                                                                                          06/24/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                 April 16, 2019 Session

 SHALEEN FOWLER, ET AL. v. MORRISTOWN-HAMBLEN HOSPITAL
                  ASSOCIATION, ET AL.

                   Appeal from the Circuit Court for Hamblen County
                     No. 2016-CV-101 Thomas J. Wright, Judge
                       ___________________________________

                            No. E2018-00782-COA-R3-CV
                        ___________________________________


The plaintiffs, individually and as a proposed class action, alleged violations of
Tennessee Code Annotated section 68-11-262.1 The defendants asserted as a defense
that Tennessee Code Annotated section 1-3-119 precludes any private right of action
under section 68-11-262. Pursuant to Rule 24.04 of the Tennessee Rules of Civil
Procedure, the plaintiffs submitted a notice of claim that the statute was unconstitutional
and violated Article I, section 17 of the Tennessee Constitution. The State of Tennessee
was allowed to intervene in a limited capacity to defend the constitutionality of that
statute. In its consideration of the motion to dismiss for failure to state a claim upon
which relief can be granted, the trial court held that the statute did not violate the “Open
Courts” Clause of Article I, section 17. This holding necessitated a finding that
Tennessee Code Annotated section 68-11-262 did not give a private right of action and,
therefore, the plaintiffs did not have a cause of action. Accordingly, the motion to
dismiss for failure to state a claim was granted and the plaintiffs’ complaint was
dismissed with prejudice in its entirety. The plaintiffs now appeal the finding that
Tennessee Code Annotated section 1-3-119 does not violate Article I, section 17 of the
Tennessee Constitution. The defendants challenge the trial court’s decision that Plaintiffs
fell within the meaning of “uninsured patient” in Tennessee Code Annotated section 68-
11-262. We affirm the judgment of the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

       1
          Although violations of the Tennessee Consumer Protection Act were also asserted,
those claims are not addressed in this appeal.
F. Braxton Terry, Morristown, Tennessee, and W. Lewis Jenkins, Jr., Dyersburg,
Tennessee, for the appellants, Shaleen Fowler and Melissa Turner Livesay.

George E. Koontz and Richard T. Klingler, Chattanooga, Tennessee, and F. Michael
Fitzpatrick, Knoxville, Tennessee, for the appellees, Morristown-Hamblen Hospital
Association and Covenant Health.

Herbert H. Slatery, III, Attorney General and Reporter, Andree Sophia Blumstein,
Solicitor General, and Melissa Broadhag, Senior Assistant Attorney General, for the
intervenor-appellee, State of Tennessee.

                                      OPINION

                                 I. BACKGROUND

       Both Shaleen Fowler (“Appellant Fowler”) and Melissa Turner Livesay
(“Appellant Livesay”) (collectively “Appellants”) were involved in unrelated automobile
accidents in 2014. Each of Appellants was treated at Morristown-Hamblen County
Healthcare (“Morristown-Hamblen”) for their injuries. Covenant Health (“Covenant”)
(collectively with Morristown-Hamblen as “Appellees”) performs all billing and
collection for patients who receive services at Morristown-Hamblen. Each of Appellants
was treated as an “uninsured person” within the meaning of that term in Tennessee Code
Annotated section 68-11-262. They allege that Appellees charged them in excess of the
statutory rate applicable to uninsured persons in violation of section 68-11-262, which
provides in part as follows:

             (a)    Each healthcare facility licensed under this chapter
             shall be prohibited from requiring an uninsured patient to pay
             for services in an amount that exceeds one hundred seventy-
             five percent (175 %) of the cost for the services provided,
             calculated using the cost to charge ratio in the most recent
             joint annual report.

             (b)   As used in this section, the following terms shall have
             the meaning indicated:

                                          ***

                (3) “Uninsured patient” means a person with no public
                or private source of payment for medical services,
                including, but not limited to, [M]edicare, TennCare, a
                contract of insurance, an employer-sponsored health
                                          -2-
                  plan, or other enforceable obligation under which a
                  person is responsible for payment for healthcare
                  services provided to the patient. . . .

Tenn. Code Ann. § 68-11-262.2

        In response to Appellants’ complaint in this matter, Appellees filed a motion to
dismiss for failure to state a claim on which relief can be granted pursuant to Rule
12.02(6) of the Tennessee Rules of Civil Procedure. They asserted, inter alia, that “(a)
the [Appellants] have failed to plead facts sufficient to bring them within the scope of
Tenn. Code Ann. § 68-11-262; … (c) even if the [Appellants] are within the scope of
Tenn. Code Ann. § 68-11-262, there is no private right for recovery under Tenn. Code
Ann. § 68-11-262; ….” Appellants responded that the Tennessee Rules of Civil
Procedure only require a plaintiff asserting a violation of a statute refer to the statute and
that there is no requirement to show detailed factual allegations a plaintiff falls within the
coverage of a statute. Appellants further argued that there is an implied private right of
action in Tennessee Code Annotated section 68-11-262 because uninsured persons are
the direct and intended beneficiaries of the statute pursuant to precedent set by our
Supreme Court.3 One of the central disagreements between the parties at this point was
whether recovery from tort damages falls within the meaning of “payment for medical
services” under section 68-11-262. Appellees noted that Appellants received settlements
from the insurors of the tortfeasors in their respective automobile accidents. According
to Appellees, a patient who has been injured by a tortfeasor has an “enforceable
obligation” under which the tortfeasor is required to pay for medical services rendered to
a patient. Appellees argued that a person is “uninsured” under section 68-11-262 only if
there is no source of payment for healthcare services.

       As to Appellees’ later claimed defense that Tennessee Code Annotated section 1-
3-119 precludes a private right of action in this case, Appellants, pursuant to Rule 24.04
of the Tennessee Rules of Civil Procedure, submitted a notice of claim that section 1-3-
119 is unconstitutional and violates the Open Courts Clause in Article I, section 17 of the
Tennessee Constitution.

       2
          The statute was passed by the legislature in 2005, 2005 Pub. Acts, c. 474, § 27.
       3
          Appellants argue that the three factor analysis of Brown v. Tennessee Title Loans, Inc.,
328 S.W.3d 850, 855 (Tenn. 2010) is applicable. The Brown Court stated that “[i]f a statute does
not expressly create a private right of action, our next inquiry is whether the legislature otherwise
indicated an intention to imply such a right in the statute. In this analysis, we look to the
statutory structure and legislative history. Appropriate factors to consider include (1) whether
the party bringing the cause of action is an intended beneficiary within the protection of the
statute, (2) whether there is any indication of legislative intent, express or implied, to create or
deny the private right of action, and (3) whether implying such a remedy is consistent with the
underlying purposes of the legislation.” Id.
                                                -3-
      Tennessee Code Annotated section 1-3-119, passed by the legislature in 2012,
provides as follows:

      (a) In order for legislation enacted by the general assembly to create or
          confer a private right of action, the legislation must contain express
          language creating or conferring the right.

      (b) In the absence of the express language required by subsection (a), no
          court of this state, licensing board or administrative agency shall
          construe or interpret a statute to impliedly create or confer a private
          right of action except as otherwise provided in this section.

      (c) Nothing in this section shall be construed in any way to impair the
          ability of a court to:

                (1) Recognize a private right of action that was recognized before
                    July 1, 2012, by the courts of this state as arising under a statute,
                    unless the statute is amended after July 1, 2012, to expressly bar
                    the private right of action;

                (2) Create or confer a private right of action in the absence of a
                    controlling statute on each cause of action contained in the
                    complaint if such action is based on the common law;

                (3) Utilize the doctrine of negligence per se; or

                (4) Recognize a private right of action commenced by a state or local
                    governmental entity to collect any fees owed for a governmental
                    service or to recover such fees from a party that is obligated to
                    bill and collect fees owed others for a governmental service.

      (d) Nothing in this section shall be construed in any way to impair the
          ability of a state or local regulatory or licensing agency to enforce
          rules pursuant to the Uniform Administrative Procedures Act,
          compiled in title 4, chapter 5, if such rules were duly enacted through
          the rulemaking authority granted to any such agency by statute.

Tenn. Code Ann. § 1-3-119.4 Article I, section 17 of the Constitution of the State of
Tennessee reads in part as follows:

                That all courts shall be open; and every man, for an injury

      4
          2012 Pub. Acts, c. 759, § 1.
                                              -4-
              done him in his lands, goods, person or reputation, shall have
              remedy by due course of law, and right and justice
              administered without sale, denial, or delay.

Tenn. Const. Art. 1, § 17.

       The trial court issued an order allowing the State of Tennessee to intervene for the
limited purpose of defending the constitutionality of section 1-3-119. In the meantime,
the court ruled on the motion to dismiss. In its order, the court held that recovery for tort
damages does not constitute a “payment for medical services” within the meaning of that
term under section 68-11-262. Additionally, the trial court ruled that “the availability of
third-party liability insurance to pay tort damages does not remove an otherwise
‘uninsured patient’ from the coverage of Tenn. Code Ann. § 68-11-262.” As a secondary
matter, the trial court also found that “if the payment source a person possesses under
Tenn. Code Ann. § 68-11-262 is exhausted, such as with med-pay benefits, then the
person becomes an ‘uninsured patient’ for any balance upon exhaustion of the payment
source.” The court otherwise reserved for further hearing the issues of whether a private
cause of action to enforce section 68-11-262 exists and the constitutionality of section 1-
3-119.

        After the State entered an appearance and defended the constitutionality of section
1-3-119, the trial court issued an order finding that the statute did not violate the Open
Courts Clause of Article 1, section 17 of the Tennessee Constitution. The court further
determined that no private right of action exists under section 68-11-262 because that
same statute does not have express language conferring such a right. Additionally, the
trial court noted that a cause of action does not exist under the common law. Therefore,
the court granted the motion to dismiss and dismissed the case in its entirety with
prejudice. Appellants timely filed this appeal.


                                        II. ISSUES

       Appellants raise one issue for review which we have restated as follows:

              A. Whether the trial court erred in holding Tennessee Code
                 Annotated section 1-3-119 does not violate Article I,
                 section 17 of the Tennessee Constitution.

Appellees present an additional issue for review “[i]f, but only if, this [c]ourt reverses the
[trial court]’s Order upholding the constitutionality of T.C.A. § 13-119 and dismissal of
the Complaint.” We have restated the issue as follows:

              B. Whether the trial court erred in its interpretation of
                                        -5-
                 Tennessee Code Annotated section 68-11-262 and its
                 determination that Appellants were within the meaning of
                 “uninsured patient” under that statute.


                            III. STANDARD OF REVIEW

        The case below was dismissed with prejudice pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure. “A trial court should grant a motion to dismiss only
when it appears that the plaintiff can prove no set of facts in support of the claim that
would entitle the plaintiff to relief.” Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422, 426 (Tenn. 2011) (internal quotation marks omitted). The level of
scrutiny we employ when reviewing a dismissal for failure to state a claim upon which
relief can be granted is the same as the trial court; the appellate court must take the
allegations in the complaint as true and the complaint must be construed in favor of the
nonmoving party. Hardy v. Tournament Players Club at Southwind Inc,. 513 S.W.3d
427, 430 (Tenn. 2017); See also Webb, 346 S.W.3d at 426. Issues of constitutional
interpretation are questions of law, which we review de novo without any presumption of
correctness given to the legal conclusions of the courts below. Colonial Pipeline Co. v.
Morgan, 263 S.W.3d 827, 836 (Tenn. 2008).


                                   IV. DISCUSSION

      On the issue of constitutionality of a statute, our Supreme Court has indicated as
follows:

             It is well-settled in Tennessee that “courts do not decide
             constitutional questions unless resolution is absolutely
             necessary to determining the issues in the case and
             adjudicating the rights of the parties.” State v. Taylor, 70
             S.W.3d 717, 720 (Tenn. 2002) (citing Owens v. State, 908
             S.W.2d 923, 926 (Tenn. 1995)). Our charge is to uphold the
             constitutionality of a statute wherever possible. State v.
             Pickett, 211 S.W.3d 696, 700 (Tenn. 2007). “In evaluating the
             constitutionality of a statute, we begin with the presumption
             that an act of the General Assembly is constitutional.” Id.
             (quoting Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn.
             2003)); see also Vogel v. Wells Fargo Guard Servs., 937
             S.W.2d 856, 858 (Tenn. 1996) (“A statute comes to a court
             ‘clothed in a presumption of constitutionality [since] the
             Legislature does not intentionally pass an unconstitutional
             act.’” (quoting Cruz v. Chevrolet Grey Iron, Div. of Gen.
                                            -6-
              Motors Corp., 398 Mich. 117, 247 N.W.2d 764, 766 (1976))
              (alteration in original)). The presumption of constitutionality
              applies with even greater force when a party brings a facial
              challenge to the validity of a statute. Gallaher, 104 S.W.3d at
              459. In such an instance, the challenger must establish that
              no set of circumstances exists under which the statute, as
              written, would be valid. Lynch v. City of Jellico, 205 S.W.3d
              384, 390 (Tenn. 2006) (quoting Davis-Kidd Booksellers, Inc.
              v. McWherter, 866 S.W.2d 520, 525 (Tenn. 1993)); United
              States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L.
              Ed. 2d 697 (1987).

Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). Additionally, the Supreme Court has
clarified that “[i]n contrast to a facial challenge, which involves the constitutionality of
the statute as written, [a]n as applied challenge to the constitutionality of a statute is
evaluated considering how it operates in practice against the particular litigant and under
the facts of the instant case, not hypothetical facts in other situations.” Hughes v. Tenn.
Bd. of Prob. & Parole, 514 S.W.3d 707, 712 (Tenn. 2017) (quoting State v. Crank, 468
S.W.3d 15, 24 n.5 (Tenn. 2015)) (internal citations omitted). In the instant case,
Appellants assert an as-applied challenge to the constitutionality of Tennessee Code
Annotated section 1-3-119 and argue that the statute violates the Open Courts Clause
contained within Article I, section 17 of Tennessee Constitution (hereinafter referred to
as “Open Courts Clause”).

       Our Supreme Court has addressed the Open Courts Clause on numerous
occasions. In Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844 (1919), the
Court stated that the “provision of section 17 of article 1 of our State Constitution is a
mandate to the judiciary, and was not intended as a limitation of the legislative branch of
the government.” 143 Tenn. at 117. Additionally, the Court in Harrison v. Schrader,
569 S.W.2d 822 (Tenn. 1978) further elaborated on this issue and stated that “[t]he
constitutional guaranty providing for open courts and insuring a remedy for injuries does
not guaranty a remedy for every species of injury, but applies only to such injuries as
constitute violations of established law of which the courts can properly take
cognizance.” 549 S.W.2d at 827 (citing Barnes v. Kyle, 202 Tenn. 529, 535-536, 306
S.W.2d 1, 4 (1957) (internal quotations omitted)); See also Harmon v. Angus R. Jessup
Assocs., Inc., 619 S.W.2d 522, 524 (Tenn. 1981) (upholding the constitutionality of Tenn.
Code Ann. §§ 28-3-201 through 205 and reiterating its analysis in Harrison), Jones v.
Five Star Eng’g, Inc., 717 S.W.2d 882, 882-82 (Tenn. 1986) (reaffirming its analysis in
both Harrison and Harmon).

      In general, the General Assembly of Tennessee has broad powers to alter, amend,
and abolish statutory and common law rights. See, e.g., Mills v. Wong, 155 S.W.3d 916,
922-23 (Tenn. Ct. App. 2005); see also Nichols v. Benco Plastics, Inc., 225 Tenn. 334,
                                        -7-
469 S.W.2d 135 (1971). Additionally, the legislature has the broad authority to
determine which rights are personal in nature and enforceable through a private cause of
action. See generally Smith v. Pratt, No. M2008-01540-COA-R9-CV, 2009 WL
1086953 at *5-6 (Tenn. Ct. App. Apr. 22, 2009), Brumit v. Summar, No. 01A01-9703-
CV-00109, 1997 WL 764496 at *2 (Tenn. Ct. App. Dec. 12, 1997).

       In Appellants’ argument that section 1-3-119 does violate the Open Courts Clause,
they rely on a decision by our Supreme Court in Townsend v. Townsend, 7 Tenn. 1
(1821) and a law review article by former Justice William C. Koch.5 They assert that the
Open Courts Clause is a mandate, not only to the judiciary, but to the legislature as well.
The language in Townsend reads as follows:

              Our State Constitution, Art. 11, section 7, ordains “that all
              courts shall be open, and every man for an injury done him in
              his lands, goods, person, or reputation, shall have remedy by
              course of law, and right and justice administered without sale,
              denial, or delay.”6 This clause relates to every possible injury
              which a man may sustain and which affects him in respect to
              his real or personal property, or in respect to his person or
              reputation, and includes the right which is vested in him to
              demand the execution of a contract; which being a personal
              right to a chattel is, when performance is denied or withheld,
              an injury to him in his goods or chattels. And with respect to
              it right and justice is to be done, without sale, denial, or delay.
              In Magna Charta this restriction is upon royal power; in our
              country it is upon legislative and all other power. We must
              understand the meaning to be that, notwithstanding any act of
              the Legislature to the contrary, every man shall have “right
              and justice” in all cases, “without sale, denial, or delay.”

Id. at 14. Appellants further argue that “to the extent that dicta in Scott v. Nashville
Bridge Co., 223 S.W. 844 (Tenn. 1920) conflicts with the rule in Townsend, Scott is not
binding authority on this point or should be overruled.”

      Appellants’ arguments are not compelling. Even if the language set out in Scott is
merely dicta, that language has been reiterated and reechoed through multiple cases to
become the framework that guides us today. See Harrison, 569 S.W.2d at 827, Harmon,

       5
          William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical
Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333,
450 (1997).
        6
          This language is from the original “Open Courts” provision in the 1796 Tennessee
constitution and has almost identical to the current language set out in Art. I, section 17.
                                             -8-
619 S.W.2d at 524, Jones, 717 S.W.2d at 882-82. The decisions in Scott and its progeny,
as set out above, are the current framework we must follow. The arguments advanced by
Appellants simply do not comport with this framework and are not supported by
precedent in Tennessee case law. Any deviation from this framework is not in our
discretion; our Supreme Court is the proper judicial body to consider any change in this
precedence.7

        In Smith v. Pratt, this court addressed strikingly similar arguments to those
advanced by Appellants in the case at bar. There, as here, we explained that those
arguments are not supported by the Open Courts Clause case law and current precedent in
Tennessee. 2009 WL 1086953 at *5. We also noted that the Open Courts Clause is not a
limitation upon the legislature. Id.; see also Harrison, 569 S.W.2d at 827. We reiterated
that

              The constitutional guaranty providing for open courts and
              insuring a remedy for injuries does not guaranty a remedy for
              every species of injury, but applies only to such injuries as
              constitute violations of established law of which the courts
              can properly take cognizance.

Id. (quoting Barnes, 306 S.W.2d at 4 (quoting 16A C.J.S. Constitutional Law § 709c));
see also Harmon, 619 S.W.2d at 524). As noted in Smith, “the [Open Courts Clause]
tells courts they must provide remedies for legally defined injuries, but does not limit a
legislature’s power to define what is and is not an ‘injury.’” Id. (quoting David Schuman,
The Right to a Remedy, 65 TEMP. L. REV. 1197, 1206 (1992)). Thus, we maintain that
the Open Courts Clause is a mandate solely to the judiciary to provide remedies to
properly recognized causes of actions. In the instant case, the trial court correctly held
that the statute under review is not unconstitutional and that there is no statutory nor
common law cause of action. Therefore, Appellants do not have a cause of action and the
motion to dismiss was proper.

       Because we affirm the trial court’s upholding of the constitutionality of the statute,
which has the effect of disposing of the instant case in its entirety, it is not necessary to
discuss the construction of section 86-11-262 given to it by the trial court. The issue of
whether Appellants fall within the “uninsured patient” language of that statute is
pretermitted.


       7
         Appellees note in their brief that the Supreme Court has declined to review a number of
cases pertaining to the Open Courts Clause. Dellinger v. State of Tennessee, No. E2013-02094-
CCA-R3-ECN, 2015 WL 4931576 at *15-16 (Tenn. Crim. App. Aug. 18, 2015); Citimortgage,
Inc. v. Drake, 410 S.W.3d 797, 807 (Tenn. Ct. App. 2013); Estate of Schultz v. Munford, Inc.,
650 S.W.2d 37 (Tenn. Ct. App. 1982).
                                             -9-
                                   V. CONCLUSION

       For the reasons stated above, we affirm the decision of the trial court. The case is
remanded for such further proceedings as may be necessary. Costs of the appeal are
taxed to the appellants, Shaleen Fowler and Melissa Turner Livesay.



                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




                                          - 10 -
