### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ASSIGNED O

N BRIEFS JUL

Y 11, 2001 LINDSAY TAY

LOR, RACHE

L TAYLOR AN

D BRADFORD

TAYLOR v. AL BEARD AND SOUTHEASTERN MOTOR FREIGHT COMPANY

Direct Appeal from the Circuit Court for Shelby County No. 84505 T.D.; The Honorable Robert L. Childers, Judge

No. W2001-00347-COA-R3-CV - Filed November 5, 2001

This appeal involves a

grant of su

mmary ju dgment, which dismissed loss of parental consortium claims brought by the children of a parent injured in an automobile accident. The children seek review of existing Tennessee prec edent that fails to

recognize loss

of parental consortium causes of action resul ting from the per sonal injury

of a parent. For

the following re

asons, we affir

m t h e decision of the trial court and decline to create a new cause of action.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. Larry E. Parrish, Memphis , TN, for Appella nts Tim Wade Hellen, Memphis, TN, for Appellees
OPINION Facts and Procedural History
On October 17, 1995, Al Beard collided with another vehi

cle while opera

ting a truck for

his employer, Southeastern Motor Fre i ght Company, Inc. (Al Bear d and Southeastern Motor Freight Com pan y, Inc. will her

einafter be join

tly referr ed to as “Appelle

es.”) The collisi

on result e d in an impact with a third ve h icle occupied by Pamela Taylor and her daughter, Lindsay Ta ylor. The Taylor’svehicle, in turn, struck a fourth vehicle and exited the roadway. Lindsay and Pamela Tay lor suffered injuries in the accident.
The procedural bac

kground of this

case is somewhat peculiar. After negotiations, Appellees and Lindsay Tay

lor filed a Joint Petition for Approval of Minor’s Settlement dated January 17, 1997-2-

with the court, se eking ratification of a settlement agreement reached betwee n Appellees and L

indsa y Taylor. However, approximately one yea r later, before a settlement had been appr oved , a First Amendment

to Join t P etition for Approval of Minor’s Settlement (“Amendment”) was filed by Lindsay Tay

lor. The Amendment substantially altered the course of litigation. Although Lindsay Tay

lor was the only plaintiff in the original petition, the A mend ment sought to add several ne

w parties to

the litigation including Lindsay Tay lor’s siblings, Rachel Taylor and Brad for d Ta ylor ( Lin dsa y, Rachel and Bradford Taylor will hereinafter be jointly referred to as “Appellants.”) The Amendment als o sought to renam

e the original pe

tition “Compla

i nt for Personal Injury and Loss of Services” and demande d a jury. Further, consistent with the new name, the Amendment

added new causes of action. The added cause of action at issue in this appeal concerns consortiumdamages; the Appellants demanded damages for loss of consortium resulting from the personal injuries suffered by their mother, Pamela Tay lor, in the accident. Appellees filed a motion to quash the Amendment and dismiss the original petition. After the court heard arguments on the matter, the court entered an Order Substituting Complaint for Joint Petition. Pursuant t o the court’s order, the original petition was deemed dismissed with the Amendment

taking its place. Further, the court ordered that the Amendment should be considered a complaint as opposed to part of the original joint petition. Appellees filed a

n answer, a motion

to dismis s the claim s of Rachel Taylor and Bradford Taylor, and a motion for sum mary judgm

ent as to the claims of all Ap

pellants for loss

of consortium stemming from their mother’s personal injuries. The court granted Appellees’ motion for summary judgment and the case proceeded to trial. A jury returned a ve rdict in favor of Lindsay Tay lor and awarded her $411,320.00 on the remaining claims.
O n appeal, A ppellants allege that the trial court erred in granting Appellee’s motion for summary judgment, which dismissed Appellants’ claims for loss of parental consor

tium. This Court has been asked to determine whether a claim for

loss of consortium brought by a child for personal injuries to the child’s parent should be recognized under Tennessee law. Appellants argue that the recent evol ution of policies guiding Tennessee law reflects a need for this Court to extend consortiumdamages to the children of parents who suffer

personal injury. We disagree and, for the following reasons, affirm the judgment below.
Standard of Review Summary ju dgment is approp riate if the movan

t demonstrates tha

t no genuine issue

s o f material fact exi st and t hat he is entitled to a judgment as a matter of law. See T ENN
. R. C IV
. P. 56.03. We must take the strongest view of the evidence in favor of the nonmoving party , allowing all reasonable inferences i n his favor a nd discardi ng a ll count ervailing evidence. See Shadrick v. Coker , 9 63 S.W.2d 726, 731 (T enn. 1998) ( citing Byrd v. Ha ll , 847 S.W.2d 208, 210-11 (Tenn. 199 3)). With regard to questions of law, we review the record de novo with no presumpt ion o f correctness

of the judgment below. See T ENN
. R. A PP
. P. 13(d); Bain v. Wells , 936 S.W.2d 618, 6221 Appellan ts asserts t hat only 16 st

ates allow cl

aims for loss

of parental

consortium in personal injury actions. -3- (Tenn. 1997). Because this appeal involves only an issue of law, we will conduct a de novo review of the issue set fo

rth with no presumpt

ion of correctne

ss. Law and Analysis
T his Court has previously addressed the issue of whether a cause of a ction for l oss o f consortiumexists for children whose parents are injured by the tortious acts of a third party. I n Still v. Baptist Hospital , 755 S.W.2d 807, 808 (Tenn. Ct. App. 1988), this Court held that claims for loss of parental consortium are, and always have been, unknow n to Tennessee’s common law. Acco rdi ngly, for this Court to hold that such a cause

of action now exists,

we would be forc

ed to overrule our decision in Stilland create the c ause of action ou

rselves.
Because a new cause of action has been requested , our analy

sis must begin

with a discussion of this Court’s role in defining the pub lic polic y of Tennessee. We acknowledge that a blind following of arcane principles of common law simply because of stare decisiss hould not be considered

the mission of this

Court. However, w

e must also acknow

ledge that Appe

llants’ request is not aimed at remov ing obsolete law from our precedent or refining existing principles of law. Rather, Appellants seek

the judicial creation of new law through a declaration of public policy not yet asserted by our Gene

ral Assembly.
In Smith v. Gore , 728 S.W. 2d 738, 747 (Tenn. 1987), the Tennessee Supreme Court recognized

the difference between mere development of

the common law and “positively declaring the public policy of the state.” The distinction is even more apparen t when the Court must “determine which of severa l competing public

polic ie s represents the most compelling and controllin g public policy for this State.” Id. When such indefiniteness surrounds an issue and proponents

rest upon public policy in asking this Court to define the law, we must be aware of possible “usurpation of the powers of the legislature.” Id. (quoting Cavender v. Hew itt , 239 S.W. 767, 768 (Tenn. 1921)).
This Court, in Still , followed these p rinciples when re

fusing to create a common

law claim for loss of parental cons

ortium. We stated that defe rence to the leg

islature is more lik

ely approp

riate where far-re

aching consequ

ences would resu

lt from the creation of new law. Still , 755 S.W.2d at 812. We find no reason to now change our stance. The policies suggested by Appellan

ts still remain highly debatable 1 and our decision to adopt them as the public policy of this State would indeed have considerable consequences. Appellants

argue that two decisions of the Tennessee S upreme Court handed down since Still have granted this Court the prerogative to change the i ndigenous common law of Tennessee. However, we find this argument to be without merit. In both cases cited by Appellants, Hanover v. Ruch , 809 S.W.2d 893 (Tenn. 1991) and Dupuis v. Ha nd , 814 S.W.2d 340 (Tenn. 1991), our Supreme Court merely followed the pronouncements of public policy as stated by our Gen eral-4-

Ass emb ly. Neither case su ggests that the

intermediate app

ellate courts in thi s state have the aut hor ity t o cre ate bran d ne w cau ses of ac tio n on grou nds of p ubl ic p oli cy. Both Hanover

and Dupuis involved common law torts that the general assembly had chosen to legislatively abolish. However, because of the constitutional limitations placed upon the general ass emb ly, claims filed before the effective date of the legislation were not affec ted. When cases filed before the effectivedate

reached our Supreme Court, the court decided that the laws passed by the general assembly co

uld properly

be considered th

e public policy

of this State and ch

ose to judicially extinguish

previous prece

dent allowing the

claims. Thus, these case s in no way g

rant this Court a license to create new law. Appellants

further argue that

the TennesseeSupreme Court in Jordan v. Baptist Three Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999) opened the d

oor for this Court to

examin e the need for a cause of action for loss of parental consortium where

a personal injury

has occurred. We

also find this argument to be without meri t. Jordan de alt with an expansion of consortium damages under Tennessee’s wrongful death statute, not under the common la

w. However, in

dicta, the court stated, “We express no opinion a

s to whether the los s of parental consortium may be recovered in personal injury actions in

which the parent or parents survive. That issue will be addressed in an a

ppropriate case.” Id. 595-96. We fail to se e how such dicta c

reates the autho

rity for this intermediate app

ellate court to create new law. Believing our role to be limited in this cause, we also fail to see the utility in reassessing the policy considerations we previously contemplated in Still

. We stand by our previous assessment in again refusing to create a new cause of action for loss of parental consortium in personal injury actions.
Conclusion
For all of the aforementioned reasons, we affirm the jud gment of the trial court. Costs on appeal are taxed to Appe ll ants, Lindsay Tay lor, Rachel Taylor and Bradford Tay lor, for which exe cut ion may i ssu e if nece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE