By Sarah Byrne, staff attorney, Nashville
The Appeals Board heard arguments recently in Love v. Love Management, Inc. to decide whether the trial court erred when it denied the insurer a continuance and granted partial summary judgment to Emilie Love, finding as a matter of law that she was an employee and working in the course and scope of her employment when injured.
Certainly, no love is lost between the employer and its insurer in this complicated, high-stakes claim, where the employee-owner used her husband/co-owner’s testimony to move for partial summary judgment, hoping to narrow issues for trial.
But since the order lacked finality, the Board questioned the order’s purpose and effect – and whether the move for partial summary judgment was simply bifurcation masquerading as economy.
Look, it’s complicated.
Love, wife of celebrity chef Tim Love, became seriously injured when pinned between two vehicles at the Nashville airport. She and her husband, the company’s owners, maintain she flew here from Texas to work for Love Management at a charity fundraiser and to plan a Music City Eats event.
“This case is so complicated,” said Nick Akins, attorney for appellant Zenith insurance, “because you’ve got self-serving statements by employee and her husband, who are owners of the company and stand to benefit from pursuing benefits.” He said Mrs. Love first tried to obtain benefits from other Love companies but was either excluded from coverage or had no coverage.
“So, it gives them a financial incentive,” he said, “to make sure that the only company (Love Management) with an insurance workers’ comp coverage at the time of her injury…[is] the main focus of this case.”
Certainly, stakes are high for both sides, as she has received “probably over a million dollars” of treatment, according to Akins. And it’s unique. As he pointed out, “In twenty plus years of handling workers’ comp, this is the first time I’ve had a plaintiff file a motion for summary judgment against her own company.”
Since the owners’ and the insurer’s interests conflicted, Zenith retained separate counsel to represent Love Management, whose arguments have mirrored Mrs. Love’s.
The Board asked Akins if an employer’s admissions are binding on an insurer, considering the definition of an “employer” in Tenn. Code Ann. § 50-6-102(13)(1).
“I don’t think so at all,” responded Akins. “I think Zenith is a separate entity that’s being pursued here… and that’s where it gets so complicated; [the Loves are] taking personal positions contrary to that of the company.”
What he said.
Mrs. Love relied almost exclusively on her husband’s testimony to support her statement of undisputed material facts. At the time of the hearing, the Loves’ depositions were the only depositions in the record.
So, Zenith also appealed the trial court’s denial of its motion to continue, as it had wanted to take more depositions before responding because, in Zenith’s view, Mrs. Love’s deposition testimony raised more questions than it answered about her employment relationship with Love Management.
“She testified herself,” Akins said, “[that] she didn’t know who paid her and she didn’t even know which employer employed her – which entity of theirs employed her.”
Let’s just agree to disagree.
Without other testimony to rely upon, Zenith responded to most of the undisputed facts with “agreed based on discovery performed to date.” The trial court considered those responses admissions.
But Akins contended that the list of undisputed material facts amounted to “little snippets [that] were pulled from the self-serving testimony of Mr. Love,” and is not demonstrative of an entire picture.
The Board asked whether the undisputed facts, particularly that Mrs. Love “was in Nashville in February 2019 on the business of Love Management, Inc. and not any other Love company,” proved she was in the course and scope of employment, even if admitted.
“I don’t think it does,” said Akins. He added, “Again, this is where this gets so tricky and [is] part of the problem with the judge’s ruling…we would have never agreed that that’s the case, or we would not be here.”
Under the Board’s questioning, Akins agreed that Mrs. Love is a statutory employee of Love Management under Tenn. Code Ann. § 50-6-102(12)(A), as she is its vice-president. “I think we have to [concede that],” he said. “We agree she was listed as the vice president.” But he maintained that she was not working in the course and scope of employment as an employee of Love Management when injured.
“She has multiple employee relationships with multiple companies,” said Akins. “So, the fact that she is…not being paid by her company and being paid by other companies on the day in question, I think clearly show that she was not working for [Love Management] at the time this happened.”
So, what did this accomplish?
Steven Fifield, counsel for appellee Emilie Love, asserted the trial court reached the correct conclusion and properly denied the continuance.
But the Board questioned the order’s purpose and effect, since it omitted Rule 54 language necessary to make it a final determination, meaning it’s subject to revision at any time before entry of final judgment. That would make it interlocutory. And if it’s interlocutory, the Board seemed to wonder if more might have been accomplished with an expedited hearing instead.
“I agree that it was not made final,” acknowledged Fifield. “I submit that it should have been made a final order.” But he said the point of filing for summary judgment was to shift the burden.
“We have shifted the burden to Zenith to affirmatively present counter evidence or counter proof to create some material dispute of fact,” said Fifield. He added, “We were just trying to narrow issues for an eventual compensation hearing.”
But this answer provoked the b-word: bifurcation. “Was this essentially an effort to bifurcate the issue of compensability from the issue of benefits owed?” asked Judge Conner.
“Well, not so much bifurcate, your Honor, as compartmentalize step by step to create building blocks,” said Fifield.
The Board’s arguments took place on January 25, and a due date for its decision is unclear. If the Board considers the partial summary judgment interlocutory, by statute, it must be released within 20 business days after oral argument. If the Board considers the trial court decision final, a decision must be issued within 45 calendar days.
As previously stated, it’s complicated.
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