# FILED
May 6, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA

TION FANNIE TUGGLE and ) HOYT TUGGLE, ) ) Filed: May 6, 1996 Plaintiffs-Appellees. ) ) ) SHELBY CIRCUIT Vs. ) ) ) HON. KAY S. ROBILIO, ALLRIGHT PARKING SYSTEMS, ) JUDGE INC., ) ) Defendant-Appellant. ) No. 02-S-01-9501-CV-00009

For Appellant: For Appellees: Carl Wyatt Lanier Fogg Robert A. Cox Memphis, Tennessee GLASSMAN, JETER, EDWARDS and WADE, P.C. Memphis, Tennessee



# O P I N I O N

AFFIRMED. ANDERSON, C.J.1 The statute au thorizes a to tal of eight pe rem pto ry chal lenge s per side w hen a civil s uit involv es more than one party per side. For ex am ple, if th ere a re two party p laintiff s, the n eac h is entitl ed to four per emp tory challeng es. How ever, if there are m ore than two party plain tiffs, th e precise division of the eight peremptory chal lenges among the plai ntiff s is a matter t he statute assigns to the di scretion of

the tri al court.Tenn. Code Ann. § 22-3- 105. -2- We gra nted thi s appeal to determ ine wheth er a party wit h a derivat ive claim - loss of consortium - is entitled to challenges under the peremptory jury challenge statute, Tenn. Code Ann.§ 22-3-105.

We conclude that the clea r and unambiguous language of the jury challenge statute provi des additional peremptory c hallenges to a party w

ith a derivativ e claim, 1 and that a new trial is required because the denial of that statutory right cons

titutes prejudice to the ju dicial process. In the i nterest of judicial economy, sinc

e a new trial is req uired, we have also d ecided that under comparative fault principl es, the recovery of a sp ouse claiming loss of consortium will be reduced in proportion to or barred by the fault of the physically injured spouse. We, therefore, affirm the Court of Appeal s’ decision revers ing and remanding for a new trial.

BACKGROUND The plaintiff, Fannie Tuggle, filed this personal injury action for damages after she fell on an icy w alkway in a parki ng lot operated by the defendant, Allright Parking Systems, Inc. (“Allright”). Her husband, Hoyt Tuggle, joined in the suit alleging lo

ss of consortium. The Tuggles allege that Allrig ht was negligent in failin g to clear t he ice fro m the walkwa y.

At the first trial of this c ase, the plaintiffs won a jur y verdict, but a new

trial was granted. The second trial occurred after McIntyre v. Balenti ne , 833 S.W.2d 52 (Tenn. 1992), and was gov erned by its principl es. The defendant pled that-3- both plaintiffs were barred fr om recovering because F annie Tuggle’s fault was greater than the fault of Allri ght.

At the sec ond trial , during voi r dire of t he prosp ective jur y, the two plaintiffs, having exer

cised four peremptory chall enges, attempted to exerci se a fifth peremptory challenge of a j uror, claiming they were entitled to four each, and a total of eight, pursuant to Tenn. Code Ann. § 22-3-105(b)(1994 Repl.). The trial judge disallow ed the fifth challenge, presumably concluding that because one of the plaintiffs was ass erting a derivativ

e claim for loss of consortium, the two plaintiffs were entitled to a total of only fou r peremptory challenges under the statute.
The jury was the reafter

impanel ed and sw

orn, and following the

proof, returned a verdict for Al lright. They determined that Allright was

negligent, but concluded that Fannie Tuggle’s negligence equal ed or exceeded 50 percent of the total negligence. The j uror the plaintiffs had attempted to ch allenge served as forep erson of the jury.
On appeal, the Court of Appeals conc luded that the derivativ e character of a claim for loss of consortium does not alter the meaning of the statute which allows eight peremptor y challenges in case

s which involv

e more than one plaintiff. Accordingly , the Court of Appeals rever sed and remanded for a new trial.
Thereafter, we granted permi ssion to appeal to determine w hether a party with a derivative claim is entitled to additional challenges under the jury challenge statute, and if so, w hether the trial court’s

failure to allow the additional challenges resulted in prejudice requiring a remand for a new trial.-4- PEREMPTORY CHA

LLENGES In this Court, Allrig ht argues that the trial court did not err in refusi ng to allow the plaintiffs to ex ercise eight peremptory challenges since the lo ss of consortium claim is deri vative. Allrig ht urges us to follow dec isions from other courts which hold that additional challenges shou ld be awarded onlyif the interests of the multiple party plaintiffs are antagonistic.
On the other hand, the Tuggles argue that under the plain l anguage of the Tennessee statute they wer e each entitled to four peremptory challenges because this case involv es more than one plaintiff.
We begin our analysis with some fundamental principles. In Tennessee, challenges to a prospecti ve juror may be either

peremptory or for cause. The right to challenge per

emptorily is the rig ht to exclude the prospecti ve juror without assigning any reas

on for the challenge. Peremptor y challenges are all owed by the Legislature as an act of grace and can be exercised as a matter of right only to the extent allowed by statute. Kunk v. Howell , 289 S.W.2d 874, 877 (Tenn. App. 1956).
The Legislature has determined that peremptory challeng es will be allowed in civil cases by Tenn. Code Ann. § 22-3-105 (1994 Repl.), which provides:
(a) Either party to a

civil action may challenge four (4) juror s without assigning any caus

e. (b) In the event there is more than one (1) party plaintiff or more than one (1) party defendant in a civil action, four (

4) additional challenges shall be all owed to such side or sides of the c ase; and the trial court shall i n its discretion div ide the aggregate number of challenges between the par ties on the same side whic h shall not exceed eight (8) chal lenges to the side, regardless of the number-5- of parties. Even when tw o (2) or more cases are c onsolidated for trial purposes, the total challenges shall be eight (8), as herein provided. (Emphasis added.) In determining whether the statute grants eight peremptory challenges in this case, we apply well-settled principles of statutory construction, the most basic of which is to asc ertain and give effect to the i ntention and purpose of the legislature. Worrall v. Kroger Co. , 545 S.W .2d 736 (T enn. 197 7). Legisl ative intent and purpose is to be ascertained primarily from the natura l and ordinary meaning of the language used, without a forced or subtle construct ion that would limit or extend the meaning of the language. Nationa l Gas Distri butors, I nc. v. State , 804 S.W.2d 66 (Ten n.1991). As early as 1841, this Court said that where the language contained w ithin the four corners of a statut e is plain, clear, and unambiguous and the enactment is w ithin legislativ

e competency, "the duty of the courts is simple and obv ious, . . . obey it." Miller v. Childress , 21 Tenn. (2 Hum.) 320, 321-22 (1841). As to legislative intent, this Court has more recently observed that: [I]f [the legislative intent] is expressed i n a manner devoid of contradiction and ambiguity, there is no room for interpr etation or construction, and the judges are not at liberty, on consideration of policy or hardship, t

o depart from the words of the statute . . . . Austin v. Memphis Pub. C o. , 655 S.W.2d 146, 14 8 (Tenn. 1983).
Applying t he foreg oing princ iples of statuto ry constru ction, we o bserve that Tenn. Code Ann. § 22-3-105 (b) plainly provides that “[i]n the event there is more than one (1) party plaintiff . . . four (4) additional challenges shall be allowed . . . .” The statute is free of ambiguity, and i n the face of such clear language, this Court’ s duty is to apply the statute as it is wr itten, without further-6- interpretation or constr uction. In this case, ther e are two plaintiffs. Therefore, the answer is clear.Under the statute, each of the plai ntiffs in this case was entitled to four peremptory c hallenges, and the trial court erred in refusing to grant the additional challenges.
Fatal to the defendant’s argument i s the absence of language in the Tennessee statute which conditions additional challenges on th e antagonistic interests of the party plaintiffs. The Florida and Geo rgia decisions upon which the defendant relies involv e statutes with different lang uage than the statute at issue he re and ar

e, there fore, in apposit

e. Moreover, the deriv ative n ature of a claim for loss of consortium i s irrelevant to the co nstruction of this statute. Ou r inquiry begins an d ends with the plain lang uage of the statute which di ctates the number of challenges requir ed when a case involv

es more than one plaintiff.

Therefore, we conclude that w hen there are two plainti ffs in one lawsuit, Tenn. Code Ann. § 22-3-105 (1994 Repl .) requires that each be afforded four peremptory challenges. Cf

. Crawford v. Heaberg , 709 S.W.2d 611 (Tenn. App. 1986)(Holding that where three separate and independent lawsuits were consolidated for trial by jury, the plaintiffs w

ere entitled to a total of eig ht peremptory challenges t o be divided among them as the t rial judge deemed appropriate).
Having determined that the trial court erred, w e must next consider whether the error req uires a remand for a new tr ial. We have previously stat ed, in the criminal context , that “[t]he Legislatur e, in its wisdom, cer

tainly has the right and power to direct the judicial process.” State v. Cook , 816 S.W.2d 322, 327 (Tenn. 1991). We also have emphasized that, “[r]ules prescribing jury selection procedures are i ntended to protect the integri ty of the jury sys

tem by-7- providing a uniform and or dered method that ensures the accus ed a fair and impartial jury chosen from a fair cross-section of the commun ity.” State v. Coleman , 865 S.W.2d 455, 458 (Tenn. 1993). Although the stak es are different in civil cases, the power of the Legislature to direct the judicial process is unchanged, and the purpose of the proced ural rules is the same -- to insure uniformity, impartiality, and fairness in jury s election. While it is difficult for an individual litigant to prove that a deviation from such procedural rules “more probably than not” affects the jud gment in a particular cas e, it is clear that compliance with such rules protect the integrity of the jury system and safeguard the administration of justice. Id . Therefore, such deviations from prescribed procedural rules have been held to constitute prejudice to the judicial process under Tenn. R. App. P. 36(b). Cf

. State v. Coleman , supra (Court commented that defendant had not been denied the use of his statutorily mandated number of peremptory challenges so no reversal req uired); State v, Cook , supra (Court found prejudice to the judicial process and reversed for a new trial where the defendant was denied his statutory right to have the jury instructed as to the range of possible punishments that w ould result from convictions).
In this case, Hoyt Tugg le was denied the use of his s tatutorily mandated number of peremptory challeng es. In our view, den ial of that right, whi ch was designed to safeguard the admini stration of justice, constitutes prejudice to the judicial process and req uires a reversal i n this case under Tenn. R. App. P. 36(b). As a result, we affirm the Court of Appeals’ decision that a ne w trial must be granted.

COMPARATIVE FA ULT - LOSS OF CONSORTIUM2 S ee Sch wen nen v. Abe ll , 430 N.W .2d 98 (Iow a 1988 ); Feltch v. General RentalCo. , 421 N.E.2d 67 (Ma ss. 198 1); Brann v. Exeter Clini c, Inc , 498

A.2d 334 ( N.H. 1985 ); Lantis v. Condon , 157 C al. Rptr. 22 ( Cal. App . 1979); Chr istie v. Max well , 696 P.2d 1256 (W ash. Ap p. 1985)

.

3 See Eggert v. Working , 599 P. 2d 1389 ( Alaska 1979); Nelson v. Busby , 437 S.W.2d 799 (Ark. 1969); Lee v. C olorado Dept. Of He alth , 718 P.2d 221 (C olo. 1986 ); Mist v. Westin Hotel s, Inc. , 738 P.2d 85 (Hawa i’i 1987); Runcorn v. Shearer Lumber Products, Inc. , 690 P.2d 324 (Idaho 1984); Blagg v. Il linoi s F.W.D. Truck and Equipment Co. , 572 N.E. 2d 92 0 (Ill. 1991); McGuire v. Sifers , 681 P.2d 1025 (Kan. 1984) (s tatutory interpr etation); Thill v . Modern Erecti ng Co. , 170 N.W.2d 865 (Minn. 1969); White v. Lunder , 225 N.W .2d 442 ( W is. 1975); W eave r v. M itche ll , 715 P.2d 1361 ( Wyo. -8- Having determined that a new trial is req uired, in the interests of j udicial economy, we deem it necess ary to resolve a q uestion of first impression - whether, under comparativ e fault principles, the reco very of a spouse claimi ng loss of consortium should be reduced or barred by the fault of the physically injured spouse.
We begin our analysis with a brief review of the law in this State as it relates to loss of consortium. In Tennessee, “despite being a separate claim from that of an injured spouse for other damages, loss of consortium is also a derivative claim in th at the ph ysical inju ries or inc apacitie s of one’ s spouse g ive rise to and establish the claim.” Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. App. 1989); see also Swafford v. City of Chattanooga , 743 S.W.2d 174, 178 (Tenn. App. 1987).
In contrast to the Tennessee approac h, a small number of jurisdictions view a claim for los

s of consortium as an essentiall y different and independent cause of action from the physical ly injured spouse. Bas ed on that premise, those jurisdictions appl y the rule that the recov ery awarded the spouse claiming loss of consortium is not affected by the fault of the physically injured spouse. 2
The clear majority of jurisdictions, however, hold that a loss of consortiu m award must be reduced, and may be barred, by the comparati ve fault of the physically injur

ed spouse. 31986); Quadrone v. Pasco Petr oleum Co. Inc. , 752 P.2d 50 4 (Ariz. App . 1988); Hamm v. City of Milton , 358 So .2d 121 ( Fla. App . 1978); Kolkman v. Falstaf f Brewing Corp ., 511 N.E.2d 478 (I nd. App. 1987); Tich eno r v. Sa ntillo , 527 A.2d 78 (N.J . Super. 1 987); Mai dma n v . Stagg , 441 N.Y.S. 2d 711 (N.Y. A.D. 198 1); Scattaregi a v. Shin Shen Wu , 495 A. 2d 552 (Pa. Su per. 1985); Turnbow v. Wasden , 608 F.S upp. 237 (D.Nev . 1985) (inte rpreting N evada la w). -9- Courts following the majority rule rega rd a claim for loss of consortium as derivative for purpos

es of comparative fault, and exp lain their rationale as follows: [T]here must be a tort which gives rise to a c

ause of action that must be maintained by the [phy sically] injured spouse in order for the non-injured spouse to cl aim a loss of consortium. In other words, the loss of consor tium claim is dependent upon the negligent injury of the other spouse who has the primary tort cause of action.

Mist v. Westin Hotels, Inc. , 738 P.2d at 90. While ackno wledging that “each spouse is equal and independent and suff ers a personal loss when the other is injured,” these courts emphas ize that “does not alter the fact that the basis for recovery for loss o

f consortium is interference w ith the continuance of a healthy and happy marital life and injury to the conjugal relation.” Eggert v. Working , 699 P.2d at 1391.

Accordi ng to th e majority of ju risdic tions, r educing the rec overy of a spouse claiming loss of consortium in proportion to the fau lt of the physically injured spouse is the simplest and easiest way to achieve a just result and insure that a loss resulting from an accident is distributed among those whose negligence caused it. Id.
Fostering family harmony is another rationale for the maj ority approach, which was articulated by the Colorado Supreme Court as follows:
If a claim for loss of consortium w ere viewed as totall

y independent of the other spouse’s personal i njury claim, there w ould be no-10- reason to preclude one spouse from s uing another for loss of consortium or to prohibit the primary tortfeasor sued in a consortium claim from impleading the spouse who suffered the personal injuries. Placing one spouse in an adversarial relationship to the other over the latter ’s claim for loss of consorti um introduces an element of legal conflict into the marriage that, far from contributing to marital

harmony, will most likely have the effect of fostering discord between the parties. The derivative approach avoids much of this potential for conflict, since the recov ery on a consortium claim is dependent s olely on the determination o f the relative degrees of negligence of the defendant and th e spouse who sued for the personal injuries. Lee v. Colorado Dept. of Heal th , 718 P.2d at 232. Because we are persuaded that the majority rule is

the better reasoned rule and is consistent with prior Tennessee decisions describing a claim for loss of consortium as derivativ e, and consistent with our purpose in adopting comparative fault which was to achieve fairness , McIntyre v. Balenti ne , 833 S.W.2d at 58, we conclude that the majority view, which h olds that the fault of the physically inj ured spouse either reduces or bars recovery on the other spouse’s loss of consortium claim, should be adopted as the law in this State.
Applying t he major ity rule up on retria l will result in a reduc tion of H oyt Tuggle’s recovery

for loss of consortium if Fannie Tuggle is determined to be less than 50 percent at fault. H owever, both Hoyt and Fannie Tuggle wil l be unable to recover if Fannie Tuggle is determined by a jury to be 50 percent or more at fault.

CONCLUSION Having determined that the clear and unambiguous language of the jury challenge statute, Tenn. Code Ann.§ 22-3-105(b) (1994 Repl.) , provided for additional peremptory challenges to the plaintiff with a derivative claim in this case, an d that th e trial cou rt error res ulted in p rejudice to the jud icial proc ess, we-11- affirm the Court of Appeals’ judgment reversing and remandin g for a new trial. Upon retrial, any rec

overy for Hoyt Tug gle’s claim for loss of co nsortium shall be reduced in proportion to the fault of Fannie Tuggle if less than 50 percent, and barred completely if the ju ry determines that Fannie Tuggle’s fault equaled or exceeded 50 percent. Costs of this appeal are taxed to the defendant, Allright Parking Sys tems, In c., for whi ch execut ion may iss ue if nec essary.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Reid, Birch and White, JJ.