Mangrum v. Owens

                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT NASHVILLE
             _______________________________________________
                                                                FILED
                                                                  Oct. 4, 1995
SHERRI MANGRUM,                                                 Cecil Crowson, Jr.
                                                                 Appellate Court Clerk
      Plaintiff-Appellee,
                                        Williamson Circuit #93594
Vs.                                     C.A. No. 01A01-9505-CV-00183

FRANK DEAN OWENS,

      Defendant-Appellant.
_________________________________________________________________________


               FROM THE WILLIAMSON COUNTY CIRCUIT COURT

          THE HONORABLE M. THOMAS TAYLOR, JR., SPECIAL JUDGE




              Lela M. Hollabaugh of Manier, Herod, Hollabaugh
                             & Smith of Nashville
                                For Appellee

                            Jacky O. Bellar of Carthage
                                  For Appellant




                            VACATED AND REMANDED

                                   Opinion filed:




                                        W. FRANK CRAWFORD, JUDGE

CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
      The sole question presented by this appeal is whether defendant, Frank

Dean Owens, is entitled to share with plaintiff, Sherri Mangrum, the proceeds of

a settlement for the wrongful death of their minor daughter, Lisa Michelle

Owens.

      Plaintiff, Sherri Mangrum (hereinafter Mother), and defendant, Frank Dean

Owens (hereinafter Father), were husband and wife and had a child, Lisa

Michelle Owens.     They were divorced in 1977, and Sherri Mangrum was

awarded custody of the minor child. Father was awarded visitation rights and

required to pay child support.

      On September 26, 1992, the minor child was killed in an automobile

accident. Mother employed counsel and obtained a settlement from Auto

Owners Insurance Company in the amount of $300,000.00. Because of a

dispute as to whether Father should share in the settlement, Mother filed this

declaratory judgment action in the Williamson County Circuit Court and

deposited one-half of the settlement proceeds in the court registry. Mother then

filed a motion for summary judgment which the trial court granted, stating, "[A]

proper interpretation of the existing wrongful death act is that plaintiff, Sherri

Mangrum, in this case is the sole 'next of kin' for purposes of recovering for the

wrongful death of Lisa Michelle Owens . . . ." Father has appealed, and the only

issue for review is whether the trial court erred in granting summary judgment to

Mother.

      The right of action for wrongful death is statutory. Black v. Roberts, 

, 21, 

, 1098 (1937). T.C.A. § 20-5-106 (a) (1994) provides:

             (a) The right of action which a person, who dies from
             injuries received from another, or whose death is
             caused by the wrongful act, omission, or killing by
             another, would have had against the wrongdoer, in
             case death had not ensued, shall not abate or be
             extinguished by the person's death but shall pass to
             the person's surviving spouse and, in case there is no
             surviving spouse, to the person's children or next of kin;

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             or to the person's personal representative, for the
             benefit of the person's surviving spouse or next of kin;
             or to the person's natural parents or parent or next of
             kin if at the time of death decedent was in the
             custody of the natural parents or parent and had not
             been legally surrendered by them, otherwise to the
             person's legally adoptive parents or parent, or to the
             administrator for the use and benefit of the adoptive
             parents or parent; the funds recovered in either case
             to be free from the claims of creditors.

      Mother asserts that T.C.A. § 20-5-106(a) requires a finding that only the

custodial parent has a right of action and a right to the proceeds for the

wrongful death of the child. We must respectfully disagree.

   In Spurling v. Johnson, 

 (Tenn. App. 1987), the Middle Section

of this Court addressed an issue nearly identical to the one presented in the

case sub judice. In Spurling the Court considered whether a divorced father

was entitled to share with the mother in the proceeds of a judgment for the

wrongful death of their minor child. The Court held that the divorced father had

an equal right to share in the proceeds recovered. In Lett v. Bruce, 

(Tenn. App. W.S. Jan. 7, 1986), the Western Section of this Court considered the

same question and held that the father had an equal right to share in the

proceeds. In so holding, this Court found that T.C.A. § 20-5-106 does not provide

for any preference to one natural parent over the other in connection with a

right of action for wrongful death of a minor child.1

  We find nothing in T.C.A. § 20-5-106 which suggests that the right of action for

the wrongful death of a child belongs to one natural parent over the other. This

statute precisely states that the right of action is provided to the deceased's



      1
         We should also note that Father, along with Mother, is the "next of kin."
"In the law of descent and distribution the term 'next of kin' properly denotes the
persons nearest of kindred to the decedent, that is, those who are most nearly
related to him by blood." 

, 576, 

, 760 (1963). "'Next
of kin' is the nearest blood relation of the deceased according to the law of
consanguinity. The natural parents of a deceased child are equally the next of
kin." Lett, 

 at 4 (citing Gogan v. Jones, 

, 

(1954)).

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natural parents or parent or next of kin if the deceased at the time of death was

in the custody of the parents or a parent and "had not been legally surrendered

by them." It is conceded in this case that there has been no legal surrender by

either parent, and there are absolutely no adoptive parents involved.

      The rule of statutory construction to which all others must yield is that the

intention of the legislature must prevail. Plough, Inc. v. Premier Pneumatics, Inc.,

, 498 (Tenn. App. 1983); City of Humboldt v. Morris, 

,

863 (Tenn. App. 1978). "[L}egislative intent or purpose is to be ascertained

primarily from the natural and ordinary meaning of the language used, when

read in the context of the entire statute, without any forced or subtle

construction to limit or extend the import of the language." Worrall v. Kroger Co.,

, 738 (Tenn. 1977). The Court has a duty to construe a statute so

that no part will be inoperative, superfluous, void or insignificant. The Court must

give effect to every word, phrase, clause, and sentence of the Act in order to

achieve the legislature's intent, and it must construe a statute so that no section

will destroy another. City of Caryville v. Campbell County, 

, 512

(Tenn. App. 1983); Tidwell v. Collins, 

, 676 (Tenn. 1975).

      From the language used in the statute, it is apparent that the Legislature

intended natural parents to share equally in any "funds recovered" as a result of

the wrongful death of a child. Construing the words of the statute in their usual

and ordinary sense, we think the statute grants the right of action for the

wrongful death of a child to the parents (if both are living and if not to the

surviving parent), if, at the time of the child's death, the child was in the custody

of both parents or one of the parents and there had been no termination of

parental rights by surrender.

      Moreover, at the time the controversy in the instant case arose, T.C.A. §

20-5-107 provided in pertinent part:

               Prosecution of action by representative or surviving

                                         4
             spouse or next of kin.---The action may be instituted
             by the personal representative of the deceased or by
             the surviving spouse in her own name, or, if there be
             no surviving spouse, by the children of the deceased
             or by the next of kin; also, without the consent of the
             personal representative, either may use his name in
             bringing and prosecuting the suit, on giving bond and
             security for costs, or in the form prescribed for paupers.
             The personal representative shall not, in such case, be
             responsible for costs, unless he signs his own individual
             name to the prosecution bond.

T.C.A. § 20-5-107 (1980)

      In 1994, the Legislature amended T.C.A. § 20-5-107 by adding, among

other things, the following:

             (b) In no event shall a parent be permitted to recover
             through an action commenced pursuant to
             subsection (a) until all child support arrearages,
             together with interest thereon at the legal rate of
             interest computed from the date each payment was
             due, shall have been paid in full to the parent ordered
             to receive such support or to such parent's estate if
             deceased.

       The Legislature is presumed to know the state of the existing law in its

consideration and passage of legislation affecting that law. Neff v. Cherokee

Ins. Co., 

, 4 (Tenn. 1986); Piper v. City of Memphis, 

,

833 (Tenn. App. 1992). Implicit in the Legislature's amendment to T.C.A. § 20-5-

107 is its recognition that T.C.A. § 20-5-106 provides both parents, even a non-

custodial parent, a right of action for the wrongful death of a minor child.

      Mother's complaint also alleges that Father expressly waived his right to

share in the settlement proceeds, and Father's answer denies this allegation.

The trial court made no determination regarding this issue, thus we remand for

such further proceedings as necessary to resolve this issue.

 Accordingly the order of the trial court granting summary judgment to Mother

is vacated, and this case is remanded to the trial court for such further

proceedings as are necessary. Costs of this appeal are assessed against the

appellee.


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                                    ____________________________________
                                    W. FRANK CRAWFORD, JUDGE
CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE

________________________________
DAVID R. FARMER, JUDGE




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