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Tennessee Trial Lawyers Association

Every battle is won or lost before it is ever fought.”

Divorce PreparationAlthough we say, “until death do us part” and fully expect our lives with that special someone to last forever, unfortunately, sometimes those expectations fall short of the reality.  Whether it’s because one spouse did something unforgivable or you simply grew apart, divorce may become the new reality.  As an attorney, I often find that by the time a client has made it into my office, much of the damage has already been done. This article was inspired by such clients in an effort to prevent the same type of damage to others who find themselves in similar circumstances.  Make no mistake, although we would like to think the person we committed our lives to would never purposefully try to deceive or deprive us, a divorce can be, and often is, a battle to be won or lost.  Recognizing this fact and understanding the “Art of War” is the first proactive thing a spouse can do for themselves.  It was Sun Tzu, a Chinese military general and strategist, who literally wrote the book and emphasized the importance of preparation for any victory.  His words transcend the battlefield and could not be truer than they are here. Proper preparation can mean the difference between victory or defeat, and much of a divorce battle is fought before the first court filing.

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Hippa RegulationsHIPAA is a complicated law with numerous provisions. HIPAA is the abbreviation of the 1996 Health Insurance Portability and Accountability Act, Public Law 104-191.1 HIPAA included provisions in the law that authorized the U.S. Department of Health & Human Services (HHS) to adopt national standards to protect the privacy of personal health information. HIPAA mandated that HHS take action that ensures privacy protection for individually identifiable health information.2 

According to the official HHS website, HIPAA requirements include those found in Public Law 104-191, a final privacy rule adopted in December 2000, a final Security Rule adopted in February 2003, an Enforcement rule, and an Omnibus Rule.3 An unofficial version of all HIPAA regulations is found in a combined regulation text on the HHS website.4 This unofficial version of regulations is 115 pages long. You may read the full regulations for yourself if you want. However, the purpose of this article is to provide a snapshot into what HIPAA is and the basic requirements it imposes on businesses.

First, it is important to note, that HIPAA does not impose requirements on all businesses. Instead it only applies to the following entities: “(1) A health plan; (2) A health care clearinghouse; (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter; or (4) an individual or “business associate” that provides certain services to a covered entity.”5

DOCTOR HOLDING CREDIT CARDSIn most instances under the law, debt is incurred in the capacity of the person(s) involved in the transaction only. Yet, there are several exceptions to this rule. State contract and family law apply to determine if one spouse may be liable for the debt of the other spouse. Tennessee law has provisions for garnishment, to levy bank accounts, to foreclose on property, and place a lien in certain circumstances.1 Additionally, if you sign a contract as a grantor for the medical care of a friend or family member and agree to contractual provisions that you will pay in the event that they fail to do so, you may be legally bound by that contract.

One of these lesser known exceptions to debt being incurred in an individual capacity only is the obligation to pay the medical bills of a spouse. Tennessee courts have directly recognized the common-law doctrine of necessaries to require a spouse to pay the medical debt of the other spouse in certain circumstances since at least 1997.2 In Outpatient Diagnostic Center v. Christian, a medical care provider attempted to hold a husband liable for medical services provided to his wife.3 The husband argued that he should not be liable for his wife’s debt because she was not acting as his agent in the transaction and he did not ratify her debt. The court reasoned that a spouse’s duty to pay for necessary medical expenses for the other spouse is a straightforward application of the common-law imposed duty on a husband to furnish support for his wife.4 Additionally, the Tennessee legislature appeared to ratify this doctrine in 1974 in T.C.A. § 47-18-805 “Liability of spouse.”5 The court also reasoned that other states confronting similar disputes have recognized the common-law necessaries doctrine as creating this obligation.6

The Court defined the limits of the doctrine: “[A] provider of medical services can make out a prima facie claim for recovery under the necessaries doctrine by proving that

Military LawThe Uniform Code of Military Justice (UCMJ) is located in Chapter 37 of the United States Code.¹It is Federal law that applies to the U.S. Military. The UCMJ “defines the military justice system and lists criminal offenses under military law.”² On January 1, 2019, major changes to the Uniform Code of Military Justice took effect.³ According to the United States Army these changes include: “modernizing definitions for many offenses, adjusting maximum penalties, standardizing court-martial panels, creating new computer-crime laws, and much more.”4 A recent Military Times headline describes these changes as “the biggest update to UCMJ in decades”.5

Significant criminal offense changes include:

  • Replacing the offense of adultery with “extra-marital sexual conduct.” The offense was also broadened to include all types of sexual acts.

EsportsI am an attorney and former teacher as well as a mother and wife to a houseful of gamers.  People often find it difficult to understand how I could support the idea of my kids becoming competitive Esports players or my 19-year-old son, who scored a 33 on the ACT, foregoing college to pursue a career playing video games.  What those people may not know is that competitive Esports is quickly becoming the next professional sports arena with a booming industry that has generated over $900 million in revenues in 2018 and is expected to grow 38% over the coming year.  Forbes anticipates the Esports economy will exceed $1.6 billion by 2021.¹  This blog will be the first in a series to help educate and inform prospective pro gamers and their families about the business of Esports, and the potential opportunities and pitfalls of pursuing a career as a competitive player.

Living in a family of gamers has led to video games being a big part of my life for the last 20 years.  I have watched the technology advance and the gameplay become more and more realistic.  At an early age, we knew our eldest son had skills, and his passion and commitment to master every game he played was impossible to ignore. So, when he told us he wanted to take a gap year to focus on becoming a pro Fortnite player, my husband and I viewed and supported those aspirations no differently than if he had wanted to be a professional athlete, an actor or professional musician; all pursuits which require passion, commitment, skill and talent.  For a year our son worked tirelessly to hone his skills and improve his gameplay. Those efforts paid off and his dream came true when he won the PAX West Fortnite tournament this past August; a win that would change his life.

I share this personal story with you in hopes that it will inspire young players to continue the grind as well as provide some insight to families and parents who may not truly understand what Esports can bring to the table.  Whether you play League of Legends, Dota 2, Call of Duty, Overwatch or Fortnite, game developers and Esports Organizations are intent on bringing Esports into the mainstream.  So, before you completely discount your gamer’s dreams of going pro, consider some interesting facts about the burgeoning Esports industry that might surprise you:

HB 2315
Infórmese de sus opciones.

A medida que se acerca la fecha del 19 de enero de 2019 el miedo y la incertidumbre comienza a notarse en la población inmigrante o indocumentada del estado de Tennessee. Algunas familias se han reubicado en otros estados, otras familias han recurrido a consultar con abogados de inmigración en el área, y otras esperan con impaciencia la reforma migratoria tan anhelada por muchos. Independientemente de cuál ha sido su opción, es incuestionable que hay que estar preparado para esta fecha. Por favor, no se deje engañar por no estar bien informado, y siga leyendo.

¿Qué es la Ley HB2315 de Tennessee?

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HB 2315Be informed about your options.

As January 19, 2019 approaches, fear and uncertainty have begun to spread among the immigrant and undocumented population in Tennessee. Some families have relocated to other states, other families have decided to consult with immigration lawyers in the area, and still others are eagerly awaiting the immigration reform so longed for by many. Regardless of what your choice has been, it is unquestionable that you must be prepared for this date. Please, get well informed, and keep reading.

YELLOW LABRADOR“Until one has loved an animal a part of one’s soul remains unawakened.” – Anatole France

Wedding china, dining room table, artwork collection… pets?  As most of the United States today, Tennessee included, continues to deem pets as personal property, many divorcing pet owners will face the question, “Where will Fido go?”  This question is particularly important for couples who acquired pets during the marriage and, as many pet owners can attest, consider them to be fundamental members of the family.  In this situation, divorcing parties are typically expected to separately address and agree to an equitable division of all “other items” of tangible personal property – “umbrella” language commonly found in divorce settlement agreements – under which pets fall.

Despite traditionally itemizing Fido between the Instant Pot and the outdoor patio set, the issue of pet ownership in divorce proceedings is, in fact, becoming an increasingly popular topic in family law throughout the country.  Similar to child custody disputes, divorcing parties may want to first discuss how to best maintain the status quo for the pet(s) post-divorce.  If both parties have equally contributed to the well-being, care, and financial responsibility of the pet(s), will be in the position to continue same after the divorce finalization, and neither wishes to forfeit ownership and/or visitation rights, they may find an informal pet agreement to be a feasible solution.

ACA with gavelThere have been several high-powered legal battles about the Constitutionality of the Affordable Care Act (ACA) ever since the Act became a law in March 2010.1 Several of these cases have considered important Constitutional issues such as the extent of Congress’ commerce clause, necessary and proper, and tax power.2 In NFIB v. Sebelius a split supreme court narrowly upheld the constitutionality of the ACA based upon Congress tax power, yet rejected arguments that the law could be sustained based on Congress commerce clause power or the necessary and proper clause.3 Resting the Constitutionality of the ACA upon a single reason left the ACA vulnerable to future legal attack. This attack came in a two-prong approach, first in the 2017 Tax Cuts and Jobs Act (TJCA) signed into law in December, 2017, the individual mandate from the ACA was repealed by Congress and signed into law by the President.4 It did not take long for new legal challenges to mount. One of those came quite quickly after the change in the law in the case of Texas v. U.S in the Northern District of Texas on February 26, 2018.5

In Texas v. U.S., the Plaintiffs allege in the Complaint that “Because this recent amendment renders legally impossible the Supreme Court’s prior savings construction of the Affordable Care Act’s core provision—the individual mandate—the Court should hold that the ACA is unlawful and enjoin its operation.”6 The plaintiffs filed for a preliminary injunction recently. The District Court construed the motion for a preliminary injunction as a motion for partial summary judgment and granted the Plaintiffs summary judgment on count I on December 14, 2018.7 This recent decision has made a major splash in the current news cycle.8

In the Texas v. U.S. decision, the Court did not attempt to hide the ball deep in the analysis. Instead the Court was transparent in the introduction section and presented a road map for the case.9 First the Court reasoned that Article III courts must decide cases or controversies presented to them, even those of the most politically charged. Second, the Plaintiffs allege “the balance of the ACA is untenable as inseverable from the Invalid Mandate.” Third, the Court’s decision is guided by the Supreme Court’s previous decision in NFIB v. Sibelius resting on the tax power only. Fourth, Congress stated the individual mandate was unequivocally “essential to the ACA”. Thus, the District Court granted summary judgment to the Plaintiffs that the ACA is now unconstitutional in totality.10

https://www.colelawgrouppc.com/blog/wp-content/uploads/2018/12/Screen-Shot-2019-01-23-at-3.49.32-PM-2.pngOftentimes in litigation, parties continuously seek the all-important piece of evidence to help win their case. This vastly important piece of evidence is sometimes known as a “smoking gun.” Some examples of a “smoking gun” may include the video of an injury that occurred on the premises of a business that clearly shows the injury was the fault of a third party, or an important email that indicates sexual harassment or racial discrimination.  However, it is not always easy to obtain this information and unfortunately sometimes parties choose to destroy evidence in hopes of hiding any evidence that may confirm their legal liability. What happens if a party destroys relevant evidence?

In 2015, the Supreme Court addressed this issue in a case know as Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 737, 2015 Tenn (https://www.tncourts.gov/sites/default/files/tathamleeann.opn_.pdf)

In Tatham, the plaintiff was in a serious car accident. Plaintiff alleged that the car accident occurred due to the failure of a new tire purchased from Defendant. Plaintiff brought a products liability case against the seller and the manufacturer. At the instruction of her insurance company, the plaintiff transferred title to the vehicle (and tire) to a third-party wrecker service. In ordinary practice, the wrecker service destroyed the tire and car. After the car and tire were destroyed, Plaintiff filed suit against the defendants. The defendants filed a motion for summary judgment requesting the court to dismiss Plaintiffs case because the tire was destroyed, and Defendants were prejudiced because they never got a chance to inspect the tire. The trial court refused to award the sanction because it held the plaintiff did not intentionally destroy or otherwise spoliate the tire. The Defendants appealed, arguing the trial court abused its discretion. This issue was addressed by the Supreme Court. The Supreme Court upheld the Trial Court’s decision not to award sanctions and in the process developed a new four (4) factor test for the Trial Court.

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