                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
           Assigned On Briefs to the Western Section of the Court of Appeals
                                  on March 30, 2007

               CALVIN WESTERVELT v. STATE OF TENNESSEE

                     Direct Appeal from the Tennessee Claims Commission
                    No. 29399778    Stephanie Renee Reevers, Commissioner



                     No. M2006-00766-COA-R3-CV - Filed on April 18, 2007


Claimant sought to recover for injuries allegedly caused by an agency of the State. The Claims
Commission found claimant to be 65% at fault. Therefore, under the rule of comparative fault
adopted in McIntyre v. Ballentine, Claimant was precluded from an award of damages. Claimant
asks this Court to affirm in order that he may proceed with the appellate process. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

John A. Day, Rebecca C. Blair and Brandon E. Bass, Brentwood, Tennessee and Joe F. Gillespie,
Jr., Joelton, Tennessee, for the appellant, Calvin Westervelt.

Robert E. Cooper, Jr., Attorney General, Michael E. Moore, Solicitor General and Martha A.
Campbell, Associate Deputy Attorney General, for the State of Tennessee.

                                      MEMORANDUM OPINION1

       This case arises out of a motor vehicle collision in a Tennessee Department of Transportation
construction zone in which the claimant, Calvin Westervelt (Mr. Westervelt), collided head-on with
another vehicle. He contends that he was misdirected onto an interstate exit ramp by inadequate

       1
           RULE 10. M EM ORANDUM OPINION

                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
signs and pavement markings in the construction zone resulting in the collision with another vehicle.
The Claims Commission entered a judgment finding that the defendant State of Tennessee was at
fault, and that the State’s fault was a cause in fact and proximate cause of Mr. Westervelt’s injuries.
However, the Commission further held that the Claimant was at least 50% at fault for his injuries,
which precluded any recovery on his part.

        Mr. Westervelt filed a motion to alter or amend the judgment, asking the Commission to
specify the percentages of fault apportioned to each party, and to specify the total damages sustained
by the Claimant. In his motion, Mr. Westervelt informed the Commission of his intent to ask the
Supreme Court of Tennessee to adopt a system of pure comparative fault. The Commission granted
this motion, finding that the Claimant’s damages amounted to $1,325,000 and that the State of
Tennessee and the Claimant were respectively 35% and 65% at fault.

       Mr. Westervelt perfected a timely appeal to this Court and presents the following issue:

               Whether a system of pure comparative fault more fairly serves the stated
       intent of the Supreme Court of Tennessee that the courts should not fortuitously
       impose a degree of liability that is out of all proportion to fault.

The State presents the issue as follows:

               Whether the Claims Commission correctly apportioned fault under the
       prevailing law of Tennessee.

         The Claimant seeks to ask the Supreme Court of Tennessee to overturn that portion of
McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), which prevents a person who is 50% or more
at fault for the legal cause of his own injuries from recovering from an at fault tortfeasor. It is
Claimant’s position that if the supreme court adopts pure comparative fault, he would be entitled to
recover a proportionate share of his damages from the Defendant. The Claimant recognizes that only
the Supreme Court of Tennessee has the authority to overturn its precedent, and therefor asks this
Court to simply affirm the judgment against the Claimant so that the appellate process may continue.
It is the State’s position that because the Claimant concedes that its case was correctly decided by
the Claims Commission under current law, the judgment of the Commission should be affirmed.

        Recognizing, as do the parties, that this Court is without authority to overturn a portion of
an opinion of our supreme court, we affirm the judgment of the lower court. Costs of this appeal are
taxed to the appellant, Calvin Westervelt, and his surety.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE



                                                 -2-
