# FILED
September 14, 1998 Cecil W. Crowson Appellate Court Clerk SCOTT GRAHAM HARTMAN, KAY ) HARTMAN, his mothe

r and duly ) qualified conservat

or and guardian, and ) CLEON HARTMAN, ) ) Tennessee Claims Commission Claimants/Appellant

s, ) Middle Division

) No. 85209 VS. ) ) Appeal No. THE UNIVERSITY OF TENNE SSEE and ) 01A01-9804-BC-00196 THE STATE OF TENNESSEE, ) ) Defendants/Appelle

es. )
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APPEAL FROM THE TENNESS EE CLAIMS COMMISSION AT NASHVILLE, TENNESSEE HONORABLE W. R. BAKER, COMMISSIONER, MIDD LE DIVISION

Mr. Paul S. Davidson 424 Church Street, Suite 2800 Nashville, Tennessee 37219 ATTORNEY FOR CLAIMANTS/APPELLANTS
Mr. Ronald C. Leadbetter Associate General Counsel The University of Tennessee 810 Andy Holt Tower Knoxville, Tennessee 37996-0184 ATTORNEYS FOR DEFENDANTS/APPELLANTS

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCURS: BEN H. CANTRELL, JUDGE WILLIAM B. CAIN, JUDGE-2-

SCOTT GRAHM HARTMAN, KAY ) HARTMAN, his mothe

r and duly ) qualified conservat

or and guardian, and ) CLEON HARTMAN, ) ) Tennessee Claims Commission Claimants/Appellant

s, ) Middle Division

) No. 85209 VS. ) ) Appeal No. THE UNIVERSITY OF TENNE SSEE and ) 01A01-9804-BC-00196 THE STATE OF TENNESSEE, ) ) Defendants/Appelle

es. ) 

## O P I N I O N
The captioned claima

nts have appeale

d from the decisio

n of the Tennesse

e Claims Commission denying their cla im against the State

and the University

of Te nnessee for the catastrophic injury of a student athlete while engaged in athletic activity.

The student w as the beneficiary of a scholarship con

tract binding the U

niversity to furnish him treatment for

injuries receive d during athletic c ompetition. The Uni

versity purchased

from National Union Insurance Company, a policy of

insurance insuri

ng its liability under scholarship contracts to the extent of the coverage provided by the policy. The father of the student wa s an e mployee of BellSouth Corporation which

provided for the f

amilies of its employees health

care insurance

within designated l

imits.

With the approval of the U

niversity of Tenne

ssee, the student t

raveled to Lexington, Ky., t o participa te in a regional track and field competition sponsored and controlled by the University

of Kentucky. While performing “warming up” exercises in the space assigned to

him by the University of Kentucky, the student was struck in the head by a heavy missle thrown by another student who was pa

rticipating in the s

ameregional competition. His serious injury w ill require custodial care f

or the remainder

of his life. The Un

iversity of Tenne

ssee has agree

d to furnish all needed futurecar e. The present claim seeks payment of expenses of care and treatment already furnished

without any offer of care or payment therefor by the University of-3-

Tennessee. Claimants have neither paid for nor assumed liability for any care or treatment. So fa r as this record sho

ws, all of said exp

enses have been

paid by the insurer

of Be llSout h Corporation and National Union Insurance Co.
Specifica lly, t he BellSouth insurer paid $1,223,513. National Union reimbursed the BellSouth insurer to

the extent of $196 ,849 and has paid $27,822 direct to care furnishers. As stated, the parents and the University of Tennessee have paid nothing.

Neither the BellSouth insurer nor Nationa l Union In surance Co. is a pa rty to this proceeding. However, appellants insist that they have a right to sue for the benefit of the insurers which paid the expenses. The Commission held otherwise.
Also, the claimants soug

ht damages for pa

in, suffering and

disability of the student and loss of his society andservices resulting from the negligence of the University in supervising and protecting the student from injury. The University offered evidence disproving such negligence, and the Commission held for the University on this issue.
On appeal, the cl

aimants present o

nly one issue, whic

h is: I. Whether

the Tennessee Cl

a ims Commission’s Summary Ju dgment Order dismi ssing Appella

nts’ contractua

l claim was in contravention of the Tenne sse e Rules of Civil Procedur e a nd the Rules of the T ennessee Claims Commission, which both create a clear subrogation exception to the Real Party in Interest Rule. However, appellants

submit five distinct a

rguments in support

of their issue. Appellants do not challenge the ne

gative ruling upon t

heir negligence

claim.
First Argument : No presumption of Co rrectness
. Appellants

relyupon preliminary rulings of the Commission upon motions of the parties for partial summary judgm en ts, which have not h eretofore bee

n mentioned in this op

inion to simplify the narrative.-4- Appellants

filed a motion for a partial summary judgment requiring the University of Tennesseeto provide the medi cal treatment pr

omised in its s tudent athletic contract. The Commission sustained this motion, and the Univers ity of T ennessee agre ed to comply. This does not appear t

o be at issue on app

eal.
On September 29, 1 989, the Commission en tered an order c

oncluding as follow

s: Th e Commission also concludes that the contra c t providingfor

“medical attention” does not limit the manner in which the medical attention is provided. The Defendant has the option of

providing medical attention either by paying for third parties to provide it, or providing it itself or a combination of the two. This may work

a hardship upon the parentsof the injured Plaintiff if the State deems it necessary to provide this medi cal at tention at the medic al school in Memphis, East Tennessee State, or the University h ospital in Knoxville, butthis option is left to the State. The quality of the medical attention appropr ia te to the injured Plaintiff’s condition. Exotic or experimental treatment are not included, but the same may be

provided if the Sta

te desires. 13. In short, the Commission concludes (1) that the reasonable inte

rpretation of the

expression “medi

c a l attention due to athletic pa rticipation” oblig

ates the State to provide reasonabl e me dical treatment a ppropriate to Scot

t Hartman’s condition without limitation as to t im e or dollar limit. (2) If it were nec essary to resort to explanatory documents, the letter of Augu st 4, 1986 is the only

significant non-contractualdocument andit, in no way, suggests the contractual language is limited. (3) The law o f contracts, under these facts, does not permit resort to oral negotiations prior to en t ering the contract, nor to oral intimations of the interpretation of the contract g iven afte r th e injury, to interpret t he contract language. However, if they were referred to, either or both d

ecidedly favor the Plaintiffs’ interpretation of the contract. (4) The State, through the University

of Tennessee or otherwise, may provide the medical attention either (

a) in kind by taking over the care of Scott Hartman using State medical employees, or (b) the State may pay third part

ies to do this. Appellants’ brie

f states: In a separate civil action, Hartma n judicially enforced the Commission’s 1989 Order requiring theUniversity’s medical insurer to pay BellSouth (subrogee in part to H artman’ s contractual claims) $196,849.-5-

Appellants’ brief cites the final order of the Commission which states that the $196,849 payment was made but does not mention the separate suit. No other information is cited or found a

s to the parties or pr

oceedings in the se

parate suit.

Neither the Commission nor this Court can be expected to recognize as “the law of the case” a phantom separa

te suit without authe

ntic evidence of

the proceedin

gs and judgment therein.

Other

than stated above, the preliminary partial summary orders of the Commission have
no relation to the correctness of the final order of the Coimmi

ssion upon the merit

s of appellants’ claim against the State of Tennessee and the University of Tennessee.
Second Argument : Doctrine of Subrogation
. Appellants

cite Dixon v. Morgan , 154 Tenn. 389, 285 S.W.2d 558 (1926) which has been carefully examined without disco very of any relevance to the facts and proceedings in the present
case. Dixon involved a series of real estate transactions. The person entitled to subrogation was
a partyto the case, and would have been a heavy loser if subrogation had not been granted..In the present case, th

e volunteer subro

gors are seeking

to recover in

their own names funds which may or may not be justly due a third party which is nota participant in this proceeding and the basis of whose rights is not in this record.
Moreover, the way is open for the third party s ubrogee to assert its rights, if any, in a separate claim to the Claims Commission.
No merit is found in appellants’ second argument.

Third Argument : No Loss to Claimants
.-6- Appellants’ do not argue that they have suffered loss by paying medical expenses. They argue that BellSouth’s insurer has suffered loss by paying same, and that said insurer has a right to “ste p into Hartman’s sh oes” to enforce

Hartman’s claim.

This argument ignor

es the le ga l reality that Hartman cannot establish a claim for medical expenses without proof of payment of
sameor liability

therefor. In Wimberly v. Ame rican Casualty Co ., Tenn. 1979, 584 S.W.2d 200, plaintiff suffered a fire loss and sued his insurer to

determine its subr

ogation rights aga

inst the
one who caused the fire. The facts and proceedings of that case distinguish it from the present
case.

In Amos v. Central Coal C o ., 38 Tenn. App. 626, 277 S.W.2d 457, a sublessee who made payment of sublessor’s obligation to prevent forfe it ure of the interest of both sublessor and sublessee was granted rights of subrogation to the extent

of payments so made. In the present case, the Hartmans’ have

made no payment, and the one who made the payment is not be

fore this Court.
Fourth Argument : Rules of Civil Procedure and of the Commission
. TRCP Rule 17.01 and Commiss ion Rule 0310-1-1- .17(1) do provide th at a subrogor may
sue in his own name for

the benefit

of the subrogee, but neither rule dispenses with proof of the claim which, in the present

case, includes documentation of the claim. This record contains no
ev idence of the insuring agreement upon which the subrogation claim is based. In Trave ler’ s Insurance Company v. Williams , Tenn. 1976, 541 S.W.2d 587, the opinion quotes the provisions of the policy regarding subrogation. The issue on appeal was the right of the attorney for the insured to collect a fee from the insurer.
Appellants cite an unpublished opinion of this Court wherein this Court stated:

The Church insured by Aetna was heavily damaged in a fire which occu

rred in 1992. Aetn

a paid the lo ss an d thereafter filed this action in

the name of the church to recoup its payment under

principles of subrogation. The complaint was filed on November

3, 1992, with the kno

wledge of all parties that it was a subrogation action. The case was fin ally s et fortrial on December 1, 1995 before a jury. On-7- Nove m ber

27, 1995, the trial court ordered that Aetna InsuranceCo. should be a named party since it was the real party in interest. Aetna objected to

its involuntarily role, asserting that the case had been pending for three and one-half years when, three days before trial, it was summarily added as a plaintiff. We granted a Rule 10 application to consider the propriety of this action.

- - - - The Rule clearly authorize s Aetna Insurance Compan y to bring an action in

the name of the pa

rty to whose rights

it is su brogat ed without being na med itself as a par

ty to this lawsuit. See Travelers Ins. Co. v. Williams , 541 S.W.2d 587, 590 (Tenn. 1976).
In the present case, nothing is found in the record to show that either insurer

brought this action in the name of the injured partie s to enforce subr

ogation rights and n

o evidence in this record supports the contract

ual right s of either insurer to be subrogated to the rights of the injured parties.
No merit is found in appellants’ fourth and last issue.
T.C.A. § 9-8-403(

a)(1) provides i

n pertinent part a

s follows: The de c isions of the individual commissioners, or, when rendered, decisions of the entire commission regarding claims on the regular docket may be appealed to the Tennessee Court o

f Appeals pursuant to Tennessee Rules of Appellate Procedure, except

that tax appeals s

hall go directly to the Tennessee Supreme Court and workers compensation cases shall be appealed pursuant to t he procedure for other worker’s compensation cases under § 50-6-225(e) - - - . The evidencehas been reviewed de nova pursuant to TRAP Rule 13. It does not prepon de rate against the factual findings of the commission and no error of lawis found in the conclusions of the commission.

No grounds are found for reversal or modifica tion of the orders of the Claims Commission which are affirmed. Costs of this appeal are taxed agains t the appellants. The cause is remande

d to the Commission for

any necessary f

urther proceed

ings.-8- AFFIRMED AND REMANDED.

_________________________________ HENRY F. TODD PR ESIDING JUDGE, MIDDLE SECTIO N

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIAM B. CAIN, JUDGE