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Flowers v. Tennessee Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602
(Tenn. Ct. App. 2006). A liquidator seeking to recover payment from members
of a self‐insured trust could not prevent the members from obtaining through
discovery copies of administrative fee invoices by invoking the attorney‐client
and work product privileges. The liquidator carried the burden of proof to
demonstrate that the discovery limitations requested were necessary to protect
the liquidator from undue burden or expenses. The liquidator failed to meet
that burden.
Flowers/Newman v. Tennessee Trucking Ass’n Self Ins. Group Trust, In re T.L.
Green v. Western Express, Inc., 2008 Tenn. LEXIS 416 (Tenn. 2008). The court
applied the Sizemore factors and concluded that a late claim was excusable
because the liquidator was not prejudiced by the late filing and the length of the
delay was minimal. The claim at issue was late because the claimant’s attorney
missed a deadline to file an objection to the referee’s findings of fact and
conclusions of law before the chancery court.
Flowers v. Universal Care of Tennessee, 2007 Tenn. App. LEXIS 643 (Tenn. Ct.
App. 2007). The liquidator does not have the authority to excuse a late filing by
a claimant if the claimant had knowledge of the claim prior to the deadline. By
contrast, the chancery court may so excuse the lateness of a filing.
United Physicians Ins. Risk Retention Group v. United Am. Bank of Memphis,
1996 Tenn. App. LEXIS 69 (Tenn. Ct. App. 1996). The Commissioner of
Commerce and Insurance, as liquidator of the insolvent insurance company,
filed a petition to avoid a transfer made by the insurance company to a bank.
The Commissioner argued that transfers made within four months of a petition
for rehabilitation were invalid. The court rejected that argument, holding that
the statute looked only to the timing of a payment relative to the filing of a
petition for liquidation—not a petition rehabilitation. Because the transfer at
issue occurred more than four months prior to the filing of the petition for
liquidation, it fell outside the statutory avoidance period. The court upheld a
dismissal of the petition to avoid the transfer.
Texas
Cotten v. Republic National Bank of Dallas, 395 S.W.2d 930 (Tex. Civ. App.
1965), writ ref. n.r.e. In an action by receiver of insolvent insurer against bank
for fraud and receiver appealed from summary judgment in favor of bank, the
court held that receiver has right to sue for fraud to recover assets of insurer
for general benefit of all creditors, stockholders, and policyholders of the
insurer. Receiver may not act as the representative of any individual to bring
suit for fraud that is personal to that individual.
Eagle Life Insurance Co. v. Jesus Hernandez, 743 S.W.2d 671 (Tex. App. 1987). A
liquidator appointed by the State Board of Insurance Commissioners, while
acting as a receiver for an insurance company, is not exempt from the
requirement of filing an appellate cost bond. The court held that the liquidator
is not serving as an officer of a governmental entity (and thereby exempt,
pursuant to the Texas statute), but stands in the shoes of the insolvent
insurance company.
English Freight Co. v. Knox, 180 S.W.2d 633 (Tex. Civ. App. 1944) writ. ref.
w.o.m. As the receiver of an insolvent corporation, that receiver has no
greater rights than the corporation possessed by itself. However, the receiver
acts in a dual capacity. The receiver is a trustee for both stockholders and
creditors and as trustee for the creditors the receiver may maintain an action