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Briefing Completed for Minor Liability Waiver Appeal

With the filing of our Reply Brief, the briefing is completed on our minor liability waiver appeal, which is set for oral arguments before the Tennessee Court of Appeals on September 21, 2016.  The principal brief can be found here.  A portion of the Reply Brief regarding potential waiver of a parent's medical expense claim provides as follows:

The Appellant asserts that if this Court affirms the trial court’s Order restricting Ms. Blackwell from asserting claims on Mr. Blackwell’s behalf for pre-majority medical expenses, Mr. Blackwell would nevertheless “be subject to a potential subrogation claim[.]”  (Reply p. 13.).  First, the Appellant’s assertion in this regard is entirely improper and should be excluded from this Court’s consideration in toto.  In that regard, not only is such a contention entirely irrelevant to the question posed to this Court – specifically, the enforceability of a clause which waives the right to bring a claim for medical expenses – but the Appellant has not once presented any argument and/or evidence supporting its contention until its Reply Brief.

Second, the Appellant’s assertion in this regard is flatly incorrect.  To be clear, “[i]n the context of insurance, subrogation allows the insurer to ‘stand in the shoes’ of the insured and assert the rights the insured had against a third party.”  York v. Sevier Cty. Ambulance Auth., 8 S.W.3d 616, 619 (Tenn. 1999) (emphasis added) (citing Wimberly v. American Casualty Co., 584 S.W.2d 200, 203 (Tenn. 1979)).  In other words, if Mr. Blackwell does not have a cognizable claim for medical expenses against Sky High Nashville, any alleged subrogation claim related thereto would be non-existent. Id.  Moreover, any insurer who allegedly paid expenses on Mr. Blackwell’s behalf would likewise not be entitled to recover against Mr. Blackwell if his claim for medical expenses was extinguished under any reimbursement theory.  Id at 618-19 (the terms “subrogation” and “reimbursement” are not synonymous).  Indeed, it is well-settled that an insurer is not entitled to reimbursement for medical expenses made on behalf of the insured “when the insured has not been made whole for his or her losses, even where a ‘right of reimbursement’ provision is contained in the insurance policy.”  Id. at 617-18 (citing Wimberly, 584 S.W.2d at 203)).  Accordingly, suggesting that Mr. Blackwell would somehow be “prejudiced” by having to face a claim for subrogation and/or reimbursement brought by an insurance company is objectively incorrect based on well-settled Tennessee law . . .

. . . Finally, the Appellant asserts that this case “falls right in line with this Court’s holding in Wolfe.”  (Reply p. 13.)  This is also incorrect.  Indeed, the principle stated in Wolf is simple: “A parent may waive or be estopped to assert his [existing] right to recover . . . and permit the child to recover the full amount to which both would be entitled.” Wolf v. Vaughn, 152 S.W.2d 631, 633 (Tenn. 1941) (emphasis added).  Here, Ms. Blackwell was never entitled to recover any medical expenses allegedly paid on Mr. Blackwell’s behalf.  Accordingly, for this reason, and for all of the reasons emphasized in Sky High Nashville’s principal Brief, the case before this Court is entirely different than the principles espoused in the Wolfe case, and Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21, 1984) and its progeny.  Indeed, Ms. Blackwell extinguished her claim for medical expenses before it ever existed and she may not now attempt to recover such expenses derivatively through Mr. Blackwell.