Tuggle v. Allright Parking Systems, Inc.

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FILED
May 6, 1996
FOR PUBLICATION
FANNIE TUGGLE and ) Cecil Crowson, Jr.
HOYT TUGGLE, ) Appellate C ourt Clerk
) Filed: May 6, 1996
Plaintiffs-Appellees. )
)
) SHELBY CIRCUIT
Vs. )
)
) HON. KAY S. ROBILIO,
ALLRIGHT PARKING SYSTEMS, ) JUDGE
INC., )
)
Defendant-Appellant. ) No. 02-S-01-9501-CV-00009

For Appellant: For Appellees:

Carl Wyatt Lanier Fogg
Robert A. Cox Memphis, Tennessee
GLASSMAN, JETER, EDWARDS
and WADE, P.C.
Memphis, Tennessee

OPINION

AFFIRMED. ANDERSON, C.J.
 We granted this appeal to determine whether a party with a derivative

claim - loss of consortium - is entitled to challenges under the peremptory jury

challenge statute, Tenn. Code Ann. § 22-3-105.

We conclude that the clear and unambiguous language of the jury

challenge statute provides additional peremptory challenges to a party with a

derivative claim,1 and that a new trial is required because the denial of that

statutory right constitutes prejudice to the judicial process. In the interest of

judicial economy, since a new trial is required, we have also decided that under

comparative fault principles, the recovery of a spouse claiming loss of

consortium will be reduced in proportion to or barred by the fault of the physically

injured spouse. We, therefore, affirm the Court of Appeals’ decision reversing

and remanding for a new trial.

BACKGROUND

The plaintiff, Fannie Tuggle, filed this personal injury action for damages

after she fell on an icy walkway in a parking lot operated by the defendant,

Allright Parking Systems, Inc. (“Allright”). Her husband, Hoyt Tuggle, joined in

the suit alleging loss of consortium. The Tuggles allege that Allright was

negligent in failing to clear the ice from the walkway.

At the first trial of this case, the plaintiffs won a jury verdict, but a new trial

was granted. The second trial occurred after McIntyre v. Balentine, 833 S.W.2d

52 (Tenn. 1992), and was governed by its principles. The defendant pled that

1
The statute au thorizes a to tal of eight pe rem ptory challenges per side w hen a civil s uit
involves more than one party per side. For exam ple, if th ere a re two party p laintiff s, the n eac h is
entitled to four per emp tory challeng es. How ever, if there are m ore than two party plain tiffs, the
precise division of the eight peremptory challenges among the plaintiffs is a matter the statute assigns
to the discretion of the trial court. Tenn. Code Ann. § 22-3-105.

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both plaintiffs were barred from recovering because Fannie Tuggle’s fault was

greater than the fault of Allright.

At the second trial, during voir dire of the prospective jury, the two

plaintiffs, having exercised four peremptory challenges, attempted to exercise a

fifth peremptory challenge of a juror, claiming they were entitled to four each,

and a total of eight, pursuant to Tenn. Code Ann. § 22-3-105(b)(1994 Repl.).

The trial judge disallowed the fifth challenge, presumably concluding that

because one of the plaintiffs was asserting a derivative claim for loss of

consortium, the two plaintiffs were entitled to a total of only four peremptory

challenges under the statute.

The jury was thereafter impaneled and sworn, and following the proof,

returned a verdict for Allright. They determined that Allright was negligent, but

concluded that Fannie Tuggle’s negligence equaled or exceeded 50 percent of

the total negligence. The juror the plaintiffs had attempted to challenge served

as foreperson of the jury.

On appeal, the Court of Appeals concluded that the derivative character

of a claim for loss of consortium does not alter the meaning of the statute which

allows eight peremptory challenges in cases which involve more than one

plaintiff. Accordingly, the Court of Appeals reversed and remanded for a new

trial.

Thereafter, we granted permission to appeal to determine whether a party

with a derivative claim is entitled to additional challenges under the jury

challenge statute, and if so, whether the trial court’s failure to allow the additional

challenges resulted in prejudice requiring a remand for a new trial.

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 PEREMPTORY CHALLENGES

In this Court, Allright argues that the trial court did not err in refusing to

allow the plaintiffs to exercise eight peremptory challenges since the loss of

consortium claim is derivative. Allright urges us to follow decisions from other

courts which hold that additional challenges should be awarded only if the

interests of the multiple party plaintiffs are antagonistic.

On the other hand, the Tuggles argue that under the plain language of the

Tennessee statute they were each entitled to four peremptory challenges

because this case involves more than one plaintiff.

We begin our analysis with some fundamental principles. In Tennessee,

challenges to a prospective juror may be either peremptory or for cause. The

right to challenge peremptorily is the right to exclude the prospective juror without

assigning any reason for the challenge. Peremptory challenges are allowed by

the Legislature as an act of grace and can be exercised as a matter of right only

to the extent allowed by statute. Kunk v. Howell, 289 S.W.2d 874, 877 (Tenn.

App. 1956).

The Legislature has determined that peremptory challenges will be

allowed in civil cases by Tenn. Code Ann. § 22-3-105 (1994 Repl.), which

provides:

(a) Either party to a civil action may challenge four (4) jurors without
assigning any cause.

(b) In the event there is more than one (1) party plaintiff or more
than one (1) party defendant in a civil action, four (4) additional
challenges shall be allowed to such side or sides of the case; and
the trial court shall in its discretion divide the aggregate number of
challenges between the parties on the same side which shall not
exceed eight (8) challenges to the side, regardless of the number

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 of parties. Even when two (2) or more cases are consolidated for
trial purposes, the total challenges shall be eight (8), as herein
provided.

(Emphasis added.)

In determining whether the statute grants eight peremptory challenges in

this case, we apply well-settled principles of statutory construction, the most

basic of which is to ascertain and give effect to the intention and purpose of the

legislature. Worrall v. Kroger Co., 545 S.W .2d 736 (Tenn. 1977). Legislative

intent and purpose 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. National Gas Distributors, Inc. v.

State, 804 S.W.2d 66 (Tenn.1991). As early as 1841, this Court said that where

the language contained within the four corners of a statute is plain, clear, and

unambiguous and the enactment is within legislative competency, "the duty of

the courts is simple and obvious, . . . obey it." Miller v. Childress, 21 Tenn. (2

Hum.) 320, 321-22 (1841). As to legislative intent, this Court has more recently

observed that:

[I]f [the legislative intent] is expressed in a manner devoid of
contradiction and ambiguity, there is no room for interpretation or
construction, and the judges are not at liberty, on consideration of
policy or hardship, to depart from the words of the statute . . . .

Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn. 1983).

Applying the foregoing principles of statutory construction, we observe

that Tenn. Code Ann. § 22-3-105 (b) plainly provides that “[i]n the event there is

more than one (1) party plaintiff . . . four (4) additional challenges shall be

allowed . . . .” The statute is free of ambiguity, and in the face of such clear

language, this Court’s duty is to apply the statute as it is written, without further

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interpretation or construction. In this case, there are two plaintiffs. Therefore,

the answer is clear. Under the statute, each of the plaintiffs in this case was

entitled to four peremptory challenges, and the trial court erred in refusing to

grant the additional challenges.

Fatal to the defendant’s argument is the absence of language in the

Tennessee statute which conditions additional challenges on the antagonistic

interests of the party plaintiffs. The Florida and Georgia decisions upon which

the defendant relies involve statutes with different language than the statute at

issue here and are, therefore, inapposite. Moreover, the derivative nature of a

claim for loss of consortium is irrelevant to the construction of this statute. Our

inquiry begins and ends with the plain language of the statute which dictates the

number of challenges required when a case involves more than one plaintiff.

Therefore, we conclude that when there are two plaintiffs in one lawsuit,

Tenn. Code Ann. § 22-3-105 (1994 Repl.) requires that each be afforded four

peremptory challenges. Cf. Crawford v. Heaberg, 709 S.W.2d 611 (Tenn. App.

1986)(Holding that where three separate and independent lawsuits were

consolidated for trial by jury, the plaintiffs were entitled to a total of eight

peremptory challenges to be divided among them as the trial judge deemed

appropriate).

Having determined that the trial court erred, we must next consider

whether the error requires a remand for a new trial. We have previously stated,

in the criminal context, that “[t]he Legislature, in its wisdom, certainly has the

right and power to direct the judicial process.” State v. Cook, 816 S.W.2d 322,

327 (Tenn. 1991). We also have emphasized that, “[r]ules prescribing jury

selection procedures are intended to protect the integrity of the jury system by

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providing a uniform and ordered method that ensures the accused a fair and

impartial jury chosen from a fair cross-section of the community.” State v.

Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). Although the stakes are different

in civil cases, the power of the Legislature to direct the judicial process is

unchanged, and the purpose of the procedural rules is the same -- to insure

uniformity, impartiality, and fairness in jury selection. While it is difficult for an

individual litigant to prove that a deviation from such procedural rules “more

probably than not” affects the judgment in a particular case, it is clear that

compliance with such rules protect the integrity of the jury system and safeguard

the administration of justice. Id. Therefore, such deviations from prescribed

procedural rules have been held to constitute prejudice to the judicial process

under Tenn. R. App. P. 36(b). Cf. State v. Coleman, supra (Court

commented that defendant had not been denied the use of his statutorily

mandated number of peremptory challenges so no reversal required); State v,

Cook, supra (Court found prejudice to the judicial process and reversed for a

new trial where the defendant was denied his statutory right to have the jury

instructed as to the range of possible punishments that would result from

convictions).

In this case, Hoyt Tuggle was denied the use of his statutorily mandated

number of peremptory challenges. In our view, denial of that right, which was

designed to safeguard the administration of justice, constitutes prejudice to the

judicial process and requires a reversal in this case under Tenn. R. App. P.

36(b). As a result, we affirm the Court of Appeals’ decision that a new trial must

be granted.

COMPARATIVE FAULT - LOSS OF CONSORTIUM

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 Having determined that a new trial is required, in the interests of judicial

economy, we deem it necessary to resolve a question of first impression -

whether, under comparative fault principles, the recovery of a spouse claiming

loss of consortium should be reduced or barred by the fault of the physically

injured spouse.

We begin our analysis with a brief review of the law in this State as it

relates to loss of consortium. In Tennessee, “despite being a separate claim

from that of an injured spouse for other damages, loss of consortium is also a

derivative claim in that the physical injuries or incapacities of one’s spouse give

rise to and establish the claim.” Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn.

App. 1989); see also Swafford v. City of Chattanooga, 743 S.W.2d 174, 178

(Tenn. App. 1987).

In contrast to the Tennessee approach, a small number of jurisdictions

view a claim for loss of consortium as an essentially different and independent

cause of action from the physically injured spouse. Based on that premise,

those jurisdictions apply the rule that the recovery awarded the spouse claiming

loss of consortium is not affected by the fault of the physically injured spouse.2

The clear majority of jurisdictions, however, hold that a loss of consortium

award must be reduced, and may be barred, by the comparative fault of the

physically injured spouse.3

2
See Schwen nen v. Abe ll, 430 N.W .2d 98 (Iow a 1988 ); Feltch v. General Rental Co., 421
N.E.2d 67 (Ma ss. 198 1); Brann v. Exeter Clinic, Inc , 498 A.2d 334 (N.H. 1985); Lantis v. Condon,
157 C al. Rptr. 22 ( Cal. App . 1979); Chr istie v. Max well, 696 P.2d 1256 (W ash. Ap p. 1985) .

3
See Eggert v. Working, 599 P.2d 1389 (Alaska 1979); Nelson v. Busby, 437 S.W.2d 799
(Ark. 1969); Lee v. C olorado Dept. Of He alth, 718 P.2d 221 (C olo. 1986 ); Mist v. Westin Hotels, Inc.,
738 P.2d 85 (Hawa i’i 1987); Runcorn v. Shearer Lumber Products, Inc., 690 P.2d 324 (Idaho 1984);
Blagg v. Illinois F.W.D. Truck and Equipment Co., 572 N.E. 2d 92 0 (Ill. 1991); McGuire v. Sifers , 681
P.2d 1025 (Kan. 1984) (s tatutory interpr etation); Thill v. Modern Erecting Co., 170 N.W.2d 865 (Minn.
1969); White v. Lunder, 225 N.W .2d 442 ( W is. 1975); W eave r v. M itche ll, 715 P.2d 1361 (Wyo.

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 Courts following the majority rule regard a claim for loss of consortium as

derivative for purposes of comparative fault, and explain their rationale as

follows:

[T]here must be a tort which gives rise to a cause of action that
must be maintained by the [physically] injured spouse in order for
the non-injured spouse to claim a loss of consortium. In other
words, the loss of consortium claim is dependent upon the
negligent injury of the other spouse who has the primary tort cause
of action.

Mist v. Westin Hotels, Inc., 738 P.2d at 90. While acknowledging that “each

spouse is equal and independent and suffers a personal loss when the other is

injured,” these courts emphasize that “does not alter the fact that the basis for

recovery for loss of consortium is interference with the continuance of a healthy

and happy marital life and injury to the conjugal relation.” Eggert v. Working, 699

P.2d at 1391.

According to the majority of jurisdictions, reducing the recovery of a

spouse claiming loss of consortium in proportion to the fault of the physically

injured spouse is the simplest and easiest way to achieve a just result and insure

that a loss resulting from an accident is distributed among those whose

negligence caused it. Id.

Fostering family harmony is another rationale for the majority approach,

which was articulated by the Colorado Supreme Court as follows:

If a claim for loss of consortium were viewed as totally independent
of the other spouse’s personal injury claim, there would be no

1986); Quadrone v. Pasco Petroleum Co. Inc., 752 P.2d 504 (Ariz. App . 1988); Hamm v. City of
Milton, 358 So .2d 121 ( Fla. App . 1978); Kolkman v. Falstaff Brewing Corp., 511 N.E.2d 478 (Ind. App.
1987); Tich eno r v. Sa ntillo, 527 A.2d 78 (N.J . Super. 1 987); M a id m an v. Stagg, 441 N.Y.S.2d 711
(N.Y. A.D. 198 1); Scattaregia v. Shin Shen Wu, 495 A.2d 552 (Pa. Super. 1985); Turnbow v.
Wasden , 608 F.S upp. 237 (D.Nev . 1985) (inte rpreting N evada la w).

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 reason to preclude one spouse from suing another for loss of
consortium or to prohibit the primary tortfeasor sued in a
consortium claim from impleading the spouse who suffered the
personal injuries. Placing one spouse in an adversarial relationship
to the other over the latter’s claim for loss of consortium introduces
an element of legal conflict into the marriage that, far from
contributing to marital harmony, will most likely have the effect of
fostering discord between the parties. The derivative approach
avoids much of this potential for conflict, since the recovery on a
consortium claim is dependent solely on the determination of the
relative degrees of negligence of the defendant and the spouse
who sued for the personal injuries.

Lee v. Colorado Dept. of Health, 718 P.2d at 232.

Because we are persuaded that the majority rule is the better reasoned

rule and is consistent with prior Tennessee decisions describing a claim for loss

of consortium as derivative, and consistent with our purpose in adopting

comparative fault which was to achieve fairness, McIntyre v. Balentine, 833

S.W.2d at 58, we conclude that the majority view, which holds that the fault of

the physically injured spouse either reduces or bars recovery on the other

spouse’s loss of consortium claim, should be adopted as the law in this State.

Applying the majority rule upon retrial will result in a reduction of Hoyt

Tuggle’s recovery for loss of consortium if Fannie Tuggle is determined to be

less than 50 percent at fault. However, both Hoyt and Fannie Tuggle will be

unable to recover if Fannie Tuggle is determined by a jury to be 50 percent or

more at fault.

CONCLUSION

Having determined that the clear and unambiguous language of the jury

challenge statute, Tenn. Code Ann. § 22-3-105(b) (1994 Repl.), provided for

additional peremptory challenges to the plaintiff with a derivative claim in this

case, and that the trial court error resulted in prejudice to the judicial process, we

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affirm the Court of Appeals’ judgment reversing and remanding for a new trial.

Upon retrial, any recovery for Hoyt Tuggle’s claim for loss of consortium shall be

reduced in proportion to the fault of Fannie Tuggle if less than 50 percent, and

barred completely if the jury determines that Fannie Tuggle’s fault equaled or

exceeded 50 percent. Costs of this appeal are taxed to the defendant, Allright

Parking Systems, Inc., for which execution may issue if necessary.

________________________________
RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Reid, Birch and White, JJ.

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