SCOTT GRAHAM HARTMAN, KAY       )
HARTMAN, his mother and duly    )
qualified conservator and guardian, and
                                )
CLEON HARTMAN,                  )
                                )              Tennessee Claims Commission
     Claimants/Appellants,      )              Middle Division
                                )              No. 85209
VS.                             )
                                )              Appeal No.
THE UNIVERSITY OF TENNESSEE and )              01A01-9804-BC-00196
THE STATE OF TENNESSEE,         )
                                )
     Defendants/Appellees.      )


                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                                             FILED
                                                September 14,
           APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                     AT NASHVILLE, TENNESSEE         1998

       HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION
                                                Cecil W. Crowson
                                                 Appellate Court
                                                      Clerk
Mr. Paul S. Davidson
424 Church Street, Suite 2800
Nashville, Tennessee 37219
ATTORNEY FOR CLAIMANTS/APPELLANTS


Mr. Ronald C. Leadbetter
Associate General Counsel
The University of Tennessee
810 Andy Holt Tower
Knoxville, Tennessee 37996-0184
ATTORNEYS FOR DEFENDANTS/APPELLANTS



                          AFFIRMED AND REMANDED.



                                          HENRY F. TODD
                                          PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
SCOTT GRAHM HARTMAN, KAY        )
HARTMAN, his mother and duly    )
qualified conservator and guardian, and
                                )
CLEON HARTMAN,                  )
                                )                     Tennessee Claims Commission
     Claimants/Appellants,      )                     Middle Division
                                )                     No. 85209
VS.                             )
                                )                     Appeal No.
THE UNIVERSITY OF TENNESSEE and )                     01A01-9804-BC-00196
THE STATE OF TENNESSEE,         )
                                )
     Defendants/Appellees.      )

                                     OPINION

       The captioned claimants have appealed from the decision of the Tennessee Claims

Commission denying their claim against the State and the University of Tennessee for the

catastrophic injury of a student athlete while engaged in athletic activity.



       The student was the beneficiary of a scholarship contract binding the University to

furnish him treatment for injuries received during athletic competition. The University

purchased from National Union Insurance Company, a policy of insurance insuring its liability

under scholarship contracts to the extent of the coverage provided by the policy. The father of

the student was an employee of BellSouth Corporation which provided for the families of its

employees health care insurance within designated limits.



       With the approval of the University of Tennessee, the student traveled to Lexington, Ky.,

to participate in a regional track and field competition sponsored and controlled by the

University of Kentucky. While performing “warming up” exercises in the space assigned to him

by the University of Kentucky, the student was struck in the head by a heavy missle thrown by

another student who was participating in the same regional competition. His serious injury will

require custodial care for the remainder of his life. The University of Tennessee has agreed to

furnish all needed future care. The present claim seeks payment of expenses of care and

treatment already furnished without any offer of care or payment therefor by the University of



                                               -2-
Tennessee. Claimants have neither paid for nor assumed liability for any care or treatment. So

far as this record shows, all of said expenses have been paid by the insurer of BellSouth

Corporation and National Union Insurance Co.



       Specifically, the BellSouth insurer paid $1,223,513. National Union reimbursed the

BellSouth insurer to the extent of $196,849 and has paid $27,822 direct to care furnishers. As

stated, the parents and the University of Tennessee have paid nothing.



       Neither the BellSouth insurer nor National Union Insurance Co. is a party to this

proceeding. However, appellants insist that they have a right to sue for the benefit of the insurers

which paid the expenses. The Commission held otherwise.



        Also, the claimants sought damages for pain, suffering and disability of the student and

loss of his society and services resulting from the negligence of the University in supervising and

protecting the student from injury. The University offered evidence disproving such negligence,

and the Commission held for the University on this issue.



        On appeal, the claimants present only one issue, which is:

                I.      Whether the Tennessee Claims Commission’s
                Summary Judgment Order dismissing Appellants’ contractual
                claim was in contravention of the Tennessee Rules of Civil
                Procedure and the Rules of the Tennessee Claims
                Commission, which both create a clear subrogation exception
                to the Real Party in Interest Rule.


However, appellants submit five distinct arguments in support of their issue. Appellants do not

challenge the negative ruling upon their negligence claim.



First Argument: No presumption of Correctness.

       Appellants rely upon preliminary rulings of the Commission upon motions of the parties

for partial summary judgments, which have not heretofore been mentioned in this opinion to

simplify the narrative.

                                                -3-
       Appellants filed a motion for a partial summary judgment requiring the University of

Tennessee to provide the medical treatment promised in its student athletic contract. The

Commission sustained this motion, and the University of Tennessee agreed to comply. This

does not appear to be at issue on appeal.



       On September 29, 1989, the Commission entered an order concluding as follows:

                       The Commission also concludes that the contract
               providingfor “medical attention” does not limit the manner in
               which the medical attention is provided. The Defendant has
               the option of providing medical attention either by paying for
               third parties to provide it, or providing it itself or a
               combination of the two. This may work a hardship upon the
               parents of the injured Plaintiff if the State deems it necessary
               to provide this medical attention at the medical school in
               Memphis, East Tennessee State, or the University hospital in
               Knoxville, but this option is left to the State. The quality of
               the medical attention appropriate to the injured Plaintiff’s
               condition. Exotic or experimental treatment are not included,
               but the same may be provided if the State desires.

                       13.     In short, the Commission concludes (1) that
               the reasonable interpretation of the expression “medical
               attention due to athletic participation” obligates the State to
               provide reasonable medical treatment appropriate to Scott
               Hartman’s condition without limitation as to time or dollar
               limit. (2) If it were necessary to resort to explanatory
               documents, the letter of August 4, 1986 is the only significant
               non-contractual document and it, in no way, suggests the
               contractual language is limited. (3) The law of contracts,
               under these facts, does not permit resort to oral negotiations
               prior to entering the contract, nor to oral intimations of the
               interpretation of the contract given after the injury, to
               interpret the contract language. However, if they were
               referred to, either or both decidedly favor the Plaintiffs’
               interpretation of the contract. (4) The State, through the
               University of Tennessee or otherwise, may provide the
               medical attention either (a) in kind by taking over the care of
               Scott Hartman using State medical employees, or (b) the State
               may pay third parties to do this.


Appellants’ brief states:

               In a separate civil action, Hartman judicially enforced the
               Commission’s 1989 Order requiring the University’s medical
               insurer to pay BellSouth (subrogee in part to Hartman’s
               contractual claims) $196,849.




                                               -4-
Appellants’ brief cites the final order of the Commission which states that the $196,849 payment

was made but does not mention the separate suit. No other information is cited or found as to

the parties or proceedings in the separate suit.



       Neither the Commission nor this Court can be expected to recognize as “the law of the

case” a phantom separate suit without authentic evidence of the proceedings and judgment

therein.



       Other than stated above, the preliminary partial summary orders of the Commission have

no relation to the correctness of the final order of the Coimmission upon the merits of appellants’

claim against the State of Tennessee and the University of Tennessee.



Second Argument: Doctrine of Subrogation.

       Appellants cite Dixon v. Morgan, 154 Tenn. 389, 285 S.W.2d 558 (1926) which has been

carefully examined without discovery of any relevance to the facts and proceedings in the present

case. Dixon involved a series of real estate transactions. The person entitled to subrogation was

a party to the case, and would have been a heavy loser if subrogation had not been granted.. In

the present case, the volunteer subrogors are seeking to recover in their own names funds which

may or may not be justly due a third party which is not a participant in this proceeding and the

basis of whose rights is not in this record.



       Moreover, the way is open for the third party subrogee to assert its rights, if any, in a

separate claim to the Claims Commission.



       No merit is found in appellants’ second argument.




Third Argument: No Loss to Claimants.

                                               -5-
         Appellants’ do not argue that they have suffered loss by paying medical expenses. They

argue that BellSouth’s insurer has suffered loss by paying same, and that said insurer has a right

to “step into Hartman’s shoes” to enforce Hartman’s claim. This argument ignores the legal

reality that Hartman cannot establish a claim for medical expenses without proof of payment of

same or liability therefor. In Wimberly v. American Casualty Co., Tenn. 1979, 584 S.W.2d 200,

plaintiff suffered a fire loss and sued his insurer to determine its subrogation rights against the

one who caused the fire. The facts and proceedings of that case distinguish it from the present

case.



         In Amos v. Central Coal Co., 38 Tenn. App. 626, 277 S.W.2d 457, a sublessee who made

payment of sublessor’s obligation to prevent forfeiture of the interest of both sublessor and

sublessee was granted rights of subrogation to the extent of payments so made. In the present

case, the Hartmans’ have made no payment, and the one who made the payment is not before this

Court.



Fourth Argument: Rules of Civil Procedure and of the Commission.

         TRCP Rule 17.01 and Commission Rule 0310-1-1-.17(1) do provide that a subrogor may

sue in his own name for the benefit of the subrogee, but neither rule dispenses with proof of the

claim which, in the present case, includes documentation of the claim. This record contains no

evidence of the insuring agreement upon which the subrogation claim is based. In Traveler’s

Insurance Company v. Williams, Tenn. 1976, 541 S.W.2d 587, the opinion quotes the provisions

of the policy regarding subrogation. The issue on appeal was the right of the attorney for the

insured to collect a fee from the insurer.



         Appellants cite an unpublished opinion of this Court wherein this Court stated:

                        The Church insured by Aetna was heavily damaged in
                a fire which occurred in 1992. Aetna paid the loss and
                thereafter filed this action in the name of the church to recoup
                its payment under principles of subrogation. The complaint
                was filed on November 3, 1992, with the knowledge of all
                parties that it was a subrogation action. The case was finally
                set for trial on December 1, 1995 before a jury. On

                                              -6-
               November 27, 1995, the trial court ordered that Aetna
               Insurance Co. should be a named party since it was the real
               party in interest.

                       Aetna objected to its involuntarily role, asserting that
               the case had been pending for three and one-half years when,
               three days before trial, it was summarily added as a plaintiff.
               We granted a Rule 10 application to consider the propriety of
               this action.
                                             ----
                       The Rule clearly authorizes Aetna Insurance Company
               to bring an action in the name of the party to whose rights it
               is subrogated without being named itself as a party to this
               lawsuit. See Travelers Ins. Co. v. Williams, 541 S.W.2d 587,
               590 (Tenn. 1976).


       In the present case, nothing is found in the record to show that either insurer brought this

action in the name of the injured parties to enforce subrogation rights and no evidence in this

record supports the contractual rights of either insurer to be subrogated to the rights of the

injured parties.



        No merit is found in appellants’ fourth and last issue.



        T.C.A. § 9-8-403(a)(1) provides in pertinent part as follows:

                           The decisions of the individual commissioners, or,
                   when rendered, decisions of the entire commission regarding
                   claims on the regular docket may be appealed to the
                   Tennessee Court of Appeals pursuant to Tennessee Rules of
                   Appellate Procedure, except that tax appeals shall go directly
                   to the Tennessee Supreme Court and workers compensation
                   cases shall be appealed pursuant to the procedure for other
                   worker’s compensation cases under § 50-6-225(e) - - - .

                          The evidence has been reviewed de nova pursuant to
                   TRAP Rule 13. It does not preponderate against the factual
                   findings of the commission and no error of law is found in the
                   conclusions of the commission.




        No grounds are found for reversal or modification of the orders of the Claims

Commission which are affirmed. Costs of this appeal are taxed against the appellants. The

cause is remanded to the Commission for any necessary further proceedings.



                                                  -7-
                       AFFIRMED AND REMANDED.




                                       _________________________________
                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM B. CAIN, JUDGE




                                 -8-
