### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 3, 2000 Se ssion

NORTHLAND INSURANCE CO. v. STATE OF TENNESSEE

Appeal by permissio

n from the Court o

f Appeals, Middle Sect

ion Tennessee Claims Commission for Davidson County No. 94435 W. R. Baker, Commissioner

No. M1998-00307-SC-R11-CV - Filed December 8, 2000

The issue in this case is whether the Tennessee Claims Commission has subject matter jurisdiction

over a claim against the

State of Tennessee for contribution and indemnity. The jurisdiction of the Claims Commission is set forth in Tennessee Code Annotated section 9-8-307. That statute allows for suits against

the State in the Claims Commission alleging that state employees have maintained

a dangerous con

dition on a state mai

ntained highway

. The st atute, ho wever, does not mention contribution and indemnity suits as part of the Commission’s jurisdiction. Bec ause of the princ

iple that a waiver of

sovereign immunity must be clear and unmistakable, we conclude that the State has
not consented to hear contribution and indemnity claims. We therefore affirm the Court of Appeals’ decision dismissing

the appellant’s c

laim.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Affirmed

F RANK F. D ROWOTA , III, J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined.

Jam es G . O'K ane, Kno xvi lle , Te nne sse e, fo r th e app ell ant , No rth lan d Ins uran ce C omp any.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Anthony D. Miller, Assistant Attorney General; Laura T. Kidwe ll, Assistant Attorney General, Nas hville, Tennessee, for the appellee, State of Tennessee.

OPINION

On March 14, 1998, Di

on Deskovic

became involved

in an accident while driving his tractortrailer on Interstate 40 in Putnam County. The

accident cause

d the fuel tank of t

he tractor-tra

iler to spill diesel f

uel onto the highway. Employees of the T ennessee Department of Transportation arrived and spread sand over the

spilled fuel. Thereafter, Kenneth B. McDonald, while working for-2-

Tennessee Walnut, Inc. and Grundy County Lumber Co., Inc. (“Walnut, Inc.”), drove his truck and flatbed trailer up to the accident scene. Mr. McDonald attempted t o avoid a colli sion with Mr. Deskovic’s disabled tractor-trailer, which partially obstructed the highway , but he could not do so. Mr. McDonald’s truck

struck and killed Mr. Deskovic, who was standing outside his vehicle, and injured two wrecker operators, Robert L. Sheppard and Emmet McGuire, who wer e at the scene attending the disabled tractor-trailer.

Mr. Sheppard and his w

ife, Mr. McGuire

and his wife, and the estate of Mr. Deskovic filed suit against Mr. McDonald

and Walnut, Inc . Northland In surance Co., the l

iability insur

er of these defendants

and the appellant befor

e this Court, settled

the cases by

paying $15 0,000.00 to the esta te of Mr. Deskovic, $845,000.00 to Mr. a nd Mrs. Sheppard, a

nd $5,000.00 to Mr. a

nd Mrs. McGuire.

After this settlement, Mr.

McDonald and Waln

ut, Inc., filed a claim with the Tennessee Claims Commission seeking indemnity or contribution for the $1,000,0 00.00 paid by Northland, alleging that the State’s negligence in failing to stop traffic caused the accident. I n May 1992, Northland filed a motion in the Claims C ommission to

be substituted as pl

aintiff and rea

l party in interest. The Stat

e did not oppose the

motion and the Commiss ion granted it.

For reasons that are not clear from the record, no further action was taken on this litigation for four year s. Then, in March 1996, the State moved to dismiss the suit for lack of subject matter j urisdiction. The Claims Commission denied the motion. After trial, which occurre d in Octobe r 1998, Commissioner W. R. Baker entered a final order. The total d

amages recov

erable again

st the Statewere in excess

of the $300,000.00 limit under Tennessee Code Annotated section 9-8-307(e), therefore, judgment was entered against the State of Tennessee in the amount of $300,000.00.

STANDARD OF REVIEW A motion to dismiss for lack of subject matter jurisdiction falls under Tennessee Rule of Civil Procedure 12.02( 1). The concept of subject matter jurisdiction involves a court's lawful authority to adjudicate a controversy brought before it. See Meighan v. U.S. Sprint Communications Co.
, 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. & Casualty Co. v. Sloan , 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). Subject matter jurisdiction involves the nature of the cause of action and the relief sought, see Landers v. Jones , 872 S.W.2d 674, 675 (Tenn . 1994), and can only be conferred on a court by constitutional or legislative act. See Kane v. Kane , 547 S.W.2d 559, 560 (Tenn. 1977); Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn. Ct. App. 1989). Since

a determination of w

hether subject ma

tter jurisdiction e

xis ts is a quest

ion of law, our standard of review is de novo, without a presumption of corr ectness. See Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 628 (Tenn. 1999).

ANALYS IS Article I, section 17 o

f the Tennessee

Constit ution provide s that “[s]uits may be brought against the State in such manner and in such courts as the Leg islature may

by law dire

ct.” This constitutional provision reflects sovereign immunity, the notion that a sovereign gov ernmental entity
cannot be sued in its own co

urts without i

ts consent. See State v. Cook , 171 Tenn. 605, 609, 106-3-

S.W.2d 858, 860 (1937); Tenn. Code Ann. § 20-13-102 (

“No court in

the state shall have any power, jurisdiction, or authority to entertain any suit ag ainst the stat e...with a view to r each the state, i

ts tre asu ry, funds, or proper ty...”). As

a general inte

rpretiv e matter , this Court has held that the principle of sovereign immunity requires that legislation authorizing suits agai nst the state must provide for the state’s consent in “plain, clear, and unmistakable” terms. Cook , 171 Tenn. at 611, 106 S.W.2d at 861; see also Beare Company v. Olsen , 711 S.W.2d 603, 605 (Tenn. 1986). We must therefore carefully analyze the statute g ranting jurisdiction t o the Tennessee Claims Commission, which this Court has previ ously held cr

eates a “sweep

ing procedure

for fil ing monetary

claims against the state.” Hembree v. State , 925 S.W.2d 513, 516 (Tenn. 1996).

That statute, Tennessee Code Annotated section 9-8-307, begins by stating that the Commission has “exclusive jurisdiction to determine all monetary claims against

the state based on the acts o r om issions of [state employees] falling within one (1) or more of the following categor ies. ..” Tenn. Code Ann. § 9- 8-307(a)(1). O ne such catego

ry, which a

pplies here, is “[d]angerous conditions on state maintained highways.” Tenn. Code Ann. § 9-8-307(a)(1)(J). To maintain a suit based on this category, the claimant “must establish the foreseeability of the risk and notice given to the prop

er state officia

ls at a time

sufficiently prior to the injury for the state to have taken appropriate measures.” Tenn. Code Ann. § 9-8-307(a)(1 )(J). Also of rele vance to this disput

e is the following directive: “It is the intent of the general assembly that the jurisdiction of the claims commission be liberally

construed to

implement the remedial purposes of this legislation.” Tenn. Code Ann. § 9-8-307(a)(3).

Reading these provisions together, Northland argues that subject matter jurisdiction is clear. This case involves state employees’ negligent conduct r egarding a danger

ous condit

ion on a state maintained highway; thus, it fits wit hin one of the jurisdictional categories. Northland is seeking recovery from the state, based on its share of fault, which is a “monetary claim against the state.” Northland avers that while contribution and indemnity cla

ims are not specifically mentioned in the statute, they are no

netheless “monet

ary claims”

which are direc

tly connected to the underlying tort suit – and the statute refers to “all” monetary claims. Moreover, in case there is any doubt, the scope of jurisdiction should be “liberally construed.”

Given the interpretive principle governing sovereign immunity stated above, and the statutory

construction argument on which Northland relies, resolution of this dispute turns

on the inference to be drawn from statutory silence. Northland ar gues that since the statute refers
to “all” monetary

claims there was

no need – indeed it

would be redundant – to mention contribution and indemnity. Th

e State responds th

at since this is a que

stion of sovereig

n immunity th

is Cou rt should presume that the le

gislature must

nothave intended to c

onsent to contribut

ion and indemnity suits; if the legislature had consented it would have said so in the text of section 9-8-307.

We find that the Commission does not have subject matter jurisdiction to hear contribution and indemnity

claims. The statute ’s liberal constr uction mandate al

lows a court to more

broadly and expansively

interpret the co

ncepts and provis

ions within its

text. For instance

, in Hembree v. State this Court wa s presente d with the question of how to interpret one of the jurisdictional categories1 To avoid confusion, we note that t

he contributi

on and indemnity c

laims at i ssue in th

is case were i

nitiate d prior
to our decision in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 19 92). H owever, because of our resolution o f the jurisdictio nal issu e presented here, it is unnecessary for us to determine how comparative fault principl es affect the availabili

ty of contr

ibution and in

demnity in t

his case.

-4- listed in section 9-8-307, specifically, the c ategory allowing suits against the state involving “negligent

care, custody and control of persons.” Hembree , 925 S.W.2d at 516 (int e rpreting the provision that is now codified at 9-8-307(a)(1)(E)). The state contended that a claim for “neg ligent release” of a patient from a state controlled m

ental health instit

ute did not fall into

this category. Id. The Court disagreed, holding that “ca re, custody

and control”

jurisdiction should be read to cover the state’s decision to release a patient from custody. Id. at 51 7-18. Hembree illustrates that the ju risdictional categories in section 9-8-307 should not be interpreted narrowly. A liberal construction of

an existing category, however, is a different proposition than a construction creating

a new cat egor y.

Northland argues th at contribution and indemnity claims are intimately related to the underlying

tort suit which, in this case, the Commission would have had subject matter jurisdiction
to hear. Thus, the category of “dang erous highway condition” may be read to include Northland’s claim against the State; no new jurisdiction al cate gory need be created. While contribution and indemnity

claims are, of c

ourse, lin ked to the underlying tort, they are separate and independent remedies under Tennessee law

. See But ler v. Trentham , 224 Tenn. 528, 534, 458 S.W.2d 13, 15 (1970) (“[W]here [contribution] is allowed between joint tortfeasors, it does not sound in and is not based on tort. It rests rather on principles of equity and natura l justice.”); Uniform Contribution Among Tort-Feasors Act, Tenn. Code Ann. § 29-11-101, et seq. (providing a contribution remedy that is distinct from the underlying tort remedy). A plaintiff’s suit against an alleged tortfeasor seeks redres s f or harm caused by that tortfeasor, in this case because of the tortfeasor’s negligence. Contribution and indemnity , however, are

remedies a

party seeks after having been found liable for tortious conduct, design

ed to recover a

ll or part of the los s from a nother re sponsible party. See Owens v. Truckstops of America
, 915 S.W.2d 420, 433 (Tenn. 1996) (“[C]ontribution shifts part of the loss from one part

y to another

[and] traditional impl

ied indemnity

shifts the entire l

oss from the party found liable to a

party who should bear the entire loss.”). 1 Thus, although Northland’s desired contribution suit against the St ate is related to

Mr. Sheppard’s, Mr. McGuire’s and the estate of Mr. Deskovic’s suit ag

ainst Mr. McDonald

and Walnut, Inc ., the two suits are nonetheless distin

ct.

Recognition that contribution and indemnity claims are not merely ex pansions of the underlying

tort suit on which they are based, but rather different remedies whic h exist for different
purposes, resolves this dispu te. As noted, leg

islation authorizing

suits against

the state must provide for the state’s consent in “plain, clear, and unmistakable” terms. Cook , 171 Tenn. at 611, 106 S.W.2d at 861. No such clarity is present in

section 9-8-307. A decision from this Court interpreting this statute to

include Northland’s claim within the Commission’s subject matter jur isdiction would be tantamount to judici

ally crea ting a waiver of

sovereign immuni

t y to which the State has not actually consented. We decline to adopt this interpretation and therefore affirm the Court of Appeals.-5- CONCLUSION Based on our interpretation of Tennessee Code Annotated section 9-8-307, we hold that the Tennessee Claims Commissio n does not have subject matter jurisdiction to hear contribution and indemnity claims. The decision of the Court of Appeals dismissing Northland’s claim against the State is affirmed.

FRANK F. DROWOTA , III , JUSTICE