Posted by: John Day on Sep 1, 2020

Journal Issue Date: Sept-Oct 2020

Journal Name: Vol.56 No. 9

 

The law of interpreting statutes? No self-respecting tort lawyer needs to spend much time thinking about that sort of thing; understanding the “thou shall stop at a stop sign” statute does not require an injury lawyer to spend $3,332 for the privilege of having Sutherland Statutes and Statutory Construction1 in her library. No — knowledge and application of the law of statutory construction has historically been an arrow in the quiver of lawyers who go to Chancery Court. 

Not anymore. Largely gone are the days when our legislature passed laws that created affirmative duties to not do things that posed a risk of injury or death to the citizenry — laws that put the meat on the bone of a negligence per se claim or created a private cause of action. Instead, in the last 44 years, and especially in the last 12, the Tennessee General Assembly has enacted scores of laws limiting the rights of those who want to bring tort claims. Starting with the first medical malpractice legislation in 19762 and including a recent modification to Tenn. Code Ann. §70-7-2053, the General Assembly has consistently chipped away at the right of an injured person to bring a tort claim, succeed on the claim or, if the claim is successful, collect a full measure of damages. Since 2008, about 150 such laws have been enacted in Tennessee.4

Let us leave for another day whether these laws reflect good public policy. The laws exist, which means that tort lawyers on both sides of the “v” need to bone-up on their knowledge of the law of statutory construction, 

Do you think I am exaggerating the importance of this issue? Consider the last four Tennessee Supreme Court opinions in tort cases:

  • Jackson v. Burrell5: Court reaffirmed the existence of the “common knowledge” exception to Tenn. Code Ann. §29-26-115 (ordinarily requiring expert testimony in health care liability cases) and held that if the common knowledge exception applied, a certificate of good faith was not required under Tenn. Code Ann. §29-26-122;
  • Franks v. Sykes6: Court interpreted the Tennessee Consumer Protection Act of 19777 to make it applicable to the business practices of health care providers. 
  • Martin v. Rolling Mills Hosp., LLC8: Court interpreted both the state health care liability notice provision and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
  • Young v. Frist Cardiology, PLCC9: Court interpreted Tenn. Code Ann. §29-26-115(b) (contiguous state rule) to determine whether a doctor who was granted a statutory license exemption to practice medicine in Tennessee was permitted to testify under the rule.10

Moreover, the court has at least three tort cases pending that involve statutory construction:

  • Bidwell v. Strait11: Court will construe Tenn. Code Ann. § 29-26-121(a)(5) concerning the duty of a health care provider who is given notice of a claim to advise plaintiff of a potential defendant and the interaction of this provision with Tenn. Code Ann. §20-1-119.
  • Coffman v. Armstrong Int’l, Inc.12: Court will examine, inter alia, the meaning of the words “improvement to real property” in the construction statute of repose (Tenn. Code Ann. §28-3-202).
  • Parveen v. ACG Couth Ins. Agency, LLC.13: Court will determine whether Tenn. Code Ann. §56-7-135(b), which makes it more difficult for insureds to sue insurers, also applies to claims made against insurance agents.

What is the law of statutory construction? An entire edition of the Tennessee Bar Journal could not cover the law on this subject. But we can start here:

The primary goal of statutory interpretation is to carry out legislative intent without expanding or restricting the intended scope of the statute. In determining legislative intent, we first must look to the text of the statute and give the words of the statute “their natural and ordinary meaning in the context in which they appear and in light of the statute’s general purpose.” When a statute’s language is clear and unambiguous, we enforce the statute as written; we need not consider other sources of information. We apply the plain meaning of a statute’s words in normal and accepted usage without a forced interpretation. We do not alter or amend statutes or substitute our policy judgment for that of the Legislature.14 

No, the law of statutory construction is not just for those before traditional courts of equity. The increasing codification of tort law now means that tort lawyers will be called upon to understand the “Rule of the Last Antecedent”15 and the “dog didn’t bark” canon.16 Do not get caught one arrow short.

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. He does not mind the need to add another arrow to his quiver, but he wants Santa to bring him a compound bow. 


NOTES

1. Yes, that is the actual price. https://store.legal.thomsonreuters.com/law-products/Practitioner-Treatises/Sutherland-Statutes- and-Statutory-Construction/p/100006976.
2. 1976 Pub. Acts, c. 299, §§ 1-13, 20, codified at Tenn. Code Ann. §§29-26-101 – 29-26-114.
3. The existing statute was modified to expressly permit the mandatory exculpatory agreements white water rafting companies use to be kept or displayed in electronic format.
4. This statistic comes from information gathered in Day, J.A., Compendium of Tennessee Tort Reform Statutes and Related Case Law 2008 – 2020 (9th Ed. 2020).
5. ---S.W.3d --- (Tenn. 2020).
6. 600 S.W.3d 908 (Tenn. 2020).
7. Tenn. Code Ann. §§ 47- 18-101 to -132 (2013 & Supp. 2019). The TCPA is one of the exceptions to the assertion in the text that the legislature has not been friendly to injured persons since 1975. However, the legislature has inflicted several blows to this law, most significantly in 2011 when it eliminated the private enforcement of the “unfair and deceptive” practices catch-all provision of § 47-18-104(b)(27). That change was made as a result of the Tennessee Civil Justice Act of 2011, 2011 Pub. Acts, c. 510 §14.
8. 600 S.W3d 322 (Tenn. 2020).
9. 599 S.W.3d 568 (Tenn. 2020).
10. As of July 20, the court issued three other opinions in 2020 in tort cases. Two decisions involved the constitutionality of a statute. Willeford v. Klepper, 597b S.W.3d 454 (Tenn. 2020) (constitutionality of provision permitting ex parte interviews of plaintiff’s treating doctors); and McClay v. Airport Management Services LLC, 596 S.W.3d 686 (Tenn. 2020) (constitutionality of cap on noneconomic damages). The final opinion of 2020 was Harmon v. Hickman Community Healthcare Services Inc., 594 S.W.3d 297 (Tenn. 2020).which involved the application of the abuse of discretion standard to a trial court’s decision on a Tenn. R. Civ. P. 59.04 motion.
11. 2018 WL 4464815 (Tenn. Ct. App. Aug. 22, 2019) (app. Granted Feb. 20,2020).
12. 2019 WL 3287067 (Tenn. Ct. App. Feb.20, 2019) ( app. granted Feb. 22, 2020).
13. 2019 WL 5700048 (Tenn. Ct. App. Nov. 5, 2019) (app. granted Mar. 26, 2020).
14. Coleman v. Olson, 551 S.W.3d 686, 693 (Tenn. 2018) (citations omitted). To get a head-start on understanding the addressing ambiguity in statutes, see Coffee Cty. Bd. of Educ. v. City of Tullahoma, 574 S.W.3d 832, 845-46 (Tenn. 2019).
15. State ex rel. McQueen v. Metro. Nashville Bd. of Pub. Education, 587 S.W. 3d 397, 405 (Tenn. Ct. App. 2019) (this rule provides that “a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows.”)
16. Chisom v. Roemer, 501 U.S. 380, 396 n. 23 (1991) (presumption that a prior legal rule should be retained if no one in legislative deliberations even mentioned the rule or discussed any changes in the rule).