IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 14, 2005 Session
SHARON LEMONS, ET AL. v. RHONDA CLOER, ET AL.
Interlocutory Appeal from the Circuit Court for Polk County
Nos. CV-01-0461, CV-03-106, CV-03-107, CV-03-108 John B. Hagler, Judge
No. E2004-02842-COA-R9-CV - FILED APRIL 28, 2006
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Affirmed; Case Remanded
AND
JIMMY DARRELL SILVERS, ET AL. v. RHONDA CLOER, ET AL.
Appeal from the Circuit Court for Polk County
Nos. CV-03-109, CV-03-110 John B. Hagler, Judge
No. E2004-02745-COA-R3-CV2
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
These appeals find their genesis in a collision between a Georgia school bus and a CSX freight train
in Polk County, Tennessee, just north of the Georgia state line. As a result of the collision, three
1
All of the cases before us on this appeal – being six in number – were consolidated for disposition by the trial
court under its number CV-01-046, the number assigned to the Lemons case.
2
This Tenn. R. App. P. 3 appeal as of right was consolidated by us with the Lemons case because of common
facts and a common question of law.
children were killed and four others on the bus were injured. All of the children were minors. Three
wrongful death actions and three personal injury actions – as well as other actions not involved in
this appeal – were filed in the trial court. The cases before us named as defendants, Rhonda Cloer,
the driver of the bus; the Murray County [Georgia] School District (“the School District”); and other
entities. Regarding two of the wrongful death claims against the School District, the trial court held
that the claims were barred by the personal injury one-year statute of limitations. As to all of the
claims arising out of the collision, the trial court held that the School District’s liability could not
exceed $300,000, the total amount of the coverage for one incident under the School District’s
vehicle liability policy. We affirm.
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and NORMA MCGEE OGLE, SP . J., joined.
Phillip A. Fleissner and Scott N. Davis, Chattanooga, Tennessee; Warren N. Coppedge, Jr., Dalton,
Georgia; and William W. Keith, III, Chatsworth, Georgia, for the appellants, Sharon Lemons and
Ralph C. Pritchett.
Jerry H. Summers, Chattanooga, Tennessee, and Jack B. McNamee, Birmingham, Alabama, for the
appellants, Jimmy Darrell Silvers and Sonya Rimer; Cynthia J. Sluder; Mary Martin; Anita K.
Beavers; Jack D. Sherrill; and Sheila G. Sherrill.
Phillip L. Hartley and Martha M. Pearson, Gainesville, Georgia; F. Gregory Melton, Dalton,
Georgia; and Randy Sellers, Cleveland, Tennessee, for the appellee, Murray County School District.
OPINION
I.
This school bus/freight train collision occurred at approximately 6:35 a.m. on March 28,
2000, at a railroad crossing on Liberty Church Road in Polk County. The school bus was driven by
Rhonda Cloer, an employee of the School District. Seven Georgia school children were on the bus.
As shown on the map attached as an appendix to this opinion, Liberty Church Road is
essentially a “loop” road located to the east of U.S. Highway 411. The south end of the road begins
at Highway 411 in Georgia while, in the north, the road ends at the same Highway 411, but this time
in Tennessee. At the south end of the road, it proceeds east from Highway 411 and then due north,
all in Georgia. The northward direction of the road ends at the Georgia - Tennessee state line. From
that point, the road proceeds due west for a relatively short distance. This westward movement of
the road straddles the state line. Finally, the road leaves the state line, goes slightly northwest and
then due west to Highway 411. As can be seen, once the road leaves the state line, it is in Tennessee
for the remainder of the distance back to Highway 411.
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On the morning of March 28, 2000, the defendant Cloer was operating a school bus for the
School District. Her designated route required her to traverse Liberty Church Road from its southern
exit off Highway 411 along the above described loop, back to Highway 411, and then along 411
south back to a school in Georgia. On the day in question, Ms. Cloer’s bus stopped, as it was
traveling west and tracing the state line, to pick up several Georgia children at Liberty Baptist
Church, a bus stop located on the south side of Liberty Church Road, i.e., the Georgia side. The
right-hand or north side of the road is in Tennessee. After picking up the children, the school bus
continued to proceed west and into Tennessee. Before Ms. Cloer’s route took her back to 411, her
bus would have to cross a set of railroad tracks – the impact site of the collision at issue. This
intersection was marked by a railroad crossing sign, which was placed there by the Tennessee
Department of Transportation. The railroad crossing did not have warning bells, lights, or crossing
arms.
While Ms. Cloer was approaching the tracks, the train was heading toward Liberty Church
Road at a speed of 51 miles per hour. On the train were two Tennessee residents – an engineer,
Roger Farley, and a conductor, Kendrick Perry.3 The train’s lights were on, and, as was the custom,
Mr. Farley sounded a horn cadence upon approaching the crossing. The school bus approached the
crossing at approximately 15 miles per hour. As the train got closer to the intersection, Mr. Farley
saw the school bus and watched for signs indicating that the bus was going to stop before it reached
the railroad crossing. A video camera, which was on the school bus for the purpose of monitoring
the behavior of the children, captured the fact that the bus did not stop prior to crossing the railroad
tracks. Country music is audible on the tape.
When Mr. Farley realized that the bus was not going to stop, he applied the train’s emergency
braking system and continuously blew the train’s horn. The train hit the bus near its rear axle and
pushed the body of the bus, which was now separated from the chassis, some 200 feet. The train
came to a stop approximately 1,990 feet beyond the crossing. Tennessee emergency vehicles
responded to the collision; the injured children were transported to Tennessee hospitals. Three of
the seven children on the bus – Amber Pritchett, Kayla Silvers, and Daniel Pack – died as a result
of their injuries. The other children on board, including Ms. Cloer’s daughter,4 suffered minor to
severe injuries.
II.
On March 27, 2001, within one year of the accident on March 28, 2000, Sharon Lemons and
Ralph C. Pritchett filed a complaint in the trial court seeking damages for the wrongful death of their
3
Both Mr. Farley and Mr. Perry filed personal injury actions in the trial court, but neither of these claims are
before us on this appeal.
4
A lawsuit also was filed in connection with the injuries sustained by Ms. Cloer’s daughter. It is not before
us on this appeal.
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daughter, Amber Pritchett. The complaint seeks to recover damages against the School District and
others.5
On June 25, 2003, more than three years after the accident, Cynthia J. Sluder and Jimmy D.
Silvers,6 filed separate actions for the wrongful deaths of their respective children, Daniel Pack and
Kayla Silvers. On the same day, adult relatives filed three separate suits seeking damages for injuries
sustained by Jordan J. Manis, Brittany A. Gaddis, and Kevin Sherrill, all of whom were passengers
on the school bus and all of whom suffered injuries, in varying degrees of seriousness, as a result of
the accident. As pertinent to the issues on this appeal, each of these five suits seeks damages against
the School District.
The trial court, acting on the motion for partial summary judgment filed by the School
District, ruled that, pursuant to Georgia law, which the court found to be applicable to these cases
under principles of conflict of laws and comity, the School District’s liability for all claims arising
out of this accident was capped at $300,000, the total coverage afforded by its vehicle liability
insurance policy for a single accident. With respect to the Sluder wrongful death claim and the
Silvers/Rimer7 wrongful death claim, the trial court granted the School District’s motion for
summary judgment, holding that these claims were barred by the one-year statute of limitations for
personal injury, Tenn Code Ann. § 28-3-104 (2000).8
We granted a discretionary appeal to Sharon Lemons and Ralph C. Pritchett as well as to
Mary Martin, Anita K. Beavers, Jack D. Sherrill, and Sheila G. Sherrill. The Silvers and Sluder
claims are before us as of right.
The material facts with respect to the issues raised on this appeal are not in dispute.
Accordingly, our review is de novo on the record of the proceedings before the trial court with no
presumption of correctness as to the trial court’s conclusions of law. See Tenn. R. App. P. 13(d).
See also Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).
5
Also named as defendants were the driver of the bus; CSX Transportation, Inc.; the company responsible for
trimming the vegetation along the railroad tracks; and State Farm Mutual Automobile Insurance Company. These claims
are not before us on this appeal.
6
Kayla Silvers’ mother, Sonya Rimer, apparently was later added as a plaintiff.
7
For ease of reference, this case will hereinafter be referred to as the Silvers’ claim. No disrespect toward the
child’s mother is intended.
8
The court also ruled that the claims filed on behalf of Manis, Gaddis, and Sherrill, all minors, were not barred
by Tenn. Code Ann. § 28-3-104. The School District does not appeal this ruling.
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III.
These consolidated appeals focus on two separate and distinct issues. The first issue, which
pertains to all of the still-pending claims arising out of this accident, is whether Georgia’s sovereign
immunity – as it relates to the School District’s $300,000 vehicle liability insurance policy – applies
to the facts of this case. The plaintiffs contend that the $300,000 limit does not apply for several
reasons. They argue that both Georgia and Tennessee choice of law principles dictate that Tennessee
– not Georgia – substantive law should be applied. They argue that “extraterritorial governmental
immunity” does not exist because, according to the plaintiffs, once the school bus crossed into
Tennessee, the School District lost its entitlement to sovereign immunity. The plaintiffs further take
issue with the trial court’s finding that the principle of comity requires the application of Georgia
law. Additionally, they appear to argue that the School District cannot invoke sovereign immunity
with respect to certain alleged acts of negligence because of the nature of those alleged acts.
The second issue before us pertains only to the wrongful death claims arising out of the
deaths of Kayla Silvers and Daniel Pack. The plaintiffs pursuing these claims contend that the trial
court erred in determining that their claims are barred by the one-year statute of limitations for
personal injury. They assert that Tenn. Code Ann. § 28-1-106 (2000) tolled the running of the statute
of limitations during what would have been their period of minority, had they not been killed in the
accident.
IV.
A.
In evaluating the first issue, we must determine if there is, in fact, a conflict of laws.
Hataway v. McKinley, 830 S.W.2d 53, 55 (Tenn. 1992). Clearly, there is. Under the operative
Georgia law, the School District’s liability arising out of claims for negligent use of a motor vehicle
is limited to the amount of the School District’s motor vehicle liability coverage under the policy in
effect at the time of the accident. Ga. Code Ann. § 33-24-51(b), (c), (d) (stating that Georgia’s
sovereign immunity is waived “only to the extent of the limits or the coverage of the insurance
policy.”). This means that the School District’s liability is capped at $300,000, the total amount of
coverage afforded for one accident under the School District’s vehicle liability insurance policy.
Therefore, if Georgia substantive law applies, the School District is immune from any liability in
excess of $300,000. On the other hand, if the substantive law of Tennessee applies, there is no
limit.9
9
Tennessee has a similar Code provision, Tenn. Code Ann. § 29-20-311 (2000), capping damages against a
governmental entity. However, if Tennessee law applies, the damages would not be capped in this case because the limit
in Tenn. Code Ann. § 29-20-311 applies to Tennessee governmental entities. See Tenn. Code Ann. § 29-20-102 (Supp.
2005) (defining a “[g]overnmental entity” as “any political subdivision of the state of Tennessee”). (Emphasis added).
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The School District does not dispute that the procedural law of Tennessee applies to the facts
of this case. However, it does not necessarily follow from this that the substantive law of Tennessee
is also applicable to this accident in Tennessee. The fact that one state’s law may apply on
procedural matters while another state’s law may be applicable to substantive law issues is a
situation that is recognized in comment (d) to Restatement (Second) of Conflict of Laws § 145
(1971):
The courts have long recognized that they are not bound to decide all
issues under the local law of a single state. Thus, in a simple motor
accident case that occurred outside the state of the forum, a court
under traditional and prevailing practice applies its own state’s rules
to issues involving process, pleadings, joinder of parties, and the
administration of the trial . . . while deciding other issues – such as
whether the defendant’s operation of the vehicle was negligent – by
reference to the law selected by application of the rules stated in this
Chapter.
Id. Thus, the issue before us remains: Does the substantive law of the forum state – here, Tennessee
– apply or does the substantive law of Georgia determine the rights of these parties? We hold that
a complete answer to this question is found in Hataway v. McKinley, a case in which the Tennessee
Supreme Court adopted the Restatement (Second)’s approach in resolving choice of law conflicts.
830 S.W.2d at 59. Prior to Hataway, Tennessee followed the lex loci delicti doctrine. Under lex loci
delicti, the substantive rights of an injured party are determined according to the law of the state
where the injury occurred. Id. at 55. Hataway involved a tragic scuba-diving death in Arkansas.
Id. at 54. The dive was part of a scuba class taught by the defendant at Memphis State University.
Id. Both the defendant and the deceased were life-long residents of Tennessee. Id. The parents of
the deceased filed a wrongful death action in Memphis. Id. If the lex loci delicti rule was the law
of the case, it is clear that the substantive law of Arkansas, e.g., that state’s wrongful death statute
and comparative fault system, would be applicable to the facts in that case. Id. at 55.
The Tennessee Supreme Court in Hataway declined to apply lex loci delicti, opting instead
to adopt the “most significant relationship” test embodied in the Restatement:
(1) The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state which, with respect
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to that issue, has the most significant relationship to the occurrence
and the parties under the principles stated in § 6.10
(2) Contacts to be taken into account in applying the principles of §
6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation
and place of business of the parties,
(d) the place where the relationship, if any, between the
parties is centered.
These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
Restatement (Second) of Conflict of Laws § 145 (emphasis added). Section 146 of the Restatement
(Second) of Conflict of Laws provides that
[i] an action for personal injury, the local law of the state where the
injury occurred determines the rights and liabilities of the parties,
unless, with respect to the particular issue, some other state has a
more significant relationship under the principles stated in § 6 to the
occurrence and the parties, in which event the local law of the other
state will be applied.
Restatement (Second) of Conflicts of Laws § 175 is also pertinent:
In an action for wrongful death, the local law of the state where the
injury occurred determines the rights and liabilities of the parties
unless, with respect to the particular issue, some other state has a
10
Section 6 recites the following choice-of-law principles:
(1) A court, subject to constitutional restrictions, will follow a statutory directive
of its own state on choice of law.
(2) W hen there is no such directive, the factors relevant to the choice of the
applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular
issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be
applied.
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more significant relationship under the principles stated in § 6 to the
occurrence and the parties, in which event the local law of the other
state will be applied.
The Tennessee Supreme Court, after abandoning the “outmoded” lex loci delicti approach,
determined that Tennessee substantive law would apply to the facts before it because, in the words
of the court, Tennessee had the “more significant relationship to the occurrence and the parties.”
Hataway, 830 S.W.2d at 54. Hataway further provides:
The only contact the parties had with the State of Arkansas was that
the injury occurred in that state. Both the decedent and the defendant
were life-long residents of Tennessee and neither owned any property
in Arkansas. The parties’ relationship was centered in Tennessee
because the relationship was formed and continued as a result of the
decedent’s participation in the scuba class taught at Memphis State
by the defendant. We think the fact that the injury occurred in
Arkansas was merely a fortuitous circumstance, and that the State of
Arkansas has no interest in applying its laws to this dispute between
Tennessee residents. Under the facts here presented, we conclude
that although the injury occurred in Arkansas, the State of Tennessee
has a more significant relationship to the occurrence and the parties
under the factors and contacts set out in §§ 6 and 145 of Restatement
(Second).
Id. at 60.
In the instant case, all of the children on the bus were residents of Georgia. The bus driver
was also a resident of Georgia. The School District is a Georgia governmental entity. The School
District’s relationships with the plaintiffs were clearly centered in Georgia. This was a Georgia bus
picking up children living in Georgia and transporting them to a Georgia school. The contacts with
Tennessee are the following: the accident occurred in Tennessee; Tennessee emergency and medical
personnel responded to the accident; injured parties were taken to Tennessee hospitals; and the train
engineer and conductor, who also filed personal injury claims in the trial court, were residents of
Tennessee. When all of this is considered, we conclude that Georgia had a “more significant
relationship” to the parties and events at issue. See Restatement (Second) of Conflict of Laws §
145(2). This is not to say that Tennessee did not have a relationship to the parties and this school
bus/freight train collision; but, in our judgment, Tennessee’s relationship is less significant than that
of Georgia.
As a somewhat alternative argument for the application of Tennessee law over Georgia law,
the plaintiffs appear to rely on the fact that Georgia still applies the lex loci delicti rule in its
resolution of choice of law conflicts. Dowis v. Mud Slingers, Inc., 621 S.E.2d 413 (Ga. 2005). The
plaintiffs mentioned the recent decision in Dowis at oral argument. Consequently, we requested that
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the parties file supplemental briefs addressing its impact, if any, on the issues presently before us.
The sole issue in Dowis was whether the lex loci delicti rule should be retained as Georgia’s choice
of law rule. 621 S.E.2d at 414. The Georgia High Court looked at the “most significant
relationship” test, and specifically Tennessee’s Hataway opinion, for an alternative approach. Id.
at 415-18. Citing stare decisis and the predictability of the lex loci delicti rule, the Georgia Supreme
Court held that it would continue to utilize the lex loci delicti rule. Id. at 419.
The plaintiffs in the instant case argue that the decision in Dowis somehow establishes (1)
that Tennessee law should apply because Tennessee, as the place where the collision occurred, had
substantial interests in the wrongs committed within its borders; and (2) that, because of this
difference in approach, Tennessee should not recognize Georgia governmental immunity by way of
comity. We find these arguments to be without merit and totally unsupported by the decision in
Dowis. The conflict of laws rule to which Georgia prescribes is not material in this case. This action
was brought in a Tennessee state court; thus, Tennessee’s choice of law rule, i.e., the Hataway test,
is the controlling relevant choice of law principle.
The plaintiffs contend that, if we determine Georgia substantive law applies, all of that law,
including lex loci delicti, is applicable. The plaintiffs extrapolate from this proposition that
Tennessee’s substantive law, including a lack of immunity for this non-Tennessee entity, applies
because Tennessee is where the accident occurred; therefore, Tennessee law is the lex loci delicti.
This circular reasoning is commonly known as renvoi, a French word meaning “sending back.”11
To our knowledge, the only court in Tennessee to consider the application of renvoi is a federal
district court. In the case of Hari & Assocs. v. RNBC, Inc., 946 F.Supp. 531 (M.D. Tenn. 1996),
the plaintiff, a motel developer, sued his lender for fraud in a federal district court located in
Tennessee. Id. at 533-34. Applying Hataway, the district court found that, although the motel was
to be built in Tennessee, Georgia had the “most significant relationship” to the tort because all of the
parties’ contracts and loan agreements were centered and executed in Georgia. Id. at 536. The
plaintiff similarly relied on the renvoi doctrine in an attempt to convince the court that Tennessee,
not Georgia, substantive law should apply. Id. at 536-37. The district court rejected the plaintiff’s
renvoi argument and “decline[d] to adopt this disfavored doctrine for the state of Tennessee.” Id.
at 537.
We agree with the district court’s approach to the renvoi argument. Since the complaints in
the instant case were filed in a Tennessee court, Tennessee’s choice of law rule, the “most significant
relationship” test, applies. As previously stated, this test, in our judgment, leads, without any doubt,
to Georgia substantive law. At this juncture, the plaintiffs would argue that the Georgia substantive
11
Black’s Law Dictionary 1300 (7th ed. 1999). The renvoi doctrine has been defined thusly:
The doctrine under which a court in resorting to foreign law adopts as well the
foreign law’s conflict-of-laws principles, which may in turn refer the court back to
the law of the forum.
Id.
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law, to which Hataway directs us, includes the Georgia choice of law, i.e., lex loci delicti. This
means, according to the plaintiffs, that we are “sen[t] back” to Tennessee as our source of substantive
law. The problem with this approach is that if Georgia substantive law, in the context under
discussion, is viewed as including its choice of law principles, there is no reason to hold that the
Tennessee substantive law does not also include its choice of law principles. The Georgia choice
of law doctrine of lex loci delicti would bring us back to Tennessee, whose substantive law,
including its choice of law doctrine of “most significant relationship,” would lead back to Georgia,
after which the process, arguably, would be repeated ad infinitum. Obviously, this “quagmire”
cannot be the law.
The plaintiffs also contend that the School District does not enjoy what the plaintiffs refer
to as “extraterritorial governmental immunity.” They argue that once the school bus left Georgia,
the School District lost its protection as a governmental entity, i.e., limited immunity under Georgia
law, and became nothing more than a private, non-immune, enterprise. In support of their position,
the plaintiffs rely upon the cases of State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct.
369, 68 L.Ed. 769 (1924) and Harris v. City of Chattanooga, 507 F.Supp. 374 (N.D. Ga. 1981).
Neither of these cases are germane to the facts of our case for the simple reason that neither involves
the application of the “most significant relationship” test adopted in Hataway. Under Hataway, the
substantive law of Georgia, where relevant, applies to the facts of the instant case. There is nothing
in Hataway to suggest that a court in Tennessee can “cherry pick” the substantive law of the state
found to have the “most significant relationship” to the occurrence and the parties. In other words,
once a Tennessee court determines that a foreign court has the “most significant relationship,” that
state’s substantive law applies as fully as if the occurrence had taken place in the foreign state. That
law, in this case, includes the School District’s limited immunity.
B.
The trial court held that, in addition to the rationale of Hataway, the doctrine of comity
would require the application of Georgia substantive law to this case. “Comity” means that courts
of one state may, out of respect and the need for interstate harmony, defer to the decisions of the
courts of another state or extend immunity to another state out of deference to the foreign state’s
laws, even when not required to do so by the Full Faith and Credit Clause of the United States
Constitution. See Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182, 1191, 59 L.Ed.2d 416 (1979)
(“It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other
immunity or to respect any established limits on liability.”). “[W]here the law of another jurisdiction
is applicable, Tennessee will enforce the substantive rights which litigants have under the laws of
the other jurisdiction if such rights are not contrary to the policy of Tennessee.” Hyde v. Hyde, 562
S.W.2d 194, 196 (Tenn. 1978). The public policy of a state is found in its constitution, statutes, and
court decisions. Id. In the instant case, it is clear that Georgia’s law with respect to waiver of
immunity is completely in harmony with the public policy of Tennessee. See Tenn. Code Ann. § 29-
20-311 (stating that awards against Tennessee governmental entities cannot exceed the amount of
insurance coverage); Tenn. Code Ann. § 29-20-403(B)(2)(A) (Supp. 2005) (setting the applicable
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limits for motor vehicle coverage at $130,000 for one person and $350,000 for all persons in a single
occurrence).
C.
The plaintiffs spend a great deal of time toward the end of their brief discussing whether or
not certain alleged negligent acts of the School District were ministerial, discretionary, planning, or
operational in nature. They contend that the School District cannot invoke immunity for the
negligent acts of Ms. Cloer while in Tennessee (e.g., not stopping the school bus or not listening for
the train), or for any negligence associated with the School District’s supervision or hiring of the
person who planned, routed, and scheduled the school bus. We believe a discussion of these issues
is inappropriate at this juncture. The only issue before us is whether the School District’s liability
is capped at $300,000. We have found that it is. The plaintiffs’ arguments under discussion do not
pertain to this; rather, they pertain to the issue of whether, and under what circumstances, the School
District can be liable for its employees’ negligence. This is a different issue and one that is not
before us on this appeal.
D.
In summary, we conclude that Georgia substantive law applies to the facts of this case. Thus,
the School District’s liability arising out of this accident is capped by the single-accident limit of
$300,000 under its vehicle liability insurance policy. See Ga. Code Ann. § 33-24-51(c).
V.
The last issue we must resolve is whether the trial court erred in holding that the wrongful
death claims brought on behalf of Daniel Pack and Kayla Silvers are barred by the one-year personal
injury statute of limitations. The relevant facts are these. The collision occurred on March 28, 2000.
The wrongful death claims of two of the three children killed in the collision, Pack and Silvers, were
filed by their respective parents, Cynthia Sluder and Jimmy Silvers, in June, 2003, as were the
personal injury claims of three of the other children injured in the accident. The School District filed
a motion for summary judgment, arguing that all of these claims were barred by the applicable one-
year statute of limitations. In September, 2004, the trial court granted the School District partial
summary judgment pursuant to Tenn. R. Civ. P. 54.02, concluding that the Sluder and Silvers
wrongful death claims are barred by the statute of limitations found at Tenn. Code Ann. § 28-3-104,
and that the claims were not tolled by Tenn. Code Ann. § 28-1-106. The School District’s motion
for summary judgment was denied as to the personal injury claims asserted on behalf of these three
children injured in the accident.
Sluder and Silvers argue that the trial court erred in granting summary judgment with respect
to their actions because, according to them, Tenn. Code Ann. § 28-1-106 allowed them to bring suit
up to one year after their child’s emancipation would have taken place, had they lived. First, it is
important to note that “our courts have uniformly applied the one-year statute of limitation contained
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in § 28-3-104 governing actions for personal injuries to actions for wrongful death.” Collier v.
Memphis Light, Gas & Water Div., 657 S.W.2d 771, 774 (Tenn. Ct. App. 1983) (citing Jones v.
Black, 539 S.W.2d 123 (Tenn. 1976)). Furthermore, in Jordan v. Baptist Three Rivers Hosp., 984
S.W.2d 593 (Tenn. 1999), the Supreme Court held that, in wrongful death actions, the “pecuniary
value of a decedent’s life includes the element of damages commonly referred to as loss of
consortium.” Id. at 595. In other words, loss of consortium-type damages “do[] not create a new
cause of action but merely refine[] the term ‘pecuniary value.’” Id. at 601. Thus, the one-year statute
of limitations period also applies to the loss of consortium aspect of the wrongful death claim. See
Hancock v. Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 237 (Tenn. 2001).
Plaintiffs Sluder and Silvers assert that, since their children were minors at the time of their
death, Tenn. Code Ann. § 28-1-106 tolls the statute of limitations until one year after the children
would have reached the age of 18 years. Section 28-1-106 provides as follows:
If the person entitled to commence an action is, at the time the cause
of action accrued, either within the age of eighteen (18) years, or of
unsound mind, such person, or such person’s representatives and
privies, as the case may be, may commence the action, after the
removal of such disability, within the time of limitation for the
particular cause of action, unless it exceeds three (3) years, and in that
case within three (3) years from the removal of such disability.
Id.
Because the statute of limitations begins to run, under the statute, as soon as the disability
is removed, it is “most important to determine when the disability is removed.” Collier, 657 S.W.2d
at 774. Collier is a complete answer on this issue because it specifically holds that, even after
considering the potential tolling effect of § 28-1-106, a deceased minor’s next of kin is required to
file a wrongful death action within one year from the date of death of the minor. Id. at 773-74. In
making this determination, this Court relied upon Justice Brock’s dissenting opinion in Jones v.
Black, in which he said the following:
The death of a person under disability removes the disability and sets
the statute to running; thus, if a person under a disability, such as the
deceased mother in this case, had a cause of action for personal
injuries, that action must be commenced within one year after his or
her death.
Collier, 657 S.W.2d at 774 (quoting Jones v. Black, 539 S.W.2d at 126 ) (Brock, J., dissenting).
Sluder and Silvers brought their wrongful death claims more than three years after the death of their
minor children. Because Tennessee’s one-year statute of limitations applies to these claims, and
because Tenn. Code Ann. § 28-1-106 does not have the effect of tolling the limitations period, the
trial court correctly dismissed the Sluder and Silvers claims.
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VI.
The judgments of the trial court before us in these consolidated appeals are affirmed. These
matters are remanded to the trial court for such further proceedings as may be required, consistent
with this opinion. Costs on appeal are taxed to Sharon Lemons, Ralph C. Pritchett, Cynthia J.
Sluder, Jimmy Darrell Silvers, Sonya Rimer, Mary Martin, Anita K. Beavers, Jack D. Sherrill, and
Sheila G. Sherrill.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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