Wayne Bailiff v. State ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 7, 2003 Session
WAYNE BAILIFF, ET AL. v. STATE OF TENNESSEE, ET AL.
Appeal from the Circuit Court for Davidson County
No. 01C-872 Thomas W. Brothers, Judge
and
Tennessee Claims Commission
No. 20101402
No. M2001-01936-COA-R3-CV - Filed May 14, 2003
In these consolidated appeals a wife appeals the order of the Tennessee Claims Commission
dismissing her claim for loss of consortium because it was not brought as a part of her husband’s
claim, and the husband and wife appeal the Davidson County Circuit Court’s denial of their motion
to amend to add the wife’s claim to the husband’s action against the State of Tennessee and other
defendants. We reverse the action of the Claims Commission and remand the wife’s claim to the
Circuit Court for trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court and Claims
Commission Reversed and Remanded
BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J. and
W. FRANK BROWN , III, SP . J., joined.
Russell Willis and William B. Hawkins, III, Nashville, Tennessee, for the appellants, Wayne and
Edna Bailiff.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mary M.
Bers, Senior Counsel, for the appellee, State of Tennessee.
OPINION
I.
Wayne Bailiff slipped and fell in a bathtub at Montgomery Bell State Park, and he filed a
claim with the Tennessee Claims Commission on April 1, 2000. On March 21, 2001, Mr. Bailiff
filed an action in the Circuit Court of Davidson County against four other defendants who had been
identified by the State as sharing the responsibility for the fall. On the same date Mr. Bailiff moved
the Claims Commission to transfer the claim to the Circuit Court pursuant to Tenn. Code Ann. §
9-8-404, so that all claims could be tried together.
Also, on the same date, Mrs. Bailiff filed a separate claim in the Claims Commission for loss
of consortium. The claim prayed for a consolidation with Mr. Bailiff’s claim and that they be
transferred together to the Circuit Court. The State filed a motion to dismiss on the ground that a
claim for consortium is derivative and cannot be filed separately from the injured spouse’s claim.
The Commissioner granted the motion to dismiss in an order entered on June 11, 2001. Mrs. Bailiff
filed a timely notice of appeal to the Court of Appeals.
The Claims Commission originally transferred Mr. Bailiff’s claim to the Circuit Court of
Dickson County. Subsequently the Dickson County Court transferred the claim to the Circuit Court
of Davidson County, and it was consolidated with the action against the other defendants. On
September 29, 2001, Mr. and Mrs. Bailiff moved to amend the complaint in the Circuit Court to add
a claim for loss of consortium on Mrs. Bailiff’s behalf. The State objected to the amendment on the
ground that exclusive jurisdiction over that question lay in the Court of Appeals since Mrs. Bailiff
had appealed the dismissal of her claim in the Claims Commission. The Circuit Court overruled the
Bailiffs’ motion and and granted Mrs. Bailiff an interlocutory appeal under Tenn. R. App. P. 9.
II.
THE CLAIMS COMMISSION ACTION
Originally, if a man’s wife had been injured the man could sue for the loss of his wife’s
services, analogous to a claim for the loss of the services of his other servants. In modern times the
loss of consortium has come to include also the loss of love, affection, and companionship. Still v.
Baptist Hospital, Inc., 755 S.W.2d 807 (Tenn. Ct. App. 1988). In 1969 our Legislature extended the
cause of action to wives who had been denied the husband’s services, love, and companionship by
injuries to the husband. See Tenn. Code Ann. § 25-1-106.
Although the claim is said to be “derivative,” i.e. arising out of the injuries to the other
spouse, the right to recover for loss of consortium is a right independent of the other spouse’s right
to recover for his or her own injuries. Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct.
App. 1987). It is “a separate claim from that of the injured spouse.” Tuggle v. Allright Parking
System, 922 S.W.2d 105, 108 (Tenn. 1996). See also Hunley v. Silver Furniture Mfg. Co., 38
S.W.3d 555 (Tenn. 2001).
Clearly, then, Mrs. Bailiff’s claim was not subject to dismissal in the Claims Commission
on the fact alone that it was filed separate from her husband’s claim for his own injuries. We,
therefore, reverse the action of the Commissioner.
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We are aware that the Commissioner also relied on the Commission’s Rule No. 0310-0-0-
.01(c) that requires a party who opposes a motion to respond to it within thirty days. The rule says
that failure to respond will indicate that there is no opposition to the motion. Mrs. Bailiff did not
file a response to the State’s motion to dismiss. She did, however, file a motion to reconsider or to
amend the order dismissing her claim, supported by the authorities showing that it was viable. When
it conclusively appeared that her claim could be filed separate from the husband’s claim, we think
it was an abuse of discretion not to amend the order of dismissal. See Campbell v. Archer, 555
S.W.2d 110 (Tenn. 1977).
III.
THE ACTION IN CIRCUIT COURT
Now that we have decided that Mrs. Bailiff has a claim for loss of consortium that is separate
from her husband’s claim, we are of the opinion that the question of whether the Circuit Court erred
in holding that exclusive jurisdiction over Mrs. Bailiff’s claim lay in this court is moot. Therefore
we set aside the Circuit Court’s order overruling the motion to amend.
Under the unusual circumstances of this case, we are of the opinion that rather than
remanding Mrs. Bailiff’s consortium claim against the State to the Claims Commission with
instructions to transfer it to the Circuit Court of Davidson County, the most expeditious way to get
the various claims at issue is to remand Mrs. Bailiff’s claim to the Davidson County Circuit Court
for trial with the other claims pending there.
We, therefore, reverse the action of the Claims Commission and remand Mrs. Bailiff’s claim
to the Davidson County Circuit Court for trial. Tax the costs on appeal in both cases to the State.
_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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