                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 15, 2001 Session

   CONSTANCE CHERRY AND MARCUS CHERRY, AS NEXT OF KIN OF
                STEVEN CHERRY, DECEASED
                          v.
                  STATE OF TENNESSEE

           An Appeal from the Tennessee Claims Commission, Western Division
                Claim No. 98001883      Randy C. Camp, Commissioner



                     No. W2001-00038-COA-R3-CV - Filed July 23, 2002


This is a wrongful death case. The decedent was a patient at a state mental health institution. He
died at the institution because he was not properly treated for urinary problems. The mother of the
decedent filed this wrongful death action against the State, seeking damages for the decedent’s loss
of earning capacity, pain and suffering, as well as her loss of consortium. The complaint was later
amended to add the decedent’s son as a plaintiff. The son sought damages only for his loss of
consortium. After a hearing, the Tennessee Claims Commission denied the mother any damages for
wrongful death, holding that persons of unequal kinship cannot both maintain a wrongful death
action relating to the same death. However, the Claims Commission awarded the mother her out-of-
pocket funeral expenses, and awarded $25,000 to the son for his loss of consortium. The mother and
son now appeal. We affirm, finding that, as between the mother and son of the decedent, the son has
the greater degree of kinship with the decedent, and therefore the mother cannot be awarded damages
for the decedent’s wrongful death.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee
                              Claims Commission is Affirmed

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and
DAVID R. FARMER , J., joined.

Ricky L. Boren, Jackson, Tennessee, for the appellants, Constance Cherry and Marcus Cherry, as
next of kin of Steven Cherry, deceased.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Martha
A. Campbell, Senior Counsel, for the appellee, State of Tennessee.
                                                    OPINION

       This is a tragic case with unfortunate procedural complications. Steven Cherry (“decedent”)
was a patient at the Western Mental Health Institute (“the Institute”) in Bolivar, Tennessee,
beginning in 1995 until his death on July 30, 1997, at 32 years of age. Prior to his death, he received
$1,000 per month in social security disability benefits.

       On July 25, 1997, the decedent visited his mother, Constance Cherry (“Constance”). On July
27, 1997, she returned him to the Institute and asked that he be checked for urinary problems. He
was never examined. On July 30, 1997, he was transported to the Bolivar Memorial Hospital, where
he died of diabetic ketoacidosis.

        On August 31, 1998, Constance filed a complaint against the State of Tennessee with the
Tennessee Claims Commission (“Commission”) seeking damages for burial expenses, pain and
suffering of Steven Cherry, the pecuniary value of Steven Cherry’s life, and “all other damages
allowed under Tennessee law.” On February 11, 1999, the complaint was amended to seek loss of
consortium damages on behalf of Marcus Cherry (“Marcus”), the three-year-old son of the decedent.
No other damages were sought on behalf of the decedent’s son. The State stipulated to liability. On
May 23, 2000, the case was tried before the Commission on the issue of damages only.

         At trial, the Commission heard evidence from two expert witnesses, both economists, who
testified regarding the pecuniary value of the decedent’s life. Dr. Parker Cashdollar (“Dr.
Cashdollar”),1 testified on behalf of the claimants. Based on the decedent’s lost earning capacity,
he asserted that the pecuniary value of the decedent’s life was $337,623. Dr. Cashdollar arrived at
that figure by assuming that Steven Cherry would have returned to the work force approximately one
year after the time of his death, and that he would have been employed in a position comparable to
the job he held from 1984 to 1994. Dr. Cashdollar further assumed that Steven Cherry would have
earned approximately $18,600 per year, and that he would have continued to work for approximately
23 more years until he was about 57 years old.

        In contrast, the State’s expert witness, Dr. Mark Cohen (“Dr. Cohen”),2 maintained that the
pecuniary value of Steven Cherry’s life could not be determined because there was no reasonable
basis on which to assume that Steven Cherry would ever have been able to return to the work force.
From his review of Dr. Cashdollar’s report, Dr. Cohen asserted that Dr. Cashdollar’s assumptions
regarding Steven Cherry’s lost earnings were theoretical and were not based on facts. Dr. Cohen
reviewed the medical reports of the physicians at the Institute and “found nothing in the record
indicating [the decedent] was planning to get out in a year or that there was even a reasonable


         1
          Dr. Cashdollar earned a Masters degree and a Ph.D . in agricultural econom ics in 1971 from the U niversity
of Tenn essee at Kn oxv ille.

         2
           Dr. Cohen earned a Masters degree and a Ph.D. in economics in 1985 from Carnegie-Melon University in
Pittsbu rgh, Pennsylvania.

                                                        -2-
prognosis of that.” Dr. Cohen also opined that it was unreasonable for Dr. Cashdollar to assume
that, immediately after his release, Steven Cherry would have been employed in a job similar to the
job he held prior to becoming a patient at the Institute, because Steven Cherry had been incarcerated
prior to his commitment in the Institute, and he was fired from his job for poor performance.

        The Claims Commission also heard evidence regarding Marcus’s relationship with his father
in order to determine the value of Marcus’s loss of parental consortium. The evidence showed that
Steven Cherry occasionally visited Marcus, but that the two never lived together. Generally, it is
undisputed that Marcus and his father had a limited relationship, consisting only of periodic visits.

        On November 22, 2000, the Commission entered an order awarding Constance $8,522 in
funeral expenses, which was undisputed, and awarding Marcus $25,000 for his loss of consortium.
The Commission denied wrongful death damages to Constance, explaining that it could not award
her such damages because two persons of unequal kinship cannot maintain a wrongful death action
for the same death. The degree of Marcus’s kinship to the decedent was considered superior to that
of Constance; consequently, the Commission dismissed Constance’s remaining claims. Other
wrongful death damages were not awarded to Marcus, because in the amended complaint, Marcus
sought damages only for his loss of consortium.

        The Commission also explained the reasoning behind its $25,000 award to Marcus for loss
of consortium. The Commission stated that, after reviewing “hundreds of pages of medical records,”
it concluded that Dr. Cohen was correct in asserting that “[t]here is no evidence to indicate [the
decedent] could or would be able to function on his own at any particular time in the future.”
However, the Commission recognized that, although Marcus’s relationship with the decedent was
limited, Marcus had suffered the loss of the parent-child relationship. Therefore, the Commission
found the pecuniary value of Marcus’s loss of consortium to be $25,000. December 19, 2000, the
Commission entered a supplemental order, finding no evidence in the medical records, such as
statements by the decedent to medical personnel, indicating that the decedent suffered pain prior to
his death. Constance and Marcus now appeal both of the Commission’s orders.

        Constance and Marcus assert on appeal that the Commission erred in holding that the
pecuniary value of the decedent’s life could not be determined, and that the Commission also erred
in declining to award damages for the decedent’s pain and suffering. In addition, they argue that the
Commission erred, as a matter of law, in determining that Constance was not entitled to damages
under Tennessee Code Annotated § 20-5-107 because her degree of kinship to the decedent was
inferior to that of Marcus.

        We review this direct appeal from the Claims Commission de novo with a presumption of
the correctness of the Commission’s factual findings. Dobson v. State, 23 S.W.3d 324, 328-29
(Tenn. Ct. App. 1999); Tenn. R. App. P. 13(d). We afford no such presumption to the
Commission’s legal conclusions; they are reviewed de novo. Ki v. State, No. W2000-02364-COA-
R3-CV, 2001 Tenn. App. LEXIS 611, at *12 (Tenn. Ct. App. Aug. 13, 2001).



                                                -3-
         We first address Constance’s argument that the Commission erred in determining that she
was not entitled to wrongful death damages because her kinship with the decedent was inferior to
that of Marcus. In reaching its conclusion, the Commission relied on Swanson ex rel Hatcher v.
Peterson, No. M1999-00241-COA-R3-CV, 2000 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 21,
2000). In Swanson, both the decedent’s widow and the decedent’s daughter from a former marriage
filed separate suits against the same defendants seeking recovery for the wrongful death of the
decedent. Swanson, 2000 Tenn. App. LEXIS 20, at *3-*4. Faced with two lawsuits, the defendants
moved to dismiss the daughter’s action, claiming that the widow’s right to maintain an action for
wrongful death was superior to that of the daughter. Id. at *4. The trial court agreed and dismissed
the daughter’s action. This Court affirmed, reasoning that “[n]o matter how many suits parties may
file to address an allegedly wrongful death, [the Tennessee wrongful death statutes] contemplate
only one cause of action. . . . Accordingly, multiple actions for a single wrongful death cannot be
maintained.” Id. at *6-*7. A wrongful death lawsuit may be valid when filed, but if it becomes
invalid because a person with superior kinship also files a wrongful death suit, “it is the court’s duty
to dismiss it.” Id. at *7-*8. In other words, if two wrongful death lawsuits are filed by persons of
unequal kinship, the court must dismiss the suit brought by the party with the inferior degree of
kinship. Id. at *7.

         The conclusion in Swanson compels a similar result in this case. The original complaint
filed by Constance stated a valid claim for wrongful death when it was filed.3 However, when son
Marcus was added as a plaintiff, Constance’s claim for damages for wrongful death became invalid
because Marcus has the greater degree of kinship with the decedent. Tennessee Code Annotated
§ 20-5-107 provides that a wrongful death suit can be brought by the personal representative of the
estate, the spouse of the deceased, “or, if there is no surviving spouse, by the children of the deceased
or by the next of kin.” Thus, the statute lists children first and mentions them specifically, whereas
a parent falls under the general “next of kin” category. Under these circumstances, a wrongful death
action by a child “trumps” an action by a parent. See id. (determining that a “spouse’s action trumps
the others”). Therefore, under the rule in Swanson, as between Constance and Marcus, only Marcus
can maintain a wrongful death claim for the death of his father, and the Commission correctly
dismissed Constance’s wrongful death claims. See also Matthews v. Mitchell, 705 S.W.2d 657, 660
(Tenn. Ct. App. 1985) (stating that “there can be but one cause of action for the wrongful death of
another”).

       Constance argues that the rule in Swanson should not apply because Jordan v. Baptist Three
Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999), had not been decided at that time. In Jordan,4 the


         3
        It is now clear in Ten nesse e that a parent can recover for the loss of con sortium of a child. See Hancock v.
Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 236 (Tenn. 200 1).

         4
           In an action for wrongful death, a plaintiff may seek damages for the “me ntal and p hysical suffering, loss of
time, and necessary expense resulting to the deceased from the personal injuries, and also the damages resulting to the
parties for w hose use and benefit the rig ht of action surv ives from the death consequ ent upon the inju ries received .”
                                                                                                            (con tinued...)

                                                           -4-
Tennessee Supreme Court for the first time held that loss of consortium damages are recoverable in
a wrongful death action as an element of the decedent’s pecuniary value. See Jordan, 984 S.W.2d
at 600-02. Since oral argument in this case, however, the Supreme Court decided Kline v. Eyrich,
69 S.W.3d 197 (Tenn. 2002). In Kline, the Court confirmed that, as between parties with unequal
degrees of kinship with the decedent, a wrongful death action can only be brought by the party with
the superior kinship, and that the right of action is “single, entire[,] and indivisible.” Kline, 69
S.W.3d at 207. The Kline Court held that the children of the decedent could not intervene in the
surviving spouse’s action to protect their loss of consortium rights, because “a claim for consortium
merely embodies one component of the decedent’s pecuniary value of life.” Id. at 208. Therefore,
only the party with the superior degree of kinship can recover damages for loss of consortium, and
Swanson cannot be distinguished in the manner argued by Constance.

       The amended complaint, adding Marcus as a plaintiff, seeks only loss of consortium damages
on his behalf. Indeed, Marcus was awarded $25,000 for his loss of consortium. As between
Constance and Marcus, Marcus was the only party entitled to seek wrongful death damages, such
as damages for the decedent’s pain and suffering, but such damages were not sought on his behalf.
Consequently, the Commission did not err in declining to award damages for the decedent’s pain
and suffering. This holding pretermits any other issues raised on appeal.

      The decision of the Claims Commission is affirmed. Costs are to be taxed to the appellants,
Constance Cherry and Marcus Cherry, and their surety, for which execution may issue, if necessary.



                                                                     ___________________________________
                                                                     HOLLY KIRBY LILLARD, JUDGE




         4
           (...continued)
Tenn. Code A nn. § 20-5-113; see Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 600 (Tenn. 1999). In Jordan,
the Tennessee Su preme C ourt interpreted this statute to perm it recovery under two categories of dam ages. “The first
classification permits recovery for injuries sustained by the deceased from the tim e of injury to the tim e of d eath,” such
as med ical expen ses, men tal and ph ysical pain an d suffering , funeral ex penses, and lost earn ing capacity. Jordan, 984
S.W.2d at 600. The second classification permits recovery of incidental dam ages suffered b y the claim ant as a result
of the deced ent’s d eath. Id. Those damages include the pecuniary value of the decedent’s life, which has been defined
to include considerations such as “the expectancy of life, the age, condition of health and strength, capacity for labor
and earning m one y thro ugh skill, any art, trade, p rofession and occupation or b usiness, and perso nal habits as to sobriety
and industry.” Id. (quoting Spencer v. A-1 Crane Serv., Inc., 880 S.W .2d 9 38, 9 43 (Ten n. 19 94)). The Co urt in Jordan
held specifically that pecu niary value also in cludes consortium dam ages, wh ich are intan gible benefits derived from the
life of an other including , among other things, “attention, guidance, care, protection, training, companionship,
cooperation, affection, [and] love.” Id. at 602.

                                                              -5-
