# FILED
June 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION ) Appellee ) FILED: JUNE 15, 1998 ) V. ) MADISON COUNTY ) ) HON. FRANKLIN MURCHISON, MICHAEL RALPH ALFORD ) JUDGE ) Appellant ) NO. 02-S-01-9704-CC-00030

For Appellant: For Appellee: DAVID L. HAMBLEN JOHN KNOX WALKUP Union City, Tennessee Attorney General and Reporter MICHAEL E. MOORE Solicitor General GORDON W. SMITH Associate Solicitor General DEBORAH A. TULLIS Assistant Attorney General Nashville, Tennessee JAMES G. WOODALL District Attorney General DONALD H. ALLEN Assistant District Attorney Jackson, Tennessee

OPINION

REVERSED AND REMANDED BIRCH, J.1 (a) A person commits aggravated assault who: (1) Commits an assault as defined in § 39-13-101, and: (A) Causes serious bodily injury to another; . . . . Tenn. Code Ann. § 39-13-102 (1991). (a) A person commits assault who: (1) Intentionally, knowingly or recklessly causes bodily injury to another; . . . . Tenn. Code Ann. § 39-13-101 (1991). 2 The Circuit Court for Madison County entered judgment on
a jury ve rdict convicting Michael Ralph Alford, the appellant, of aggravated assault 1 for stabbing Ricky Murchison with the sharp end of a four-waytire tool and inflicting a wound approximately five to sixinches deep. Following a hearing, the trial c ourt impos ed a sentence of four years in the Department of Correction. Except for sixtydays to be serve d in the county jail, the sentence was suspended upon the following conditions:

(1) Three years and ten months of supervised probation; (2) Performance of two hundred hours of community service; (3) Payment within ninety days of $4,791.01 as restitution to the victim; and (4) Payment of $68,589.09 as restitution to the insurance carrier for the medical expenses it paid under the victim’s insurance policy. The Court of Criminal Appeals affirmed the trial court’s judgment, and we granted Alford’s application for review in order to address an issue of first i mpression in this state: whether a hospitalizatio n in surance carrier can be a “victim” and thereby
r eceive restitution from a defendant, as ordered by a sentenc in g3

court pursuant to Tenn. Code Ann. § 40-35-304(a) (1990). Because we find that the insurance carrier (insurer) was not a “victim” under the circumstances here presented, we vacate that portion of the order requiring payment of $68,589.09 to the insurer and remand the cause for a new sentencing hearing.

I

As a general rule, courts exercising criminal jurisdiction
are with out in herent power or authority to order payment of restitutionexcept as is derived from legislative enactment. State
v. D avis , 940 S.W.2d 558, 562 (Tenn. 1997). Our General Assembly has enacted legislation authorizing trial courts in criminal cases to order a defendant to pay restitution to the victim as a condition of probation. This authorization is contained in Tenn. Code Ann. § 40-35-304(a) (1990), which provides:

Asentencing court may direct a defendant to make restitution to the victim of the offense as a condition of probation. Thus, whether an insure r m ay be a “victim” and thereby receive restitution under Tenn. Code Ann. § 40-35-304 depends upon the meaning of “victim” as used in tha t s tatute. Because the statute does not define “victim,” we must rely on principles of statutoryconstruction to ascertain its meaning. Construction of a statute is a question of law which we review de novo , with no presumption of correctness. Roseman v. Roseman , 890 S.W.2d 27, 29 (Tenn. 1994).4 Inmatters of statutory construction, our paramount obligatio ns are to ascertain and give effect to the legislature’s intent, without unduly restricting or expanding a statute’s coverage beyond its intended scope. Carter v. State , 952 S.W.2d 417, 419 (Tenn. 1997); Wilson v. Johnson County , 879 S.W.2d 807, 809 (Tenn. 1994) (citing State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993)). Legislative intent is to be ascertained primarily from the natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the meaning of the language. Carter , 952 S.W.2d at 419 (citing National Gas Distributors, Inc. v. State , 804 S.W.2d 66, 67 (Tenn. 1991)). The component parts of a statute should be construed, if possible, so that the parts are consistent and reasonable. Cohen v. Cohen , 937 S.W.2d 823, 827 (Tenn. 1996).

Accordingly, we turnfirst to the language of the statute for guidance: (b) Whenever . . . the victimof

the offense or the district attorney general requests, the court shall order the presentence service officer to include in the presentence report documentationregarding the nature and amount of the victim’s pecuniary loss. (c) The court shall specify at the time of the sentencing hearing the amount and time of payment or other restitution to the victim

. . . .

. . . . (e) For the purposes of this section, “pecuniary loss” means: (1) All special damages, but not general damages, . . .5 (2) Reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense;

. . . .
Tenn. Code Ann. § 40-35-304 (1990) (emphasis added). Additionally, the restitution statute was amended in 1996 to include the following pertinent language:

(3) If the court sentences a defendant to payment of restitution and believes that payment to more thanone (1) victim is proper, the court shall determine the pecuniary loss of each victimas provided in this section and shall order such amount of restitution to each such victim ; (4) If, as a result of the defendant’s criminal conduct, the victim or victims of the offense are dead at the time of sentencing, the court may sentence the defendant to payrestitution to the victim’s or victims’ next-of-kin ; and (5) Nothing in Acts 1996, ch. 699, § 39-11-118, § 40-35-104(c)(2) or this subsectionshall be construed to prohibit or delay a victimfrom applying for and receiving any compensation to which such victim is entitled under the Criminal Injuries CompensationAct, compiled in title 29, chapter 13. If the court orders the defendant to pay restitution pursuant to Acts 1996, ch. 699, § 39- 11-118, § 40-35-104(c)(2) or this subsection, the state shall have a subrogationinterest in such restitutionpayments for the full amount paid the victim under the Criminal Injuries Compensation Act.

Tenn. Code Ann. § 40-35-304(g)(3)-(5)(1997)(emphasis added). In the context of the above-quoted language, it is apparent that the word “victim” refers to the in dividu al or individuals against whom the2 Representative Roy Herron, 76th Legislative District. 6 offense was actually committed. Nothing in the statute supports a broader application.

Additionally, a victim’s insurer is not within the natural and ordinary meaning of “victim.” This is true because an insurer’s payment of medical or other expenses is made pursuant to a contractual obl igat ion; thus, the insurer does not suffer the unexpected harm that the actual victim suffers. See Hewitt v. State , 936 P.2d 330, 332 (Nev. 1997). Rather, an insurer contracts to accept the risk that claims will be made under the contract of insurance. Therefore, the guidance offered from the language of the statute is that the legislature did not intend “victim” to apply to insurers in this context.

Our analysis does not end here, however. When the language of a statute does not yield a clear interpretation, the court may examine the legislative history for a dditional interpretive guidance. Carter , 952 S.W.2d at 419. We examined the legislative history of Tenn. Code Ann. § 40-35-304 and found no relevant discussion within the history of the statute’s enactment in 1989. During a discussion of the 1996 amendment to Tenn. Code Ann. § 40-35-304, only one relevant statement was made, albeit not in the context of the issue he re presented. A member of the General Assembly 2 stated that the victims to which the statute refers would include “the immediate members of the family who had bee n out the med ical expenses, and who had been out the counseling expenses.” Tennessee General Assembly, House Tape No. 1, 99thG.A., 2d Sess. &3 Courts of other states have addressed this issue, and their

holdings vary depending upon the language of the relevant statute. Vermont’s restitution provisions are similar to ours, referring to “the victim” without actuallydefining the word. 13 Vt. Stat. Ann. § 7043 (Supp. 1997); 28 Vt. Stat. Ann. § 252(b)(1986 & Supp. 1997). The Supreme Court of Vermont concluded that the statutory language does not support the inclusion of insurers in the meaning of “victim.” State v. Webb , 559 A.2d 658, 661 (Vt. 1989); see also , e.g. , State v. Gardiner , 898 P.2d 615, 624 (Idaho Ct. App. 1995) (superseded by statute); Hewitt , 936 P.2d at 332; State v. Fryer , 496 N.W.2d 54, 56 (S.D. 1993)(superseded by statute). But see , State v. Blanton , 844 P.2d 1167, 1170 (Ariz. Ct. App. 1992); State v. Brooks , 862 P.2d 57, 64 (N.M. Ct. App. 1993); People v. Chery , 511 N.Y.S.2d 88, 89 (N.Y. App. Div. 1987); State v. Stayer , 706 P.2d 611, 613 (Utah 1985). 7 1st Extraordinary Sess. (February 7, 1996). This statement, combined with t he absence of any discussion concerning whether an insurer may be a “victim” under Tenn. Code Ann. § 40-35-403, leads us to conclude that the legislature probably never considered this issue.

Thus, in considering both the language and the legislative history of the restitution statute, we conclude that the Tennessee Legislature neither envisioned nor intended restitution to apply to insurers which pay claims made under an insurance contract. Had the leg islature intended such application, it could have explici tl y provided for it. As previously stated, this Court cannot expand the scope of a statute to create results not intended by the legislature. Moreover, we must include in our analysis the rule of statutoryconstruction which requi res t hat criminal statutes be strictlyconstr ued i n favor of the defendant. State v. Odom , 928 S.W.2d 18, 30 (Tenn. 1996). Under the circumstances presented, then, the insurer is not a “victim” for the purposes of Tennessee’s restitution provisions. 38 The State asserts that insurers should be awarded restitution under a subrogation theory. As subrogees, they argue, insurers have th e same right to claim restitution in criminal proceedings as the victims whom they have already paid. This Court, however, does not have authority to apply the doctrine of subrogation. The authority to award all forms of re stitut ion, whether by subrogation or any other pro cedura l mechanism, must be granted to the courts by statute. As we have already concluded, no suchautho rityhas been granted. See Davis , 940 S.W.2d at 562; State v. Gardiner , 898 P.2d 615, 625 (Idaho App. Ct. 1995) (superseded by statute).

Insum, the victim’s insurer cannot be awarded restitution under Tenn. Code Ann. § 40-35-304 because the s tatute does not so pro vide. Accordingly, the Court of Criminal Appeals is rever sed , and that portion of the judgment requiring payment of $68,589.09 to the insurance carrier is vacated. Inas much as we have vacated an element of the appellant’s sentence, we remand the cause to the trial court for a new sentencing hearing. Costs of this cause are taxed against the State, for which execution may issue if necessary.

______________________________ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Holder, JJ. Reid, S.J.