Cunningham v. Shelton Security Services, Inc. , 1997 Tenn. LEXIS 630 ( 1997 )

IN THE SUPREME COURT OF TENNESSEE FILED
AT NASHVILLE
December 22, 1997
Cecil W. Crowson
Appellate Court Clerk
WILLIAM E. CUNNINGHAM, ) FOR PUBLICATION
Administrator of the Estate of )
ROBERT W. CUNNINGHAM, SR., and )
ROBERT W. CUNNINGHAM, JR., ) FILED: DECEMBER 22, 1997
)
Plaintiffs/Petitioners/ )
Appellants ) DAVIDSON COUNTY
)
v. )
) HON. CAROL MCCOY,
SHELTON SECURITY SERVICES, INC., ) CHANCELLOR
and EMPLOYERS INSURANCE OF WAUSAU, )
)
Defendants/Respondents/ ) NO. 01-S-01-9701-CH-00011
Appellees )
For Appellants: For Appellees:
TERRY R. CLAYTON H. MICHAEL BENNETT
Nashville, TN Nashville, TN
OPINION
REVERSED; REMANDED BIRCH, J.
In this worker’s compensation case, the trial court
granted the deceased employee’s representative (“petitioner”)
permission to file an application for interlocutory appeal under
Tenn. R. App. P. 9. We granted the application in order to
determine whether the trial court erred in ruling that the remains
of the employee be exhumed and autopsied. Upon careful review of
the record, we find that the employer, Shelton Security Service,
Inc., and its insurance carrier, Employers Insurance of Wausau
(“respondents”), failed to make a timely request for an autopsy
after obtaining reasonable notice of its necessity. Thus, they are
not entitled to exhume and autopsy the remains of the deceased
employee.
I
The record in this case includes the pleadings, the
deposition and affidavits of medical experts, the death
certificate, and the trial court’s findings entered November 19,
1996. Pertinent portions thereof indicate that Robert
W. Cunningham, Sr., the employee, worked as a security guard for
the respondent-employer, Shelton Security Services, Inc. The
employee was assigned to provide security in and about the Little
Barn, a Nashville convenience market.
While performing his duties at the market on March 5,
1992, the employee became involved in a confrontation with either
two or three patrons whom he had asked to leave the market
premises. The confrontation, though verbal only, was apparently a
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heated one. Several minutes after this incident, the employee was
found unconscious in the front seat of his car. Emergency medical
personnel responded to the scene, and he was transported to the
hospital by ambulance. All efforts to revive him failed; he was
pronounced “dead on arrival” at the hospital. The medical examiner
certified the cause of death as “arteriosclerotic cardiovascular
disease.” The death certificate, dated April 17, 1992, indicates
that no autopsy was performed.
II
The procedural history of this case is central to our
discussion. On August 31, 1995, a petition for benefits claimed
under worker’s compensation provisions was filed by the
petitioner.1 In an answer filed October 4, 1995, the respondents
denied that any injury arose out of or in the course of the
employment. Also denied was the allegation that the employee
suffered an accidental injury or occupational disease. Moreover,
the respondents stated that they did not know what caused the
employee’s death.
Counsel for the petitioner took the deposition of Melvin
Lightford, M.D., on June 27, 1996. Lightford opined, inter alia,
that the cause of death as certified by the medical examiner is not
always conclusive. Rather, because arteriosclerotic cardiovascular
disease is a common cause of death, it is routinely listed on the
1
A similar petition was filed in February 1993, and an order of
non-suit was entered January 31, 1995.
3
death certificate as the cause of death in cases where no autopsy
has been performed.
Also included in the record are the affidavits of Robert
C. Ripley, M.D., and Charles Harlan, M.D., both filed on October
28, 1996. Ripley and Harlan, and Lightford as well, stated
essentially that the cause of the employee’s death could not be
ascertained with “absolute certainty” unless an autopsy were to be
performed.2
On October 28, 1996, the respondents filed a motion in
the trial court for an order to exhume and autopsy the employee’s
remains on the grounds that the cause of death could not otherwise
be ascertained. The trial court found that the respondents
acquired knowledge of the necessity for an autopsy during
Lightford’s deposition of June 27, 1996. The trial court further
found that the cause of death was obscure or in dispute and that
the respondents had requested the autopsy within a reasonable time
after Lightford’s deposition.
The petitioner requested permission under Tenn. R. App.
P. 9 for an interlocutory appeal to review the challenged order on
grounds that no review could otherwise be obtainable after entry of
a final judgment. The trial court permitted the petitioner to file
2
However, we note that absolute certainty is not required to
prove cause of death in a worker’s compensation case. Reeser v.
Yellow Freight System, Inc., 938 S.W.2d 690, 692 (Tenn. 1997). At
this point, we make no determination as to whether there is
sufficient evidence from which the trial court may determine cause
of death.
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an application for permission to appeal to this Court, and we
granted the interlocutory appeal. However, before oral argument
could be scheduled, the parties requested leave to submit the cause
on briefs; we granted that request also.
Accordingly, we review the trial court’s ruling that the
respondents are entitled to the exhumation and autopsy of the
employee’s remains. Because this issue is a question of law, our
review is de novo with no presumption of correctness. Ridings v.
Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
III
Court-ordered autopsy in worker’s compensation cases is
governed by both statute and case law. The controlling statute,
Tenn. Code Ann. § 50-6-204(e)(Supp. 1996), provides as follows:
In all death claims where the cause
of death is obscure or is disputed,
any interested party may require an
autopsy, the cost of which is to be
borne by the party demanding the
same.
Thus, by statute, the party requesting the autopsy must
demonstrate that the cause of death “is obscure or is disputed.”
In their answer to the petition for worker’s compensation benefits,
the respondents denied that the employee suffered an accidental
injury or occupational disease and averred that they did not know
what caused the employee’s death. Thus, cause of death has
apparently been a matter of dispute since the filing of the
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petition, and there can be no serious challenge to the trial
court’s finding in this regard.
Beyond those imposed by statute, two requirements are
imposed by judicial interpretation. Chief Justice Green, writing
for the Court in Battle Creek Coal and Coke Co. v. Martin, 155
Tenn. 34, 290 S.W. 18 (1927), construed the subject statute as
being analogous to the provisions for an autopsy in insurance
contracts which are uniformly sustained if the demand for the
autopsy was made within a reasonable time. Id. at 19. Thus arose
the “timeliness” requirement. Timeliness requires that the party
requesting the autopsy do so within a reasonable length of time
after having knowledge of its necessity. The trial judge should
consider “the time elapsing prior to a motion or other proceedings
filed in court demanding an autopsy and the time the party so
demanding an autopsy had knowledge [or] reasonably could have had
knowledge such autopsy was needed to determine the cause of death.”
Robinson v. Nashville Mach. Co., 503 S.W.2d 90, 93 (Tenn. 1973).
The second common law requirement for exhumation and
autopsy under Tenn. Code Ann. § 50-6-204 was articulated in
Robinson. According to Robinson, the demand for an autopsy must be
reasonable as to the occasion for its exercise. The reasonableness
of the occasion of its exercise is determined by the presence or
absence of other credible evidence, absent an autopsy, upon which
the court can determine cause of death. Id.
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We do not quibble with the trial court’s finding of fact
that the respondents’ first acquired “knowledge of the need for an
autopsy” during Lightford’s deposition of June 27, 1996. That
finding notwithstanding, there is a distinct difference between
actual “knowledge” as found by the trial court and reasonable
notice. Under Robinson, the time when the respondents reasonably
could have had knowledge of the need for an autopsy, i.e., the time
when they acquired reasonable notice, must also be considered.
We find that the respondents had reasonable notice from
the pleadings that causation would be an issue--perhaps the only
seriously contested issue. Once the respondents took a position
regarding causation in their answer filed October 4, 1995, it
became their responsibility to develop the issue promptly.
Especially is this true in light of the cause of death listed on
the certificate, which was available to all parties as early as
April 17, 1992. The respondents filed the autopsy request on
October 28, 1996--over a year after they filed their answer, and
approximately four and a half years after the death certificate
became available. This delay is longer than the delay in previous
worker’s compensation cases in which a request for an autopsy was
found untimely. Huey Bros. Lumber Co. v. Anderson, 519 S.W.2d 588,
590 (Tenn. 1975) (eight month delay unreasonable); Robinson, 503
S.W.2d at 93 (nine month delay unreasonable). Therefore, within
the context of the facts and circumstances here presented, we find
that the respondents’ request for exhumation and autopsy was not
timely made.
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Because we find the respondents’ unreasonable delay
dispositive of the issue before us, we find it unnecessary to
discuss the “occasion” requirement articulated in Robinson.
It results that the order of exhumation and autopsy is
vacated; the cause is remanded to the trial court for proceedings
consistent with this opinion.
Costs of this cause are taxed against the respondents,
for which execution may issue if necessary.
_______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.
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