State v. Alford

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON FILED
June 15, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: JUNE 15, 1998
)
V. ) MADISON COUNTY
)
) HON. FRANKLIN MURCHISON,
MICHAEL RALPH ALFORD ) JUDGE
)
Appellant ) NO. 02-S-01-9704-CC-00030

For Appellant: For Appellee:

DAVID L. HAMBLEN JOHN KNOX WALKUP
Union City, Tennessee Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

GORDON W. SMITH
Associate Solicitor General

DEBORAH A. TULLIS
Assistant Attorney General
Nashville, Tennessee

JAMES G. WOODALL
District Attorney General

DONALD H. ALLEN
Assistant District Attorney
Jackson, Tennessee

OPINION

REVERSED AND REMANDED BIRCH, J.
 The Circuit Court for Madison County entered judgment on

a jury verdict convicting Michael Ralph Alford, the appellant, of

aggravated assault1 for stabbing Ricky Murchison with the sharp end

of a four-way tire tool and inflicting a wound approximately five to

six inches deep. Following a hearing, the trial court imposed a

sentence of four years in the Department of Correction. Except for

sixty days to be served in the county jail, the sentence was

suspended upon the following conditions:

(1) Three years and ten months of
supervised probation;

(2) Performance of two hundred hours
of community service;

(3) Payment within ninety days of
$4,791.01 as restitution to the
victim; and

(4) Payment of $68,589.09 as
restitution to the insurance carrier
for the medical expenses it paid
under the victim’s insurance policy.

The Court of Criminal Appeals affirmed the trial court’s

judgment, and we granted Alford’s application for review in order to

address an issue of first impression in this state: whether a

hospitalization insurance carrier can be a “victim” and thereby

receive restitution from a defendant, as ordered by a sentencing

1
(a) A person commits aggravated assault who:
(1) Commits an assault as defined in § 39-13-101, and:
(A) Causes serious bodily injury to another; . . . .

Tenn. Code Ann. § 39-13-102 (1991).

(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes
bodily injury to another; . . . .

Tenn. Code Ann. § 39-13-101 (1991).

2
court pursuant to Tenn. Code Ann. § 40-35-304(a) (1990). Because we

find that the insurance carrier (insurer) was not a “victim” under

the circumstances here presented, we vacate that portion of the

order requiring payment of $68,589.09 to the insurer and remand the

cause for a new sentencing hearing.

I

As a general rule, courts exercising criminal jurisdiction

are without inherent power or authority to order payment of

restitution except as is derived from legislative enactment. State

v. Davis, 940 S.W.2d 558, 562 (Tenn. 1997). Our General Assembly

has enacted legislation authorizing trial courts in criminal cases

to order a defendant to pay restitution to the victim as a condition

of probation. This authorization is contained in Tenn. Code Ann. §

40-35-304(a) (1990), which provides:

A sentencing court may direct a
defendant to make restitution to the
victim of the offense as a condition
of probation.

Thus, whether an insurer may be a “victim” and thereby

receive restitution under Tenn. Code Ann. § 40-35-304 depends upon

the meaning of “victim” as used in that statute. Because the

statute does not define “victim,” we must rely on principles of

statutory construction to ascertain its meaning. Construction of a

statute is a question of law which we review de novo, with no

presumption of correctness. Roseman v. Roseman, 890 S.W.2d 27, 29

(Tenn. 1994).

3
 In matters of statutory construction, our paramount

obligations are to ascertain and give effect to the legislature’s

intent, without unduly restricting or expanding a statute’s coverage

beyond its intended scope. Carter v. State, 952 S.W.2d 417, 419

(Tenn. 1997); Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn.

1994) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)).

Legislative intent is to be ascertained primarily from the natural

and ordinary meaning of the language used, without a forced or

subtle construction that would limit or extend the meaning of the

language. Carter, 952 S.W.2d at 419 (citing National Gas

Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991)). The

component parts of a statute should be construed, if possible, so

that the parts are consistent and reasonable. Cohen v. Cohen, 937

S.W.2d 823, 827 (Tenn. 1996).

Accordingly, we turn first to the language of the statute

for guidance:

(b) Whenever . . . the victim of
the offense or the district attorney
general requests, the court shall
order the presentence service officer
to include in the presentence report
documentation regarding the nature
and amount of the victim’s pecuniary
loss.

(c) The court shall specify at
the time of the sentencing hearing
the amount and time of payment or
other restitution to the victim . . . .

. . . .

(e) For the purposes of this
section, “pecuniary loss” means:
(1) All special damages, but not
general damages, . . .

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 (2) Reasonable out-of-pocket
expenses incurred by the victim
resulting from the filing of charges
or cooperating in the investigation
and prosecution of the offense; . . . .

Tenn. Code Ann. § 40-35-304 (1990) (emphasis added). Additionally,

the restitution statute was amended in 1996 to include the following

pertinent language:

(3) If the court sentences a
defendant to payment of restitution
and believes that payment to more
than one (1) victim is proper, the
court shall determine the pecuniary
loss of each victim as provided in
this section and shall order such
amount of restitution to each such
victim;

(4) If, as a result of the
defendant’s criminal conduct, the
victim or victims of the offense are
dead at the time of sentencing, the
court may sentence the defendant to
pay restitution to the victim’s or
victims’ next-of-kin; and

(5) Nothing in Acts 1996, ch. 699, §
39-11-118, § 40-35-104(c)(2) or this
subsection shall be construed to
prohibit or delay a victim from
applying for and receiving any
compensation to which such victim is
entitled under the Criminal Injuries
Compensation Act, compiled in title
29, chapter 13. If the court orders
the defendant to pay restitution
pursuant to Acts 1996, ch. 699, § 39-
11-118, § 40-35-104(c)(2) or this
subsection, the state shall have a
subrogation interest in such
restitution payments for the full
amount paid the victim under the
Criminal Injuries Compensation Act.

Tenn. Code Ann. § 40-35-304(g)(3)-(5)(1997)(emphasis added). In the

context of the above-quoted language, it is apparent that the word

“victim” refers to the individual or individuals against whom the

5
offense was actually committed. Nothing in the statute supports a

broader application.

Additionally, a victim’s insurer is not within the natural

and ordinary meaning of “victim.” This is true because an insurer’s

payment of medical or other expenses is made pursuant to a

contractual obligation; thus, the insurer does not suffer the

unexpected harm that the actual victim suffers. See Hewitt v.

State, 936 P.2d 330, 332 (Nev. 1997). Rather, an insurer contracts

to accept the risk that claims will be made under the contract of

insurance. Therefore, the guidance offered from the language of the

statute is that the legislature did not intend “victim” to apply to

insurers in this context.

Our analysis does not end here, however. When the

language of a statute does not yield a clear interpretation, the

court may examine the legislative history for additional

interpretive guidance. Carter, 952 S.W.2d at 419. We examined the

legislative history of Tenn. Code Ann. § 40-35-304 and found no

relevant discussion within the history of the statute’s enactment in

1989. During a discussion of the 1996 amendment to Tenn. Code Ann.

§ 40-35-304, only one relevant statement was made, albeit not in the

context of the issue here presented. A member of the General

Assembly2 stated that the victims to which the statute refers would

include “the immediate members of the family who had been out the

medical expenses, and who had been out the counseling expenses.”

Tennessee General Assembly, House Tape No. 1, 99th G.A., 2d Sess. &

2
Representative Roy Herron, 76th Legislative District.

6
1st Extraordinary Sess. (February 7, 1996). This statement,

combined with the absence of any discussion concerning whether an

insurer may be a “victim” under Tenn. Code Ann. § 40-35-403, leads

us to conclude that the legislature probably never considered this

issue.

Thus, in considering both the language and the legislative

history of the restitution statute, we conclude that the Tennessee

Legislature neither envisioned nor intended restitution to apply to

insurers which pay claims made under an insurance contract. Had the

legislature intended such application, it could have explicitly

provided for it. As previously stated, this Court cannot expand the

scope of a statute to create results not intended by the

legislature. Moreover, we must include in our analysis the rule of

statutory construction which requires that criminal statutes be

strictly construed in favor of the defendant. State v. Odom, 928

S.W.2d 18, 30 (Tenn. 1996). Under the circumstances presented,

then, the insurer is not a “victim” for the purposes of Tennessee’s

restitution provisions.3

3
Courts of other states have addressed this issue, and their
holdings vary depending upon the language of the relevant statute.
Vermont’s restitution provisions are similar to ours, referring to
“the victim” without actually defining the word. 13 Vt. Stat. Ann.
§ 7043 (Supp. 1997); 28 Vt. Stat. Ann. § 252(b)(1986 & Supp. 1997).
The Supreme Court of Vermont concluded that the statutory language
does not support the inclusion of insurers in the meaning of
“victim.” State v. Webb, 559 A.2d 658, 661 (Vt. 1989); see also,
e.g., State v. Gardiner, 898 P.2d 615, 624 (Idaho Ct. App. 1995)
(superseded by statute); Hewitt, 936 P.2d at 332; State v. Fryer,
496 N.W.2d 54, 56 (S.D. 1993)(superseded by statute). But see,
State v. Blanton, 844 P.2d 1167, 1170 (Ariz. Ct. App. 1992); State
v. Brooks, 862 P.2d 57, 64 (N.M. Ct. App. 1993); People v. Chery,
511 N.Y.S.2d 88, 89 (N.Y. App. Div. 1987); State v. Stayer, 706 P.2d
611, 613 (Utah 1985).

7
 The State asserts that insurers should be awarded

restitution under a subrogation theory. As subrogees, they argue,

insurers have the same right to claim restitution in criminal

proceedings as the victims whom they have already paid. This Court,

however, does not have authority to apply the doctrine of

subrogation. The authority to award all forms of restitution,

whether by subrogation or any other procedural mechanism, must be

granted to the courts by statute. As we have already concluded, no

such authority has been granted. See Davis, 940 S.W.2d at 562;

State v. Gardiner, 898 P.2d 615, 625 (Idaho App. Ct. 1995)

(superseded by statute).

In sum, the victim’s insurer cannot be awarded restitution

under Tenn. Code Ann. § 40-35-304 because the statute does not so

provide. Accordingly, the Court of Criminal Appeals is reversed,

and that portion of the judgment requiring payment of $68,589.09 to

the insurance carrier is vacated. Inasmuch as we have vacated an

element of the appellant’s sentence, we remand the cause to the

trial court for a new sentencing hearing. Costs of this cause are

taxed against the State, for which execution may issue if necessary.

______________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.
Drowota, Holder, JJ.
Reid, S.J.

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