Board Reverses in Love versus Love Management

By Sarah Byrne, staff attorney, Nashville

Recently, the Appeals Board issued its opinion in Love v. Love Management, Inc., reversing the trial court for applying incorrect legal standards when it denied the insurer a continuance and granted partial summary judgment to Mrs. Love.

Because it bears repeating, Presiding Judge Timothy Conner wrote a concurring opinion to reiterate and recount why bifurcation is a bad word, especially in workers’ compensation.

We’ve looked at this case before. Remember, the trial court granted Emilie Love partial summary judgment against her own company, concluding there were no disputed facts regarding whether Mrs. Love was acting in the course and scope of her employment for Love Management, Inc. at the time of the accident. Its insurer, Zenith, appealed both that order and the trial court’s denial of its motion to continue the summary judgment hearing, as Zenith had wanted more discovery before the hearing.

The motion to continue

Zenith filed two motions to continue the partial summary judgment hearing, but this appeal concerned the denial of its second motion.

Initially, the trial court denied Zenith’s first motion because its counsel didn’t include a Rule 56.07 affidavit to explain why Zenith needed more depositions showing “facts essential to justify [Zenith’s] opposition.” But when counsel filed the affidavit with a second motion to continue, three days before the summary judgment hearing, the trial court still “denie[d] the motion due to its late filing.”

The Board concluded the trial court applied an incorrect legal standard when it denied Zenith a continuance “due to [the affidavit’s] late filing.” While Rule 56.04 requires “opposing affidavits not later than five days before the hearing,” no similar time limitation exists for Rule 56.07, the Board observed. So, the trial court incorrectly applied Rule 56.04 in denying Zenith’s second motion for continuance.

The Board also identified “an alternate procedure” between Rule 56.07, which requires an affidavit, and Tennessee Compilation Rules and Regulations 0800-02-21-.18(1), which doesn’t, when more time is needed for the non-moving party “to respond, obtain affidavits, engage in discovery, or take depositions” concerning a dispositive motion.

“We need not decide whether the alternate procedure in this regulation…conflicts with Rule 56.07,” wrote the Board, “as we conclude Zenith complied with Rule 56.07 by filing an appropriate affidavit.”

Instead, the Board identified five factors it considered “pertinent to the decision” concerning whether the trial court should’ve continued the summary judgment hearing:

(1) the length of time Employee’s July 9, 2021 petition had been pending;

(2) her counsel’s request to cancel the September 2021 expedited hearing and his representation to the trial court that he intended to proceed with a compensation hearing when Employee reached maximum medical improvement;

(3) the reasons advanced by Zenith supporting its request for additional time;

(4) Zenith’s diligence in seeking a continuance; and,

(5) the possible prejudice to Zenith if the continuance was not granted.

Concerning the denial of a continuance, the Board concluded the trial court “reached an unreasonable decision resulting in an injustice to Zenith.”

The grant of partial summary judgment

The Board also reversed the trial court’s decision to grant partial summary judgment over an incorrect application of Rye v. Women’s Care Ctr. of Memphis, MPLLC, and because Zenith had raised “material factual issues” suggesting Mrs. Love “did not know who her employer was, what company paid her wages, or how much she was paid.”

Most notably, the Board concluded that the trial court incorrectly applied a burden-shifting analysis from Rye, an analysis intended for cases in which the moving party does not have the burden of production at trial.

Certainly, the Rye analysis applied by the trial court is a familiar refrain in summary judgment orders:

“[W]hen the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the nonmoving party’s claim or defense.”

But Mrs. Love was the moving party and had the burden of proof at trial, and Zenith hadn’t asserted an affirmative defense. So, the trial court should’ve examined whether Mrs. Love produced evidence that “if uncontroverted at trial would entitle [her] to a directed verdict.”

“Such an affirmative showing,” quoted the Board from TWB Architects, Inc. v. Braxton, LLC, “shifts the burden of production to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial or to submit an affidavit requesting additional time for discovery.”

With respect to Mrs. Love’s statement of undisputed facts, like the trial court, the Board deemed Zenith’s responses of “agreed based on discovery performed to date” as admissions for the purpose of summary judgment.

“However,” wrote the Board, “Zenith contended there were material factual issues concerning whether [Mrs. Love] was an employee of Love Management or another company under the ‘Love Brand,’ or both[.]” And Zenith supported that contention by citing Mrs. Love’s testimony that she didn’t know who her employer was, which company paid her wages, or how much she was paid.

As a result, “[d]ivergent inferences could reasonably be drawn,” wrote the Board, “as to whether [Mrs. Love’s] injuries occurred in the course and scope of her employment with Love Management[.]” And “the trial court should not have granted [Mrs. Love’s] motion for partial summary judgment.”

The concurring opinion: Why bifurcation is the b-word

Writing separately, Judge Conner concurred “to reiterate the difficulties that often arise when parties seek to bifurcate the issue of compensability prior to the occurrence of the final compensation hearing.”

Those difficulties form a long list, which Judge Conner stocked with thoughtful deliberation and several important quotes from previous Appeals Board cases. With so many takeaways, just numbered and paraphrased here, it’s best to read it yourself. But here’s a rundown.

First, bifurcation is of limited or no use. If it’s a final order, then appeals disrupt the brevity that make bifurcation attractive in the first place. If the decision isn’t final, then nothing prevents the party who lost from getting more discovery and turning the tables, making it all for naught.

Second, bifurcation doesn’t accomplish the legislature’s intention that workers’ compensation cases be resolved in a “fair, equitable, expedient, and efficient manner.” In support, Judge Conner quoted then-presiding Judge Marshall Davidson from Cotton v. HumaCare, Inc.

“In my view,” Judge Davidson wrote in Cotton, “moving a case toward resolution one inch at a time through a series of bifurcated trials is generally inconsistent with these objectives.”

Third, because litigation continuously develops and moves, bifurcation can’t capture any finality. Like a blue-tailed skink, litigation just grows a new tail. Here, Judge Conner quoted an Appeals Board case at length, Foriest v. United Parcel Service.

“Given the twists and turns inherent in litigation, it seems the better practice is to resolve such issues [when]…the parties and the court no longer face uncertainties over future developments, as opposed to adjudicating disputes …in piecemeal fashion as the case winds its way through the litigation process.”

Fourth, simply put, it’s just plain frowned-upon. Again, he quoted from Foriest that Tennessee courts “have cautioned against [its] use,” and specifically, “our Supreme Court’s Special Workers’ Compensation Appeals Panel has observed that bifurcated trials serve little purpose in workers’ compensation cases.” Other courts, he continued, have observed that “the interests of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity.”

Fifth, and importantly, neither the workers’ compensation statutes nor the regulations contemplate bifurcation and in fact employ other mechanisms to accomplish that economy without all the complication.

“A trial court has the authority to order the initiation of benefits or deny the claim using either of these mechanisms,” wrote Judge Conner about expedited hearings and motions. So, bifurcation is particularly unnecessary in workers’ compensation.

Sixth, appeal rights become unnecessarily obfuscated. He drew from Foriest again, where affirming a bifurcated compensation order would have made it “unclear where that leaves the parties.” In that decision, the employer arguably couldn’t have appealed to the Tennessee Supreme Court “because such an appeal does not fall within the ambit of an appeal as of right…. Moreover, if the bifurcated compensation order cannot be certified as final, it arguably does not become enforceable[.]”

As for partial summary judgment in Love, “it was essentially a non-binding advisory opinion regarding the issue of compensability,” he wrote. “[T]he trial court erred in using the summary judgment process to, in effect, issue a bifurcated compensation order that was interlocutory in nature and that resolved nothing for the parties.”

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