IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_______________________________________________
FILED
Oct. 4, 1995
SHERRI MANGRUM, Cecil Crowson, Jr.
Appellate Court Clerk
Plaintiff-Appellee,
Williamson Circuit #93594
Vs. C.A. No. 01A01-9505-CV-00183
FRANK DEAN OWENS,
Defendant-Appellant.
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FROM THE WILLIAMSON COUNTY CIRCUIT COURT
THE HONORABLE M. THOMAS TAYLOR, JR., SPECIAL JUDGE
Lela M. Hollabaugh of Manier, Herod, Hollabaugh
& Smith of Nashville
For Appellee
Jacky O. Bellar of Carthage
For Appellant
VACATED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, JUDGE
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
The sole question presented by this appeal is whether defendant, Frank
Dean Owens, is entitled to share with plaintiff, Sherri Mangrum, the proceeds of
a settlement for the wrongful death of their minor daughter, Lisa Michelle
Owens.
Plaintiff, Sherri Mangrum (hereinafter Mother), and defendant, Frank Dean
Owens (hereinafter Father), were husband and wife and had a child, Lisa
Michelle Owens. They were divorced in 1977, and Sherri Mangrum was
awarded custody of the minor child. Father was awarded visitation rights and
required to pay child support.
On September 26, 1992, the minor child was killed in an automobile
accident. Mother employed counsel and obtained a settlement from Auto
Owners Insurance Company in the amount of $300,000.00. Because of a
dispute as to whether Father should share in the settlement, Mother filed this
declaratory judgment action in the Williamson County Circuit Court and
deposited one-half of the settlement proceeds in the court registry. Mother then
filed a motion for summary judgment which the trial court granted, stating, "[A]
proper interpretation of the existing wrongful death act is that plaintiff, Sherri
Mangrum, in this case is the sole 'next of kin' for purposes of recovering for the
wrongful death of Lisa Michelle Owens . . . ." Father has appealed, and the only
issue for review is whether the trial court erred in granting summary judgment to
Mother.
The right of action for wrongful death is statutory. Black v. Roberts, 172
Tenn. 20, 21, 108 S.W.2d 1097, 1098 (1937). T.C.A. § 20-5-106 (a) (1994) provides:
(a) The right of action which a person, who dies from
injuries received from another, or whose death is
caused by the wrongful act, omission, or killing by
another, would have had against the wrongdoer, in
case death had not ensued, shall not abate or be
extinguished by the person's death but shall pass to
the person's surviving spouse and, in case there is no
surviving spouse, to the person's children or next of kin;
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or to the person's personal representative, for the
benefit of the person's surviving spouse or next of kin;
or to the person's natural parents or parent or next of
kin if at the time of death decedent was in the
custody of the natural parents or parent and had not
been legally surrendered by them, otherwise to the
person's legally adoptive parents or parent, or to the
administrator for the use and benefit of the adoptive
parents or parent; the funds recovered in either case
to be free from the claims of creditors.
Mother asserts that T.C.A. § 20-5-106(a) requires a finding that only the
custodial parent has a right of action and a right to the proceeds for the
wrongful death of the child. We must respectfully disagree.
In Spurling v. Johnson, 747 S.W.2d 350 (Tenn. App. 1987), the Middle Section
of this Court addressed an issue nearly identical to the one presented in the
case sub judice. In Spurling the Court considered whether a divorced father
was entitled to share with the mother in the proceeds of a judgment for the
wrongful death of their minor child. The Court held that the divorced father had
an equal right to share in the proceeds recovered. In Lett v. Bruce, 1986 WL 654
(Tenn. App. W.S. Jan. 7, 1986), the Western Section of this Court considered the
same question and held that the father had an equal right to share in the
proceeds. In so holding, this Court found that T.C.A. § 20-5-106 does not provide
for any preference to one natural parent over the other in connection with a
right of action for wrongful death of a minor child.1
We find nothing in T.C.A. § 20-5-106 which suggests that the right of action for
the wrongful death of a child belongs to one natural parent over the other. This
statute precisely states that the right of action is provided to the deceased's
1
We should also note that Father, along with Mother, is the "next of kin."
"In the law of descent and distribution the term 'next of kin' properly denotes the
persons nearest of kindred to the decedent, that is, those who are most nearly
related to him by blood." 211 Tenn. 572, 576, 366 S.W.2d 758, 760 (1963). "'Next
of kin' is the nearest blood relation of the deceased according to the law of
consanguinity. The natural parents of a deceased child are equally the next of
kin." Lett, 1986 WL 654 at 4 (citing Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700
(1954)).
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natural parents or parent or next of kin if the deceased at the time of death was
in the custody of the parents or a parent and "had not been legally surrendered
by them." It is conceded in this case that there has been no legal surrender by
either parent, and there are absolutely no adoptive parents involved.
The rule of statutory construction to which all others must yield is that the
intention of the legislature must prevail. Plough, Inc. v. Premier Pneumatics, Inc.,
660 S.W.2d 495, 498 (Tenn. App. 1983); City of Humboldt v. Morris, 579 S.W.2d 860,
863 (Tenn. App. 1978). "[L}egislative intent or purpose is to be ascertained
primarily from the natural and ordinary meaning of the language used, when
read in the context of the entire statute, without any forced or subtle
construction to limit or extend the import of the language." Worrall v. Kroger Co.,
545 S.W.2d 736, 738 (Tenn. 1977). The Court has a duty to construe a statute so
that no part will be inoperative, superfluous, void or insignificant. The Court must
give effect to every word, phrase, clause, and sentence of the Act in order to
achieve the legislature's intent, and it must construe a statute so that no section
will destroy another. City of Caryville v. Campbell County, 660 S.W.2d 510, 512
(Tenn. App. 1983); Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn. 1975).
From the language used in the statute, it is apparent that the Legislature
intended natural parents to share equally in any "funds recovered" as a result of
the wrongful death of a child. Construing the words of the statute in their usual
and ordinary sense, we think the statute grants the right of action for the
wrongful death of a child to the parents (if both are living and if not to the
surviving parent), if, at the time of the child's death, the child was in the custody
of both parents or one of the parents and there had been no termination of
parental rights by surrender.
Moreover, at the time the controversy in the instant case arose, T.C.A. §
20-5-107 provided in pertinent part:
Prosecution of action by representative or surviving
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spouse or next of kin.---The action may be instituted
by the personal representative of the deceased or by
the surviving spouse in her own name, or, if there be
no surviving spouse, by the children of the deceased
or by the next of kin; also, without the consent of the
personal representative, either may use his name in
bringing and prosecuting the suit, on giving bond and
security for costs, or in the form prescribed for paupers.
The personal representative shall not, in such case, be
responsible for costs, unless he signs his own individual
name to the prosecution bond.
T.C.A. § 20-5-107 (1980)
In 1994, the Legislature amended T.C.A. § 20-5-107 by adding, among
other things, the following:
(b) In no event shall a parent be permitted to recover
through an action commenced pursuant to
subsection (a) until all child support arrearages,
together with interest thereon at the legal rate of
interest computed from the date each payment was
due, shall have been paid in full to the parent ordered
to receive such support or to such parent's estate if
deceased.
The Legislature is presumed to know the state of the existing law in its
consideration and passage of legislation affecting that law. Neff v. Cherokee
Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986); Piper v. City of Memphis, 861 S.W.2d 832,
833 (Tenn. App. 1992). Implicit in the Legislature's amendment to T.C.A. § 20-5-
107 is its recognition that T.C.A. § 20-5-106 provides both parents, even a non-
custodial parent, a right of action for the wrongful death of a minor child.
Mother's complaint also alleges that Father expressly waived his right to
share in the settlement proceeds, and Father's answer denies this allegation.
The trial court made no determination regarding this issue, thus we remand for
such further proceedings as necessary to resolve this issue.
Accordingly the order of the trial court granting summary judgment to Mother
is vacated, and this case is remanded to the trial court for such further
proceedings as are necessary. Costs of this appeal are assessed against the
appellee.
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____________________________________
W. FRANK CRAWFORD, JUDGE
CONCUR:
_________________________________
ALAN E. HIGHERS, JUDGE
________________________________
DAVID R. FARMER, JUDGE
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