             IN THE COURT OF APPEALS OF TENNESSEE

                            FILED
                          November 8, 1999

                          Cecil Crowson, Jr.
                         Appellate Court Clerk
                     AT KNOXVILLE




WILLIE D. HUNLEY, JR., and wife ) C/A NO. 03A01-9902-CV-00049
BRENDA K. HUNLEY and            )
VELVAC, INC.,                   )
                                )
          Plaintiffs-Appellants, )
                                )
                                )
                                ) APPEAL AS OF RIGHT FROM THE
v.                              ) KNOX COUNTY CIRCUIT COURT
                                )
                                )
                                )
                                )
SILVER FURNITURE MANUFACTURING    )
CO. and TAB SERVICE CORPORATION, )
                                ) HONORABLE HAROLD WIMBERLY,
          Defendants-Appellees. ) JUDGE




                    DISSENTING OPINION

         I dissent from the majority’s holding that the

workers’ compensation carrier for Mr. Hunley’s employer is

subrogated, without further inquiry, to the proceeds of Mrs.

Hunley’s settlement of her loss of consortium claim that arose

out of the work-related injuries sustained by her husband.

         I start by observing that the compensation carrier’s

subrogation rights under the relevant statute only extend to


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two types of recovery:   a “recovery against [a third-party

tortfeasor] [1] by the worker, or [2] by those to whom such

worker’s right of action survives....”    See T.C.A. §

50-6-112(c)(1)(1991).    I will examine these two types of

recovery in the order stated.




                                                              Page 2
          In my opinion, it goes without saying that Mrs.

Hunley’s recovery by way of settlement of her loss of

consortium claim is not a “recovery...by the worker [i.e., Mr.

Hunley]”; rather, and obviously, it is a recovery by Mrs.

Hunley.   I recognize that Mrs. Hunley’s claim is a derivative

one in the sense that her husband’s “injuries or

incapacities...give rise to and establish [her] claim,” see

Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn.Ct.App. 1989)

(Anderson, J.); but this does not change the basic fact that

Mrs. Hunley’s claim for loss of consortium “is a cause of

action separate from” her husband’s cause of action.    Id.   In

my judgment, Mrs. Hunley’s claim for loss of consortium

clearly does not fall within the “recovery...by the worker”

language of T.C.A. § 50-6-112(c)(1).

          To buttress its holding in the instant case, the

majority cites and relies upon the unreported opinion of this

Court in the case of Sexton v. Tri-Cities Insulation, Inc.,

C/A No. 94, 1987 WL 7720 (Tenn.Ct.App., filed March 10, 1987).

I agree that Sexton holds that “an amount allocated to the

wife for loss of consortium [is not] outside the employer’s

subrogation rights[.]”   Id., 1987 WL 7720 at **1.   In my

judgment, Sexton is no longer — if it ever was — good law.     As

Judge Goddard pointed out in his separate concurring opinion

in Sexton, there were, at that time, “no cases supportive of

the conclusion reached” in the majority opinion in Sexton.     My

current research has not discovered any authority other than




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Sexton.   It should also be noted that Sexton relied upon the

case of Beam v. Maryland Casualty Co., 477 S.W.2d 510 (Tenn.

1972), a Supreme Court case holding that the employer’s

subrogation rights under T.C.A. § 50-




                                                                Page 4
914 (now T.C.A. § 50-6-112) extend to that portion of a

settlement of a wrongful death claim that inures to the

benefit of the children of the deceased employee.    I believe

that the holding in Beam was impliedly altered by the Supreme

Court’s decision in the recent case of Jordan v. Baptist Three

Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999).

         When Beam was decided, the Tennessee wrongful death

statutory provisions had basically been construed, for nearly

a century, as a survival type of wrongful death scheme.      Jones

v. Black, 539 S.W.2d 123, 124-25 (Tenn. 1976).   This being the

case, it was logical for the Supreme Court in Beam to hold

that the entire settlement of the wrongful death claim in that

case was subject to the employer’s subrogation rights.      If the

wrongful death claim is authorized under “survival”

legislation, then it is clear that a wrongful death recovery

is, in the language of the subrogation statute, a “

recovery...by those to whom such worker’s right of action

survives.”

         I believe that Jordan necessarily changes the ruling

in Beam because Jordan clearly holds that the Tennessee

wrongful death statutory scheme, in addition to authorizing a

survival action, “creates a cause of action that compensates

survivors for their losses.”   Jordan, 984 S.W.2d at 598.

(Emphasis added). Interestingly enough, Jordan holds that the

damages suffered by the decedent’s next-of-kin, as

differentiated from the deceased’s cause of action which




                                                                     Page 5
survives the latter’s death, include loss of consortium.   I

conclude from this that if the Supreme Court were presented

today with the facts in Beam, it would hold that the

non-economic loss of consortium action by the widow and




                                                               Page 6
children in their own right, as opposed to the damages in the

survival action, does not fall within the survival language of

the subrogation statute. 1

          Since I believe the holding in Jordan “trumps” the

holding in Beam, and since Sexton relied extensively on Beam,

I do not feel bound by Sexton.   As I have previously

indicated, I am not aware of any Supreme Court authority

holding that a compensation carrier’s subrogation rights

extend to a loss of consortium claim of an injured employee’s

spouse.

          In Jordan, the Supreme Court noted that loss of

consortium

          consists of several elements, encompassing
          not only tangible services provided by a
          family member, but also intangible
          benefits each family member receives from
          the continued existence of other family
          members. Such benefits include attention,
          guidance, care, protection, training,
          companionship, cooperation, affection,
          love, and in the case of a spouse, sexual
          relations.

Id. at 602.   As can be seen, these losses, being non-economic

in nature, are totally unrelated to the wage-based

compensation entitlement involved in the workers’ compensation

statutory scheme.   There is no “diminish[ing] [of] the employer

’s subrogation rights granted under [T.C.A. § 50-6-112(c)(1)],”

 see Heggie v. Cumberland Electric Membership Corp., 790

S.W.2d 284, 286-87 (Tenn.Ct.App. 1990), by a ruling that

prevents the compensation carrier from reaching these

non-economic damages.   This, coupled with the plain language




                                                                   Page 7
of the statute, convinces




                            Page 8
me that a recovery of consortium damages does not fall within

the statutory language, “recovery...by the worker.”

         It is clear that the second type of recovery

described in the subrogation statute — “recovery...by those to

whom such worker’s right of action survives” — has absolutely

no bearing on the decision in this case.   As I have previously

noted, the claim of a spouse of an injured worker for loss of

consortium is not “the worker’s right of action.”   In

addition, and more importantly, the concept of “surviv[al]” in

the language under discussion is obviously not relevant to a

worker, such as Mr. Hunley, whose injuries did not result in

death.

         I would hold that neither of the two types of

recovery described in the subrogation statute are present in

this case.

         My dissent is made with one caveat.   While I would

reverse the judgment of the trial court holding that the

compensation carrier has an absolute right to pursue its

subrogation rights as to Mrs. Hunley’s settlement, I would

remand for a hearing by the court below to determine if the

allocation of $200,000 to settle Mrs. Hunley’s claim is a

reasonable allocation of the total settlement of $400,000.

Since a tortfeasor and its liability insurance carrier

typically do not care how multiple plaintiffs divide up a

total settlement as long as all of the claims are released, I

do not believe that the willingness of a defendant or his

carrier to pay a certain amount in settlement of a claim is



                                                                  Page 9
prima facie evidence of its reasonableness.   Therefore, it

seems to me that a compensation carrier should have the right

to question whether an allocation of a part of a total

settlement to the consortium claim is reasonably related to

the parties’ respective injuries and losses or is just a sham

to partially avoid the carrier’s subrogation rights with

respect to the injured employee’s third-party claim.

         The sum and substance of my dissent can be reduced

to this finding:   I believe the language of T.C.A. §

50-6-112(c)(1), given its ordinary and usual meaning and

construed so as to avoid an unreasonable result, does not

extend the statutory subrogation rights of the compensation

carrier to the reasonable settlement value of Mrs. Hunley’s

separate claim for loss of consortium.



                                  __________________________
                                  Charles D. Susano, Jr., J.




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