# FILED

September 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk NORTHLAND INSURANCE CO., ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9811-BC- 00616 v. ) ) Tennessee Claim s Commissio

n STATE OF TENNESSEE, ) No. 94435 ) Defendant/Appel

lant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE TENNESSEE CLAIMS COMMISSION FOR

DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE W. R. BAKER, COMMISSIONER

JAMES G. O'KANE Baker, McReynolds, Byrne, O'Kane, Shea

& Townsend 607 Market Street,

11th Floor P. O. Box 1708 Knoxville, Tenne ssee 37901-1708 ATTORNEY FOR PLAINTIFF/APPELLEE

PAUL G. SUMMERS Attorney General and Reporter
MICHAEL E. MOORE Solicitor General
ANTHONY D. MILLER LAURA T. KIDWELL Assistant Attorneys General 425 Fifth Avenue No

rth Second Floor, Cor

dell Hull Building Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANT/APPELLANT

REVERSED AND DISMISSED

WILLIAM B. CAIN, JUDGE2 

## O P I N I O N The S tate of

Tennessee appeals an adverse judgment of the Tennessee Claims Commission. Beca use we have determined that the Claims Commission lacks subject matter jur

isdiction, the judgme

ntof the Commission is r eversed.

The genesis of the claim

was a multiple vehi

cle accident occur

ring in the west bound lane of Interst

ate Highway 40 i

n Putna m County, Tennesse e on March 14, 1988. Si

nce the appellants c

hallenge only

the failure of the Claims Commission

to dismiss the claim

under Rule 12.02(6) of the Tennessee Rules of Civil Procedure for lac k of subject matter ju risdiction, there is neither transcript of

the evidence nor Rule 24(c) stat ement of the evidenc

e before this court. "[W]hen a compla

int is tested by a [Rul

e] 12.02(6) motion to dismis s, we must take all the well-

pleaded, materia

l factual allegati

ons as true, and we

must construe the complaint libera

lly in the plaintiff's favor." Dobbs v. Guenth er , 846 S.W.2d 270, 273 (Tenn. App. 1992).

The complaint alleges th

at on the morning of

March 14, 1988, nea

r mile marker 296 on Interstate 40 in Putnam County, Tennessee, a tract o r trailer, driven by Dion Deskovic, w as involved in

a motor vehicle acci

dent while travelingin the west bound lane. This accident resulted in a spill of diesel fuel in the west bound lanes

. Employees of the T ennessee Departm

ent of Transportation

spread sand on the

highway because of the presence of the diesel fuel. At this time, Kenneth B. McDonald, an employee of Tennessee Wa

lnut, Inc. and Grundy County Lum ber Co., Inc.,

was driving a 1985 Mack truck and flatbed trailer in a westerly directi on on Interstate 40.As he came upon the
scene of the previous accident, Mr. McDonald attempted to control his vehicle. However, since the Deskovic vehicle was disabled and park ed parti ally in the right west bound lane of Inter state 40, Mr. McDonal d, despite all rea

sonable precautions, was unable to contro l his vehicle. Mr . McDonald's Mack truck struckand killed Mr. Deskovic, seriously and permanently injured one Robert L. Shep pard , and slightly injured one Emmett McGuire, all of whom were attending in some manner the disabled Deskovic vehicle.3 Suit was filed by Mr. Sheppard and his wife, Mr. McGuire and his wife, and the estate of Mr. Deskovic against TennesseeWalnut, Inc., Grundy Cou nty Lumber Co., Inc., an

d Kenneth B. McDonald. The tract or flatbed trailer v

ehicle driven by Mr. McDonald w as being operated by him at the time of the accident, within the scope of his emplo

yment with Tennessee W

alnut and Grundy Count

y Lumber. Northland Insuranc e Company, the liab

ility ins urer of these defendants, settled the cases by paying $150,000.00 to th e esta te of Dion Deskovic, $5,000.00 to Mr. and Mrs. M cGuire, and $845, 000.00 to Mr. and Mrs. Sheppard.

After this settlement wa

s made, Tennesse

e Walnut, Grun

dy Coun ty Lumber, and Mr. McDonald filed th eir clai m with the Tennessee Claims Commission

seeking indemnity and c

ontribution

for the $1,000,000.00 paid in tota l as a s ettlement by Northl and Insurance. O

n May 28, 1992, Nort

hland Insurance ("Appellee") fi

led a motion to be

substituted as plaintif

f and real party in interest before the Claims Commission. This motion was not opposed b y the State ("Appellan

t") and was grante

d by the Commission on Jul y 22, 1992.

The next action

disclosed in the record occurred March 28, 1996, when the State of Tennesse

e filed its 12.02(6)

motion to dismiss for la

ck of subject matter jurisdiction. On Ma

y 1 4, 1996, t he Claims Commission entered the following order:

The State has filed a m

otion to dismiss saying, ".. . there is no provision ... allowing . .. action against the State by an insu rance company for contrib ution, indemnity , or subrogation." In July 1992 an order was entered in this claim saying: "On mo ti on of ... Northla

nd Insurance Compan

y, and for good cause shown, and there b eing no opposition there to by the State of Tennessee as evidenced by the si gnature of the Deputy Attorney General, it is hereby ordere d th a t all claims availa

ble ... be and hereby are consolidated in t his proceeding and tha

t North land Insurance Compan y be and hereby is substituted as Plaintiff real party in interest an d that this matter sh all proceed ..." Andso it appears from the record that it was adjudged over three years ago that this

claimant is procee

ding as a "real par

ty in interest," in contr

ast to proceeding for

subrogation. The State's motion is d enied.

The case was heard on its merits Octobe r 19th and 20th, 1998, b y4

Honorable

W. R. Baker,

Commissioner. T

he Commis sioner held that A ppellee's
a ctual d amages were $845, 000.00, represent ing the sums paid to sett le the claims of Robert Sheppard an d wife. Considering all of the fault at 100%, the Commissioner found the State of Tenne ssee to be 80% at fault and Robert Sheppard to be 20% at fault, with Kenneth McDonald and Dio n Deskovic exonerated from fault. This left total dam ages recoverable

against the State of Tennessee of $676,000.00, but judgment was limited against the S ta te of Tennessee to $300,000.00 under Tenness ee Code Annotated section 9-8-307(e).

The State appeals rai sing the single issue tha t the Claim s Commis sion does not have subject matter jurisdictio n of the case. Ar

ticle I, section 17 of the Constitution

of Tennessee provi

des in part: "Suits m

ay be brought against the Statein such manner and in such courts as the Legislature may by law direct." Tennessee Code Annotated sec tion 20-13-102(a) pro

vides: "No court in th

e state shall have any

power, jurisdict

ion, or authority to e

ntertain any suit aga

inst the state, or against

any officer of the

state acting by authority of the state, with
aview to reach the state, its treasury, fund s, or property, and all s

uch suits shall be dismissed as to the

state or such offic

ers, on motion, ple

a, or demurrer o

f the law officer of the s tate, or counsel employed for the state." The impassioned and eloquent plea by Justic e Henry in Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn. 1975), remains a di ssent. Sovereig n immunity remains f irmly entrenched in Tennessee and its basis is both constitutional and stat u tory. Austin v. City of M

emphis , 684 S.W.2d 624, 637 (Tenn. App. 1984).
Regardingsuit against

the State which the Legislature allows, this court holds as follows:

A statute permittin

g a suit against the state unde

r the authorityof Article I, S ection 17 of the Consti tution of Tennessee must be strictly construed and the jurisdiction cannot be enlarged by implication. Stok es v . University of Te nnessee at Martin, 737 S.W.2d 545, 546 (Tenn. App. 1987). The state cannot be subjected to suits by individuals unless the words of the act are so plain, clear and unmistakable as to le ave no doubt

of t he intention of the Legislature that it should be d one. Quint on v. Board of Claims , 16 5 Tenn. 201, 54 S.W .2d 953, 957 (1932); see also Brewington v. Brewington , 215 Tenn. 475, 387 S.W.2d 777, 779 (1965). Daley v. State , 869 S.W.2d 338, 340 (Tenn. App . 1993 ). A rule of strict5

construction

may be stated in

various terms and it

would seem that ea

ch court, addressingthis particular question , seeks to strengthe n the rule. It is dif

ficult to add anything to the follow ing statement o f

the rule which cam

e from the supreme court more

than sixty years ago: A rticle 1, section 17, of th

e Constitution, dele

gating to th e Legislature the power to authori ze suits against the s

tate, being in derogation of

the state's inhere

nt exemption from suit

, must itself be strictly construed; hence legislation au thorizing s uits against the state must strictly pursue t he constitutional requir

ements, and be

so plain, clear, and unmista ka ble in i ts provisions as to the manner and form in whi ch such sui ts may be brought as to l eave nothing to surmise or conjecture. State v. Cook

, 171 Tenn. 605, 106 S.W.2d 858, 860-61 (1937).

The Tennessee C laims C ommission was crea ted by chapter 972 of t

he Public Acts of 1984

and the statutory universe thereof is codified as Tennessee Code Annotat ed s ection 9-8-301, et seq . By section 1 of cha pter 105 of the Public Acts of

1985, the General Assembly provided for that which appears as the first part of Tennessee Code Annotated sec tion 9-8-307(a)(3) , includingthe provision: "It is the intent of the General Assembly that the jurisdictionof the Claims Commission be libera lly construed to impleme

ntthe remedial purposes of this legislati on."

Even under such liberal co nstructi on, the case at bar cannot be brought within the jurisdiction of the Claims Commiss ion. As this court has previou sly observed: Tenn. Code Ann. § 9-8-307( a)(3)’s liberal c onstruction mandate does not invite the

courts to engage in judicial le gislation. We cannot disregard th

e st atute’s plain meani

ng, and we cannot exte nd the statute’s application to circumstance s not fairly include d in its terms. Mid-South Publishing Co. v. Tennessee State Univ. & Community

College Sys. Bd. of Regent s, App. No. 01-A- 01-9002- C H-00074, slip op. at 6, 16 T. A.M. 5-8 (Ten n.Ct.App. Dec . 19, 1990). Accordingly, we cannot create rights or establish liabilities that are not already em

bodied in the sta

tu te. Rines v. Scott

, 432 A.2d 767, 769 (Me. 1981). Liberal construction signifies only that the interpretative process may produce broader coverage or more inclusive application of statutory concep ts. 3 Norman J. Singer, Statutes and Statutory Con struction § 58.02 (5 th ed. 1992). Hembree v. State , 19 95 WL 50066 (Tenn. App. 199 5), aff’d 925 S.W.2d 5131 State v. Cook , 106 S.W.2d 858, 860-61 (Tenn. 1937) asserts a constitutional and

indeedpre-constitution mandate of strict cons tru ction which neither the legislature nor the courts are empowered to expand and remain in conformity with the commands of A rticle I section 17 of the Constitution of Tennessee. A s late as Morrisv. State , No. 01S01-9804-B C00076, 1999 WL 98965 (Tenn. 1999), the s u preme court has applied the strict construction ruleto Tennessee Claims Commission jurisdiction. See also Daley v. State , 869 S.W.2d 338, 340 (Tenn. App. 19

93); Beare Co. v. Olson , 711 S.W.2d 603, 605 (Tenn. 1986). 6 (Tenn. 1996). 1
Appellee asserts that t

he su bject matter jurisdiction of the Claims Commission

in this case vests by the s tatute r emoving sovereign imm unity. Specifically in its

brief, Appellee

states: Tenn. Code Ann. § 9-8-307( a)(1)(J) vest

s ju risdiction for those claims involving dange rous conditions on sta

t e maintained highways. This section does not exclude claims by a subrogated party. It does not exclude claims for property damage. It does not excl ude claims for contribution or indemnity. To paraphras e subsection

G mentioned in Cox , it does not state that "damages are not recoverable under

this section for cont

ribution and

indemnity." The Courtin Cox recognized the plai n and unambiguousmeaning of the statute. It re

fused, as the

State contended, to arbitrarily bar c laims for injuries cause d by persons in the car

e, cust ody an d controlthe State, yet al

low claims for inju

ries to p ersons inthe care, custody and control of the State. Simil arly, Tenn. Code

Ann. § 9-8-207(a) (1)(J) does not limit recove ry to all claims exc

ept those for contributi on and indemnity. No such language appears in this statute, and it is not implied in the lan guag e of the statute. Rather, the plai n meaning of the statute is to permit such claims arising from danger

ous conditions on state ma intained highways.

This section does not exclude claims by a subrogated party. It does not exclude claims for

property damage. It does not exclude claims for contrib ution
or indemnity. Under t

he rule of strict c

onstructio n applicable to the statutory removal of sovereign

im munity, we do not have a question of "what i s not excluded" but rather a questio n of "what is pla

inly, clearly, and unmis

takably included." In short, Appelle e seeks a liber al construction of what we are constitutionally and sta

tutorily mandated to c

onstrue strictly.

The Claims Commission overruled the 12.02(6) motion on the basis that Northland

Insurance Company

was substituted, w

ithout objection

by the State,
as the "real party in interest." Neither the Claims Commissi

on nor this court nor the parties to the litiga

tion have the power t

o expand subject matte

r jurisdiction7

in such a manner. Stokes v. Unive rsity of Tenn. , 737 S.W.2d 545, 546 (Tenn. App. 1987).

In this case, the estate of Dion Deskovic, along with Mr. and Mrs

. Sheppard and Mr. and Mrs. McGuire, had potential claims aga

inst both the State of Tennessee be

fore th e Tennessee Clai ms Commission, and K enneth McDona ld , Tennessee Walnut, Inc., and Grundy County Lumbe r Co., Inc., before the Circuit Court of Putnam Coun

t y. Appellee, Northland Insurance Company was exposed to liabil ity not because of any

"dangerous conditions o

n state maintained highways" but because of its policy of l iabilit y insurance covering McDonald, Tennessee Walnut, and Grundy County Lumber. Appellee seeks indemnity or contribut ion from an alleged joint tort

feasor that for good
or ill is protected by

sovereign immunity

except where such immunity has been
remov ed by statute. Neither Tennessee Code Annotated section 9-8-307 nor an y otherstatute purports to wa ive sovereign immunit y for indemnity or contribution

claims. The p ositi on of Appellee is tenable only under an extremely

broad and liberal c

onstruction of

the statute. This court is bound by a constitutional and statutorily mandated strict construction rule.

The foregoingis dispositive of this c ase. It is well, however, to note that to the extent Appellee 's claim involves the Uniform Contributi

on among To rt-feasors Act, Tenn. Code Ann. § 29-11 -101, et seq. , there is no e xpres s statement in the statute that it is appl icab le to the state. T ennessee has long
a dher ed to the rule that "[t] he general business of the legislative powe

r is to establish laws for individuals, not for the sovereign; and, when the rights of the commonwealth

are to be transferre d to affected, the intention must be plain

ly expressed or necessarily implied." Keeble v. City of Alcoa , 204 Tenn. 286, 289 , 319 S.W.2d

249, 250 (1958); Davidson County v. Harmon , 200 Tenn. 575, 582, 292 S.W.2d 777, 780 ( 1956); Harrison Constr. Co. v. Gibson County B d. of Educ. , 642 S.W.2d 148, 150 (Tenn. App . 1982); see also General Tel. Co. v. Boyd , 208 Tenn. 24, 343 S.W.2d 872(1960); Automobile Sales Co. v. Johnson , 174 Tenn. 38, 122 S.W.2d 453 (1938).

The Claim s C ommission is without sub ject matter jurisd

iction of this case and the judgment of the

Commission is rever

sed and the case dism

issed. Costs8

are assessed against Appellee, Northland Insuran ce Co ., for which exe cution may issue if necessa

ry.



## _____

_____________________ ___ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ _ BEN H. CANTRELL, P .J., M.S.

__________________________________ _ WILLIAM C. KOCH, JR., JUDGE