Day on Torts
The Court of Appeals recently addressed the issue of which claims a parent who is not the primary residential parent may bring when his or her child has been injured. In Neale B/N/F Russell v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV (Tenn. Ct. App. July 28, 2015), a child was injured at an activity at defendant’s facility. The mother and father initially filed a joint action as next friends of the child, but they voluntarily dismissed that case and father subsequently filed alone. Father, as next friend of child, sought damages for permanent impairment, paint and suffering, medical expenses, and loss of earning capacity. Pursuant to the family’s parenting plan, father was not the primary residential parent.
Defendants filed a motion for summary judgment asserting that father lacked standing to bring the claims. The trial court agreed and granted summary judgment, which the Court of Appeals reversed in part and affirmed in part.
Tenn. Code Ann. § 20-1-105(b) states:
In case the father and mother of the minor child are living apart and one parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.
Father here argued that the Court should interpret this section to mean that “either or both parents living apart [have] standing to maintain an action provided that both exercise co-parenting time with the Child.” The Court rejected this interpretation, though, agreeing with defendant that § 36-6-410 of the Tennessee Code provides that “the primary residential parent in a permanent parenting plan is deemed to be the child’s custodian.” Because father was not the primary residential parent, he was not the legal custodian for purposes of § 20-1-105(b).
The Court concluded that “according to the plain language of this subsection, the primary residential parent is the one with ‘legal custody’ for the purpose of interpreting which parent has the ‘sole right to maintain an action for the expense and the actual loss of service resulting from an injury to the minor child[.]’” Because there was no evidence that father paid any of child’s medical expenses related to the injury at issue, the Court of Appeals affirmed summary judgment as to father’s claims for medical expenses and any claim he asserted for “compensation for loss of the Child’s service through a claim for loss of the Child’s earning capacity during minority[.]” Under Tennessee law, father as the non-primary residential parent lacked standing to bring those claims.
As to father’s claims as next friend of child for the damages to the child himself, however, the Court reversed summary judgment. The statute relied on “does not address the injured child’s right of action for damages related to his own person,” so the Court determined that “the trial court erred by finding that this statute barred the Child’s negligence claim brought by Father as next friend.” Here, mother decided not to pursue a claim on behalf of child. The Court determined that there was “no Tennessee rule of law that would preclude Father, as the Child’s parent, from maintaining an action as the Child’s next friend.” Accordingly, summary judgment as to the claims regarding child’s permanent impairment, pain and suffering, and loss of earning capacity in adulthood was reversed.
This seems to be both the fair and legally correct result in this case. While the statute cited bars a parent who is not the primary residential parent from bringing an action for medical expenses or actual losses due to a child’s injury, it does not bar claims brought on behalf of the child himself. If a child has been injured due to someone else’s fault, the child (through an adult) should be able to recover. If the trial court’s interpretation had stood and the primary residential parent was averse to bringing an action for whatever reason, the child would have no way to recover. Leaving an injured child’s potential recovery to one person’s sole discretion is problematic, and the Court of Appeals correctly interpreted this standing issue.
That said, I have one issue with the ruling. If the child’s medical expenses were paid by a health insurer that had the contractual or statutory right to subrogation, I think either parent should be able to assert the claim on the child’s behalf. Failure to assert that claim might give rise to a claim against the child by the health insurer, and the child’s loss of earning capacity and non-economic damages might get taken to satisfy the subrogation claim. That would be unjust. So, if the courts are going to permit an insurance company to assert such a claim against a child when the medical expense claim was not asserted in the court below, the non-primary residential parent should be able to assert the claim for the child, particularly if he or she purchased the insurance policy for the benefit of the child.