relocating with minor children, and harassing one another. These injunctions remain in place until the divorce is final or dismissed.

Unfortunately, all too often, some parties fail to abide by these rules.  A party may, in violation of the Court’s order, change life insurance beneficiaries or dispose of an asset. There are a number of remedies the other party can seek through a family lawyer Memphis, TN in order to rectify these issues.  For example, the other party may be cited for contempt of court. These issues can have large implications for assets and life insurance policies. However, a party may die before a violation is remedied.

Remedying Violations After Death.

Fortunately, the Tennessee Supreme Court took up this very issue for the first time in Coleman v. Olson. In this case, a wife filed a complaint for divorce against her husband. She then immediately served the complaint on him, and the injunctions went into effect. Unfortunately the wife became seriously ill a week after filing for divorce. While in the hospital she changed the beneficiary from her current husband to her mother. This change violated those injunctions. Soon thereafter, the wife died, and the life insurance company paid her mother all of the proceeds.

The Court could have directed that the husband be renamed as beneficiary, if the wife was not dead. However, upon a party’s death, divorce proceedings abate, and the remaining spouse becomes a widower, not a divorcee. As such, the statutory injunctions expire at the time of a party’s death.  This leaves the Court stuck since it does not have any way to enforce the injunctions or remedy the violation. Thus, presumably the husband would have been left without a remedy.

An Equitable Solution.

The Tennessee Supreme Court concluded that trial courts continue to have the equitable power to resolve such a violation. This remains true even though the divorce proceedings end at the time of the other parties’ death. The Court is empowered to consider an equitable result. The Court may use its discretion to award the life insurance proceeds among the widower and the other potential beneficiary.

In this case, the Court would therefore have the jurisdiction to decide how the proceeds should be divided between the husband and the wife’s mother. It may be equitable for all, a portion, or none of the proceeds to go to the husband. Tennessee trials courts have the discretion to fix a violation based on the circumstances. If the Court concludes that it is more equitable for the widower to receive all of the proceeds, then it may do so. Ask a family lawyer Memphis, TN trusts regarding an equitable remedy for these situations.


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

Article by Lang Wiseman Published on Law360.com — Insurance Bad Faith and Punitive Damages

Bad Faith

Insurance Bad Faith

Law360.com recently published an article by Lang Wiseman regarding Tennessee law on insurance bad faith and punitive damages.  The title of the article is “Are Punitive Damages Available in Tennessee Insurance Cases?

Following is an excerpt from the introduction of article:

“In recent years, state and federal court rulings in Tennessee have been inconsistent about whether punitive damages are available to a policyholder in an insurance coverage case.  This inconsistency arises out of differing interpretations of Tennessee’s “bad faith statute” in light of the Tennessee General Assembly’s passage of Tennessee Code Annotated § 56–8–113.”

For more information, please use the search tool on our website to locate and review additional articles and posts on business and insurance related matters, including FAQs.

_____________________________

Wiseman

Lang Wiseman

Lang Wiseman is the founding member of Wiseman Bray PLLC, and is a commercial litigator that Memphis, Tennessee knows and trusts when it comes to business and insurance matters. Lang is an honors graduate of Harvard Law School after graduating as the top graduate in the College of Business at the University of Tennessee where he was a scholarship basketball player for the Vols.  Lang concentrates his practice in commercial litigation and is an AV-rated lawyer annually recognized by his peers as one of the Top 100 Super Lawyers in Tennessee.  Among other civic endeavors, he serves on the Board of Trustees of the University of Tennessee, the Governor’s Council for Judicial Appointments, and the Vice-Chair of the Advisory Commission to the Tennessee Supreme Court on Rules and Practice of Procedure.

Get Specific! You Must Mention “FEES” in Your Attorney Fee Provisions

business lawyer Memphis, TN

Tennessee Requirements for Attorney Fee Provisions

As the business lawyer Memphis TN  trusts when it comes to contract negotiation and drafting, one piece of simple legal advice we frequently give our small business clients is to always include attorney fee provisions in your contracts and routine business forms. Why? Because if you don’t have such a provision and you end up in litigation, you’re on the hook for your own attorney fees and legal expenses even if the breach of contract, or the resulting litigation, isn’t your fault.

It has always been the case that a contractual provision allowing for the recovery of attorney fees must be specific. However, just last month, in Nyrstar Tennessee Mines-Strawberry Plains, LLC v. Claiborne Hauling, LLC, the Tennessee Court of Appeals went further to reinforce this principle by making clear that attorney fee provisions must specifically invoke the magic words “attorney fees.”   The Court held that it is not enough simply to provide recovery of “costs,” “expenses” or even “legal expenses” – all of which the Court held was simply not specific enough to permit recovery of attorney’s fees.

 In Nyrstar, the plaintiff won at trial on its breach of contract action against the defendant and the judge awarded the plaintiff $116,073.43 in damages. After winning the case, the plaintiff then sought attorney’s fees of $106,779.50 and expenses of $2,982.12 pursuant to the attorney fee provision in the applicable contract. The specific language of the contract in Nyrstar was as follows:

The Customer must pay Nyrstar all costs and expenses incurred by Nyrstar in connection with enforcing its rights against the Customer under an Agreement including legal expenses and other costs incurred in recovering monies owed by the Customer to Nyrstar.

The trial court awarded the plaintiff its expenses, but refused to award the plaintiff its attorney’s fees, despite the contract language providing for the recovery of “legal expenses.” The trial court stated:

[t]he plaintiff Nyrstar’s language does not use the term “fees.” It uses “expenses,” which has been found to be inadequate. Merely providing for the “recovery of ‘costs and expenses’” is insufficient to reach a contractual right to recover attorney’s fees.

(Emphasis added). The Tennessee Court of Appeals upheld this decision. The Nyrstar case means that you should pull out your contracts and regular business forms, and then call us today to make sure that the language you are using in your attorney fee provisions is correct. After all, what is the point of having an attorney fee provision in your contracts and forms if it’s not going to hold up in court?

Bottom Line

Your attorney fee provision MUST specifically provide for the recovery of “attorney’s fees,” and not merely “costs” or “expenses.”

Even if a provision provides for the recovery of “legal expenses” or “costs and expenses of any suit or proceeding,” the right to recover attorney’s fees is not created because the provision does not specifically implicate “fees” as part of the recovery.

If you’d like the small business lawyer Memphis TN  trusts to review your small business contracts and routine business forms to make sure your language complies with the requirements in Tennessee for attorney fee provisions, call us today at (901) 372-5003.

Our Super Lawyer – Lang Wiseman Selected as Tennessee Top 100 Lawyer

Super Lawyer Lang Wiseman

There are over 18,000 lawyers in Tennessee.  Each year, though, Super Lawyers magazine evaluates and recognizes the top lawyers in each state via a patented multi-phase selection process involving peer nomination, independent research and peer evaluation. The Tennessee lawyers who receive the highest point totals during this selection process recognized in the Tennessee Super Lawyers Top Lists.

We are proud to announce that our founding partner, Lang Wiseman, was named to the 2017 List of Top 100 Lawyers in Tennessee.  Lang was also named to the 2017 List of Top 50 Lawyers in Memphis.

Congrats, Lang!

Trick-or-Treating Safety Tips from Wiseman Bray

personal injury lawyer memphis tn

Halloween is such a fun time of year, especially for children.   Sadly, it is also a very dangerous night for kids.  On average, twice as many child pedestrians are killed while walking on Halloween compared to other days of the year.  Only 18% of parents use reflective tape on their children’s Halloween costumes, and 12% of children ages 5 or younger are permitted to trick-or-treat alone!  In addition to talking with your kids about Halloween safety, here are some things you can do for a safer night:

 

  • Kids under 12 should trick-or-treat and cross streets with an adult.
  • Use reflective tape on costumes.
  • Walk on sidewalks and paths, and not in the street.
  • If there are no sidewalks, you should walk facing traffic as far to the side as possible.
  • Cross streets at corners only, using traffic signals and crosswalks.
  • Watch for cars that are turning around or backing up.

DRIVERS: If you are driving on Halloween night, be especially vigilant!  Slow down, even more than usual, in residential neighborhoods. Children are excited on Halloween and often move in unpredictable ways.

HOMEOWNERS. If you are a homeowner, here are some ways you can help keep trick-or-treaters safe:

  • Keep Property Well-Lit– Kids will be cutting through all parts of your yard to find your front door, so make sure that your property is well-lit and that it is obvious which door trick-or-treaters should go to.
  • Keep Property Unobstructed– Clean up yard debris, fill gopher holes, wind up hoses, and pick up toys or other equipment left in the yard.
  • Restrain Pets– Be sure to keep your pets away from the front door and porch, where they might get excited and jump on or bite trick-or-treaters. It is best to keep your pet in another room or in the garage during trick-or-treating time.

The attorneys and staff of Wiseman Bray PLLC wish you a very Happy and Safe Halloween!

erin shea injury lawyer memphis tn

Erin Shea, Attorney

Job Opening – Entry Level Legal Assistant

Minimum Education Requirements: Associate’s Degree or higher

Job Requirements

  • Experience not required but preferred.
  • Must be people oriented with commitment to customer service.
  • Must communicate effectively with customers and attorneys.
  • Ability to pay close attention to detail.
  • Proficient editing skills.
  • Proficient with Microsoft Outlook, Word, and Excel.
  • Demonstrate initiative and ability to work independently.

Job summary

Wiseman Bray PLLC is medium-sized boutique law firm.  A Legal Assistant’s primary responsibility is to support Attorneys and the Litigation Coordinator in any manner that allows them to be more effective and efficient.  The position involves general office work such as scheduling, filing, editing, preparing correspondence, and basic research. The applicant must be detail oriented and able to juggle multiple tasks while independently keeping track of, and following up on, open items.  A Legal Assistant serves as a primary point of contact for clients and customers, and is responsible for answering incoming phone calls and identifying and addressing customer needs.

Wiseman Bray PLLC employees receive 12 days paid leave annually.  Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, with an hour for lunch break.  Beginning salary is $30,000 per year, and employees are 401(k) eligible after completing 1 year of work.  Unfortunately, Wiseman Bray PLLC is not able to offer health insurance benefits.

Wiseman Bray does not discriminate on the basis of race, sex, religion, color, national or ethnic origin, sexual orientation, age, or disability.

Please send all inquiries and resumes to info@wisemanbray.com.

Resumes that contain spelling or grammatical errors will not be considered.

Do You Have a Medical Malpractice Claim? What You Should Know

Medical Malpractice Cases

A study from Johns Hopkins Medical suggests that errors and omissions from medical malpractice are the third leading cause of death in the United States. Medical malpractice cases are some of the most strenuously defended claims in the law of personal injury. They’re time consuming, and they’re expensive to bring and win. In order to prove that medical malpractice occurred, you’ll need to show:

There Was a Physician and Patient Relationship

Establishing a doctor and patient relationship is more contractual than medical. You’re required to show that you wanted to hire the doctor, and the doctor agreed to be hired. The question of whether there was a physician and patient relationship might get confusing if the doctor was a consulting physician who didn’t directly treat and care for you.

Negligence

The mere fact that there was a bad result doesn’t mean that a doctor was careless and negligent in treating his or her patient. There are several important points to keep in mind:

  • We’re required to show that the physician who treated you or your family member breached the standard of care and caused harm. That standard of care is consistent with the level and type of care that a reasonably competent and skilled physician with similar training in the same geographical area would have provided under the same or similar circumstances.
  • The care and treatment need not be the best possible. It need only be reasonably careful and skillful. That level of care and any alleged deviation from it are what the facts of most medical malpractice cases turn on.
  • Each side almost always hires its own independent expert to testify on the standard of care and any breach of it. Sometimes the parties have more than one expert.

Causation

People usually don’t see doctors unless they’re sick or injured. The severity of the illness or injury that brought the patient to the doctor must be considered. The level of severity raises the issue of whether the doctor’s care and treatment actually harmed the patient. This can be a cloudy issue often left to the testifying experts. To prove medical malpractice, we’re required to show that a doctor’s negligence through an error or omission in treatment actually caused the harm. Even a gross deviation from the standard of care isn’t actionable if no serious harm was caused to the patient.

Proximate Cause

Proximate cause in medical malpractice is determined by using a “but for” test. But for the error or omission of the treating physician, would the specific harm that the patient is complaining of have occurred? That specific harm must result in legal damages to the patient. Those damages might be in the form of:

  • Additional medical bills
  • Physical pain and suffering
  • Lost earnings and earning capacity
  • Any permanent disfigurement
  • Any permanent disability
  • Funeral and burial expenses in the event of a wrongful death

Common Examples of Medical Malpractice

A wide variety of acts or failures to act can constitute medical malpractice. Some common types of medical malpractice are:

  • Failure to diagnose or a misdiagnosis. There might have been a better result without one of these occurring.
  • Improper treatment or choosing the proper treatment but administering it improperly.
  • Failing to warn a patient of known risks.
  • Surgical errors like operating on the wrong body part or performing the wrong procedure on a patient.
  • Anesthesia errors by administering too little or too much of an anesthetic to a patient.

Medical malpractice laws vary widely from state to state. Anybody contemplating a medical malpractice case should speak with an experienced and respected attonrey such as the  Personal Injury Lawyer Milwaukee WI  locals trust before making the decision to take legal action.


Thanks to our friends and contributors from Hickey & Turim for their insight into medical malpractice claims.

Why you should speak to an attorney in your personal injury case

We’ve all heard those silly jokes about attorneys. Lots of people like to say a lot of things about why you should or shouldn’t hire an attorney. But if you have been injured and suspect that you may have a personal injury case on your hands, it is important to at least speak with one. To break it down, here are four reasons why:

  1. The Law is Complicated

There is a reason why attorneys go to law school, and there is a reason why they are required to pass the bar. The law is complex, and the specifics vary on a state by state and city by city basis. Effectively pursuing a personal injury lawsuit involves hours of tedious paperwork and difficult negotiations. Even simply determining how viable a personal injury claim is can take hours of legal research and resources that only an attorney would have at their disposal.

  1. Navigating the legal system alone is dangerous

The law isn’t just complicated. There can be serious repercussions from acting on a case without knowing your rights to the fullest extent. Missteps in the law can have lasting effects and can result in expensive losses and fines. If the opposing party is represented by a skilled attorney, you may find yourself out maneuvered on every turn.

  1. You need to heal

After an injury, severe enough to constitute a personal injury lawsuit, the stress of successfully filing and arguing a case can only be detrimental to the healing process. Make no mistake, fighting your way through the legal system is stressful and defeating. After an accident, you should be focused on resting and recovering.

  1. Most Personal Injury Attorneys Won’t Get Paid Until you do

Most personal injury attorneys will perform their services on a contingent fee basis. This means that they receive a fixed percentage of any settlement they negotiate for you. This arrangement helps you rest assured that you will receive the best representation possible and the highest settlement that can be reached. It also means that you have nothing to lose by contacting an attorney who is highly recommended to represent you.

All of this means one simple thing. If you have been hurt in an accident, contact a skilled lawyer, like a personal injury attorney Atlanta GA trusts,  in your area and see what next steps are appropriate for you. The risks of trying to represent yourself are simply to high.

Andrew R. Lynch, P.C. Thanks to our friends and contributors from Andrew R. Lynch, P.C. for their insight into personal injury accident cases.

Can Airbags Injure You in a Car Accident?

There has been an alarming increase in the number of auto accidents resulting in airbag injuries during the past decade. Sometimes the protection devices deploy without impact and are essentially the actual cause of the accident. The number of vehicle models that have been recalled due to this problem has also increased drastically in the past year after the National Highway Transportation Safety Administration began investigating the specific accidents. At issue are various Takata airbags that are now known to have been installed in a very wide variety of vehicle models for practically every car manufacturer.

This is not to mention the injuries that occur when airbags do release properly after being impacted by a vehicle. Airbags effectively explode when they engage, releasing fast and with considerable force. When the passenger is turned in a vulnerable position, the final result can be injuries to the face, arms, and neck area, potentially causing central nervous system problems that can prove catastrophic in some instances. However, pinpointing that an injury was caused by an airbag can be a difficult task without an experienced car accident lawyer Fort Collins, CO trusts investigating the entire material case evidence record.

External Injuries

Common external injuries resulting from an exploding airbag are usually to the upper torso, with many of those injuries being lacerations to the arms and facial area. While external injuries to the arms are often considered superficial, lacerations to the face can result in permanent scarring and potential surgical repair. In some instances, the parts of the body the airbag is designed to protect are actually the body parts that are injured.

The chance for upper body and facial injuries is more likely for drivers, while passengers tend to experience injuries to lower extremities as well because of airbag installation design. It is important to remember that the airbag is designed to protect the passengers, but an impacted automobile can also experienced damage that could also cause injuries when debris is dislodged inside the vehicle.

Internal Injuries

While external injuries are obvious, the same cannot be said of internal injuries that assuredly can happen from an airbag during a collision. The problem with internal injuries is that they are not always immediately recognized unless there is significant pain. Injuries such as a twisted back or whiplash around the neck around can easily manifest later. Even if an accident victim has no apparent external injuries, it is still best for the accident victim to seek treatment at an emergency facility. Internal organ damage is common, as well as separated shoulders or broken limbs, and internal problems can be very dangerous. Internal bleeding situations can worsen quickly, even resulting in a fatality, and time is of the essence even though the symptoms may appear minimal.

An experienced car accident lawyer would advise those with airbag injuries of any type to seek medical attention immediately following a crash. Timing is very important documentation when damages are being recovered in an auto accident case, especially when the injury is not apparent. Attorneys must connect the injury to the accident and use the case evidence regarding the deployment of the airbag configuration to establish cause and effect for the injured victim. Lapses in time can provide the respondent insurance provider an opening for an case issue that can be used to deny or lessen the value of an injury claim.

Cannon Hadfield Stienben, LLCThanks to our friends and contributors from Cannon Hadfield Stienben, LLC for their insight into car accident cases.

The World’s Largest Airbag Recall — Are You Affected?

The World’s Largest Airbag Recall — Are You Affected?

Takata, one of the world’s largest airbag suppliers, is settling for $1 billion after pleading guilty to distributing defective and fatal airbags.  Even with a minor fender-bender, these airbags can explode and fire bits of shrapnel into the cabin.  These airbags have been the cause of at least 17 known deaths worldwide.  These airbags are incredibly dangerous, and what’s worse, is that millions of cars have had their airbags recalled, but many people don’t know!

Please look through this list to see if your model has been affected, or look up your VIN to see the specific recalls here: https://vinrcl.safercar.gov/vin/