“There being no determination that [the defendant’s] alleged acts or omissions were outside the scope of his office or employment, [the plaintiff’s] waiver remains operative.”
How later courts described this case
- “There being no determination that [the defendant’s] alleged acts or omissions were outside the scope of his office or employment, [the plaintiff’s] waiver remains operative.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 19, 2016 Session
TIMOTHY SUMNER v. CAMPBELL CLINIC PC, ET AL.
Appeal from the Circuit Court for Shelby County
No. CT00444412 Robert L. Childers, Judge
________________________________
No. W2015-00580-COA-R3-CV – Filed March 29, 2016
________________________________
This lawsuit centers on allegations that the Plaintiff received improper medical care at the
hands of several Defendants. However, the present appeal concerns only the trial court‟s
dismissal of the Plaintiff‟s claims against a single Defendant, Dr. Jeffrey Kutsikovich (“Dr.
Kutsikovich”), a resident physician employed by the University of Tennessee. The trial court
was of the opinion that the Plaintiff‟s amended complaint stated only “tort medical battery
claims” against Dr. Kutsikovich and that these claims were barred by the applicable one-year
limitation period. On appeal, the Plaintiff asserts that the trial court erred in classifying his
claims and in determining that they were barred by the statute of limitations. Dr. Kutsikovich
contends that the trial court‟s dismissal was proper, not only for the stated grounds, but also
due to waiver under Tennessee Code Annotated section 9-8-307(b) and the doctrine of
sovereign immunity. Having reviewed the record transmitted to us, we conclude that the
Plaintiff waived his claims against Dr. Kutsikovich in this case by asserting a claim against
the State under the Tennessee Claims Commission Act. Accordingly, we affirm the trial
court‟s dismissal of Dr. Kutsikovich from this case, albeit for a different reason than held by
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O. GIBSON
and KENNY ARMSTRONG, JJ., joined.
Joseph Michael Cook, Germantown, Tennessee, for the appellant, Timothy Sumner.
Rebecca P. Tuttle, Memphis, Tennessee, for the appellee, Dr. Jeffrey Kutsikovich.
OPINION
Background
On July 19, 2011, Plaintiff Timothy Sumner (“Mr. Sumner”) was admitted to the
Regional Medical Center in Memphis in order to receive treatment for an injured right leg.1
As part of his treatment, Mr. Sumner was scheduled to undergo a surgery that involved the
taking of a bone graft from the iliac crest of his hip. Because Mr. Sumner had recently
undergone another surgery to repair a “right lower quadrant ventral hernia,” he and his
parents made it repeatedly known to his treating doctors, including Dr. Kutsikovich, that he
did not want the bone graft to be taken from his right hip in the July 19 surgery.
Notwithstanding these instructions, an incision was made into Mr. Sumner‟s right hip during
surgery in an attempt to take the bone graft.
As a result of the incision, Mr. Sumner‟s peritoneum and small bowel lacerated,
causing fecal material to escape from his bowel into his body cavity. This escape of fecal
material resulted in contamination to Mr. Sumner‟s organs, and within twenty four hours, his
condition had deteriorated to the point of “life threatening multisystem organ failure.”
Although Mr. Sumner was eventually discharged from Regional Medical Center on
November 23, 2011, his condition remained of such a grave nature that he had to be fed
through a feeding tube.
As a result of his injuries, Mr. Sumner soon initiated litigation on multiple fronts and
against multiple defendants. Because the only claims at issue in this appeal are those
asserted against Dr. Kutsikovich, we restrict our discussion accordingly. On July 5, 2012,
counsel for Mr. Sumner mailed a letter to Dr. Kutsikovich giving him notice, pursuant to
Tennessee Code Annotated section 29-26-121, that a medical malpractice claim would be
filed against him. The letter noted that the claim arose out of “medical negligence and
willful battery” committed by him and several Campbell Clinic, P.C. employees during the
July 19, 2011 surgical procedure. Moreover, the letter was accompanied by a list of all other
healthcare providers to whom written notice was being sent and stated that a HIPAA2
compliant medical authorization was enclosed.
On August 3, 2012, counsel for Mr. Sumner mailed a letter to the Tennessee Division
of Claims Administration giving notice of a claim pursuant to Tennessee Code Annotated
1
The pertinent background facts concerning Mr. Sumner‟s treatment are derived from allegations in his
amended complaint. They are assumed to be true at this stage in the proceedings.
2
HIPAA is an acronym for the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-
191, 110 Stat. 1936.
-2-
section 9-8-402. In that letter, counsel speculated that some of Mr. Sumner‟s treating doctors
might be employees of the University of Tennessee, and for that reason, he wanted to give
notice of a claim before the Claims Commission. The letter read as follows:
Dear Sirs:
I represent Mr. Timothy Todd Sumner in regard to severe personal
injuries which he sustained arising out of medical negligence and willful
battery for a surgical procedure performed on July 19, 2011 at the Regional
Medical Center at Memphis. As a direct and proximate cause of the medical
negligence and willful battery committed by the physicians performing the
surgery on July 19, 2011, Mr. Sumner‟s peritoneum and small bowel were
perforated as a result of which he quickly became septic resulting in multiple
organ failure. Since the date of the surgery Mr. Sumner has repeatedly been in
and out of hospitals in Memphis, Tennessee and Mississippi for various
procedures and continues to suffer greatly and be totally disabled. The
physicians who performed the surgery on July 19, 2011 were John C.
Weinlein, M.D., Jan Paul Szatkowski, M.D., Tim Michael Bert, M.D., and
Jeffery Kutsikovich, M.D.
On July 5, 2012, I mailed by certified mail, return receipt requested, the
notices letters and all enclosures (which included HIPAA compliant medical
authorizations and a list of the names and addresses of each health care
provider to whom I sent notice pursuant to T.C.A. §29-26-121) to each of
these physicians. The information and documentation which I had in my
possession as of that time indicated to me that Drs. Szatkowski, Bert and
Kutsikovich were employees of Campbell Clinic, P.C. at the time of the
surgery performed on July 19, 2011. My July 5, 2012 letters were sent to Drs.
Szatkowski, Bert and Kutsikovich at their offices at Campbell Clinic and the
return receipts for these letters were signed and returned to me, which
indicated to me that my information was correct. I am attaching a copy of the
notice letters which I sent to each of these physicians on July 5, 2012, as well
as copies of the return receipts for each physician.
I received information yesterday which may indicate that Drs.
Szatkowski, Bert and Kutsikovich were employees of the University of
Tennessee as of July 19, 2011 rather than Campbell Clinic. I do not presently
know whether or not this is correct but, out of an abundance of caution, I am
now presenting notice of this claim to you.
-3-
As indicated above, I believe that my client‟s claim involves causes of
action against the responsible parties for both medical negligence and willful
battery. I anticipate that I will be filing suit against the responsible parties in
the Circuit Court in Memphis but, if it turns out that the negligence of Drs.
Szatkowski, Bert and Kutsikovich are properly to be presented to the Claims
Commission, I hereby respectfully give notice of this claim. If you have any
questions concerning this matter, please call.
(emphasis added).
On October 16, 2012, Mr. Sumner filed a complaint in the Shelby County Circuit
Court seeking to recover for damages sustained in the July 19, 2011 surgery. The complaint
was filed against several doctors, including Dr. Kutsikovich, and Campbell Clinic, P.C.
Within the complaint, Mr. Sumner asserted claims for “Health Care Liability,” “Intentional
Medical Battery,” and “Punitive Damages.”
Following the filing of the complaint in Circuit Court, counsel for Mr. Sumner mailed
another letter to the Division of Claims Administration on November 2, 2012. This letter
noted that a complaint had been filed in Circuit Court on Mr. Sumner‟s behalf and stated that
a copy of the Circuit Court complaint was attached for the Division‟s review. Mr. Sumner‟s
counsel indicated that he wanted to provide the Division with the “current status” of a claim
against the State and noted that he was in the process of conducting discovery on several
doctors‟ employment status.
Subsequent to the November 2 letter, additional correspondence ensued between the
Division of Claims Administration and Mr. Sumner‟s counsel. Within this correspondence,
Mr. Sumner‟s counsel expressed his desire to pursue his asserted claim against the State in
light of his confirmation that some of Mr. Sumner‟s physicians, including Dr. Kutsikovich,
were State employees. Indeed, in a letter dated January 2, 2013, Mr. Sumner‟s counsel stated
as follows:
I have been advised . . . that Drs. Bert and Kutsikovich were residents
employed by the State of Tennessee a[t] the time of the incident from which
this litigation arises.
....
I am . . . advising you that I want to proceed with the claims of medical
negligence against the State of Tennessee in this matter.
-4-
As I believe you are aware, in the lawsuit I have filed in the Circuit
Court in Memphis I have made allegations of negligence and intentional
battery against all of the defendants. By pursuing the negligence claim against
the State of Tennessee in respect to the negligence of Drs. Bert and
Kutsikovich, I am not waiving my client‟s rights to pursue their claim against
these doctors in the medical malpractice lawsuit in Memphis arising out of
these doctors‟ intentional misconduct.
(emphasis added). We further observe that in a subsequent letter to the Division of Claims
Administration, dated January 30, 2013, Mr. Sumner‟s counsel rejected any qualifier as to his
intent to recover against the State. In pertinent part, he stated as follows: “I do not want there
to be any uncertainty as to whether or not I am filing a claim against the State of Tennessee
for medical negligence in this matter. It is my position that I have already properly done
so.” (emphasis added).
On April 5, 2013, Dr. Kutsikovich filed a motion to dismiss and/or for summary
judgment in Circuit Court seeking to dismiss the entirety of the action asserted against him
there. In a memorandum filed contemporaneously in support of the motion, Dr. Kutsikovich
argued, inter alia, that: (1) he was statutorily immune pursuant to Tennessee Code Annotated
section 9-8-307(h); (2) Mr. Sumner had waived any cause of action in Circuit Court by filing
a claim against the State in the Claims Commission; (3) the Circuit Court lawsuit was barred
by the doctrine of sovereign immunity; and (4) Mr. Sumner‟s medical battery claim was
barred by the applicable statute of limitations. No immediate action was taken with respect
to the motion.
On May 1, 2013, the Tennessee Claims Commission sent out a notice indicating that
Mr. Sumner‟s claim had been transferred to it from the Division of Claims Administration.
The record shows that the transfer was effectuated pursuant to the authority in Tennessee
Code Annotated section 9-8-402(c). Under that statute, the Division of Claims
Administration is responsible for investigating every claim and making “every effort to honor
or deny each claim within ninety (90) days of receipt of the notice.” Tenn. Code Ann. § 9-8-
402 (2012). If the Division does not honor or deny the claim within the ninety-day settlement
period, the statute states that it “shall automatically transfer the claim to the administrative
clerk of the claims commission.” Id. Following the transfer of his claim to the Claims
Commission, Mr. Sumner took steps to disclaim his pursuit of relief against the State. On
August 30, 2013, Mr. Sumner‟s counsel wrote a letter to the Claims Commission stating that
“[a]ny reference to, or inference of, any negligence on [Dr. Kutsikovich‟s] part in the claim
that was originally presented to the Claims Commission . . . is withdrawn.” Within the letter,
Mr. Sumner‟s counsel also stated that he was attaching an “Amendment to Complaint for
Healthcare Liability” and a motion to transfer Mr. Sumner‟s claim to Circuit Court. In the
-5-
“Amendment to Complaint for Healthcare Liability” that was subsequently filed with the
Claims Commission, Mr. Sumner attempted to clarify why he believed his case should be
litigated solely in Circuit Court:
Since this matter has been filed with the Tennessee Claims
Commission, Plaintiff‟s attorney and defense counsel for the State of
Tennessee have agreed to consolidate the [S]tate claim discovery with the
discovery being taken in the Circuit Court action pending in Memphis.
....
The discovery thus far obtained in this matter has . . . revealed that Dr.
Jeffrey Kutsikovich had very limited involvement in respect to both the time
and scope of his activities involving the July 19, 2011 surgical procedure from
which Plaintiff‟s cause of action arises but that his limited involvement was of
such a nature as to cause devastating consequences. By this amendment, as
well as the Amended Complaint which is being filed in the Circuit Court
lawsuit in Memphis . . . Plaintiff makes known that he makes no allegations of
negligence against Dr. Kutsikovich but, instead, Plaintiff‟s sole contention
against Dr. Jeffrey Kutsikovich is that his improper actions were willful and/or
intentional.
Plaintiff understands that the State of Tennessee . . . will not be liable
for the willful acts of Dr. Kutsikovich nor for the punitive damages being
sought against him and the State of Tennessee Claims Commission is,
therefore, without jurisdiction as to Plaintiff‟s sole cause of action against Dr.
Kutsikovich for his willful and intentional misconduct giving rise to Plaintiff‟s
injuries and damages. Plaintiff‟s attorney has made known to the
Commissioner, as well as defense counsel for the State of Tennessee, that he is
willing to enter into a consent order dismissing this claim for lack of
jurisdiction but defense counsel for the State of Tennessee has refused to do
so.
In February 2014, the Claims Commission entered an order dismissing Mr. Sumner‟s
claim for lack of jurisdiction. Incident to its decision to dismiss his claim, the Claims
Commission refused to make a ruling “on whether Dr. Kutsikovich was acting in the scope
and course of his employment” with respect to his alleged misconduct. There is no indication
that the order of the Claims Commission was ever appealed.
-6-
On May 5, 2014, Mr. Sumner filed an amended complaint in Circuit Court. As with
the original complaint, the amended complaint contained a “Health Care Liability” count, an
“Intentional Medical Battery” count, and a claim for punitive damages. With respect to Dr.
Kutsikovich, however, the amended complaint stated that it did not make any allegations of
negligence against him. Rather, it averred that “all actions taken by Dr. Kutsikovich were
willful and intentional.” In support of the denominated “Health Care Liability” count, the
amended complaint stated that Dr. Kutsikovich had “willfully and intentionally” failed to act
in accordance with the recognized standard of acceptable professional practice for physicians
in the area. Concerning the “Intentional Medical Battery” count, the amended complaint
averred that Mr. Sumner‟s treating doctors had “willfully and intentionally violated [his]
instructions [regarding the bone graft].”
On November 14, 2014, following the filing of Mr. Sumner‟s amended complaint, Dr.
Kutsikovich filed a supplemental memorandum in support of his motion to dismiss and/or for
summary judgment. In addition to containing many of the same arguments that were set forth
in Dr. Kutsikovich‟s April 5, 2013 memorandum of law, this memorandum contended that
Mr. Sumner‟s “willful” and “intentional” health care liability claim was not cognizable under
Tennessee law. A few months later, on January 20, 2015, Mr. Sumner filed a response
opposing Dr. Kutsikovich‟s motion to dismiss and/or for summary judgment.
On January 30, 2015, the trial court held a hearing on Dr. Kutsikovich‟s motion to
dismiss and/or for summary judgment. On April 30, 2015, it signed an order granting the
motion. Although the order was filed on April 30, it was entered nunc pro tunc to March 4,
2015. Within its order, the trial court stated that it had considered Dr. Kutsikovich‟s motion
under Rule 12.02(6) of the Tennessee Rules of Civil Procedure. In pertinent part, the trial
court was of the opinion that Mr. Sumner‟s amended complaint “ma[de] only intentional tort
medical battery claims against Dr. Kutsikovich . . . based upon alleged intentional acts . . .
preceding and during [the] surgery.” Moreover, it held that Mr. Sumner‟s allegations
concerning an “„intentional deviation from the standard of care‟” were not recognized in
Tennessee and should be dismissed as a matter of law. Regarding the pleaded medical
battery claims, the trial court concluded that they were barred by the applicable statute of
limitations. The trial court certified its order as a final judgment pursuant to Rule 54.02 of
the Tennessee Rules of Civil Procedure. The present appeal followed.
Issues Presented
In his appellate brief, Mr. Sumner presents four issues for our review, restated
verbatim as follows:
-7-
1. The trial court erred in ruling that Plaintiff does not have a health care liability
claim against Dr. Jeffrey Kutsikovich;
2. The trial court erred in its ruling that Plaintiff makes only a medical battery
claim against Dr. Kutsikovich in this matter;
3. The trial court erred in dismissing Plaintiff‟s claim for the intentional acts of
Dr. Kutsikovich; and
4. The trial court erred in dismissing Plaintiff‟s claim for medical battery.
In Dr. Kutsikovich‟s appellate brief, additional issues are presented for this Court‟s
consideration. Restated verbatim, these issues are as follows:
1. Whether the Court of Appeals may affirm dismissal of Plaintiff/Appellant‟s
(“Plaintiff‟s”) Claim on grounds, which were raised in the trial court, but are
other than those on which the trial court granted dismissal?
2. Whether Plaintiff‟s Claim filed against the State of Tennessee (“State”), based
upon the same acts or omissions as those alleged in Plaintiff‟s Circuit Court
lawsuit against Dr. Kutsikovich irrevocably waived Plaintiff‟s causes of action
against Dr. Kutsikovich, a State of Tennessee employee, pursuant to Tenn.
Code Ann. § 9-8-307(b)?
3. Whether Plaintiff‟s claims against Dr. Kutsikovich are barred by sovereign
immunity?
4. Whether Plaintiff‟s “intentional medical battery” claim, which is the only
legally cognizable claim against Dr. Kutsikovich, is barred by the one-year
statute of limitations pursuant to Tenn. Code Ann. §28-3-104(a)(1)?
Discussion
Although this appeal presents several matters for our review, we conclude that there is
one dispositive issue that pretermits an analysis of the substantive rulings made by the trial
court. Namely, we agree with Dr. Kutsikovich that the trial court lacked subject matter
jurisdiction over the claims filed against him. As will be explained more fully below, Mr.
Sumner‟s decision to assert a claim against the State pursuant to the Tennessee Claims
Commission Act waived any other causes of action that he had against Dr. Kutsikovich based
on the same acts or omissions. Although we rely on a different basis than the trial court in
-8-
concluding that the claims against Dr. Kutsikovich were properly dismissed, if a trial court
reaches the correct result, “its judgment is entitled to affirmance irrespective of the reasons
stated.” Clark v. Metro. Gov’t of Nashville & Davidson Cnty., 827 S.W.2d 312, 317 (Tenn.
Ct. App. 1991).
In his reply brief on appeal, Mr. Sumner argues that the question of his waiver under
the Claims Commission Act is not a proper topic of consideration for this Court. In pertinent
part, he argues that Dr. Kutsikovich waived the issue by asking the trial court not to rule on
it. Although it is true that Dr. Kutsikovich ultimately requested the trial court to refrain from
deciding the issue despite raising it in the trial court,3 Mr. Sumner‟s arguments are to no
avail. Subject matter jurisdiction cannot be waived “because it is the basis for the court‟s
authority to act.” Meighan v. U.S. Sprint Commc’ns. Co., 924 S.W.2d 632, 639 (Tenn. 1996)
(citation omitted). Indeed, “[t]he concept of subject matter jurisdiction implicates a court‟s
power to adjudicate a particular type of case or controversy.” Staats v. McKinnon, 206
S.W.3d 532, 541-42 (Tenn. Ct. App. 2006) (citations omitted). Whether explicitly or by
necessary implication, “[a] court derives its subject matter jurisdiction . . . from the
Tennessee Constitution or from legislative acts.” Id. (citations omitted).
In this case, Dr. Kutsikovich argues that the claims asserted against him in the trial
court were waived due to Mr. Sumner‟s decision to file a claim against the State under the
Tennessee Claims Commission Act. In response, Mr. Sumner contends that he never took an
action sufficient to trigger the waiver provision relied upon by Dr. Kutsikovich. Having
closely reviewed the record, we observe that the parties‟ disagreement is the result of a
difference of opinion on a question of law. It is undisputed that Mr. Sumner engaged in
correspondence with the Division of Claims Administration and that he made certain filings
in the Claim Commission. What remains in dispute, however, is whether his actions properly
triggered the statutory waiver that Dr. Kutsikovich prays this Court will find applicable.
When construing a statute, our goal is “to give full effect to the General Assembly‟s
purpose, stopping just short of exceeding its intended scope.” Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 526 (Tenn. 2010) (citations omitted). “The legislative intent and purpose are to
be ascertained primarily from the natural and ordinary meaning of the statutory language,
without a forced or subtle interpretation that would limit or extend the statute‟s application.”
State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000) (citation omitted). If the statutory
language is clear and unambiguous, its plain meaning controls. Seals v. H & F, Inc., 301
S.W.3d 237, 242 (Tenn. 2010) (citation omitted). “When a statute is ambiguous, however,
3
Dr. Kutsikovich made this request, stating that he believed an appeal pending before the Tennessee Supreme
Court would “directly address the issue” of when a claim is filed against the State. That appeal, Moreno v. City
of Clarksville, No. M2013-01465-SC-R11-CV, 2015 WL 5526858, --- S.W.3d ----, (Tenn. Sept. 18, 2015),
will be addressed infra.
-9-
we may refer to the broader statutory scheme, the history of the legislation, or other sources
to discern its meaning.” Id. (citation omitted). To the extent that there are conflicting
provisions in a statute that create an apparent ambiguity, the court‟s goal is to construe the
statute “in a way that avoids conflict and facilitates the harmonious operation of the law.”
Lee Med., Inc., 312 S.W.3d at 527 (citations omitted).
To reach a proper determination on the issue before us, we begin our analysis with an
overview of the relevant statutes in question. In 1984, the General Assembly enacted a
“comprehensive procedure for the filing, prosecution, and disposition of monetary claims
against the State.” Mullins v. State, 320 S.W.3d 273, 278-79 (Tenn. 2010). This procedure is
codified at Tennessee Code Annotated section 9-8-301 et seq., which is commonly known as
the Tennessee Claims Commission Act (“the Act”). In connection with the enacted statutory
scheme, “the Tennessee Claims Commission, consisting of one commissioner from each
grand division of the State, was created to hear and determine claims against the State.” Id.
at 279 (citation omitted). The categories of claims for which the State may be liable under
the Act are enumerated in Tennessee Code Annotated section 9-8-307(a). Included in the list
of claims are claims for medical malpractice committed by a state employee. Under the
current version of the statute, the term “medical malpractice” has been replaced with “health
care liability.” See Tenn. Code Ann. § 9-8-307(a)(1)(D)(Supp. 2015).
Although section 9-8-307(a) purports to give “exclusive jurisdiction” to the Claims
Commission over the monetary claims enumerated thereunder, see Tenn. Code Ann. § 9-8-
307(a), we have noted previously that the term “exclusive” is somewhat misleading
considering the scope of the larger statutory scheme. See Hunter v. State, 1993 WL 133240,
at *1 (Tenn. Ct. App. Apr. 28, 1993). Indeed, most plaintiffs seeking to pursue claims
against the State cannot begin their efforts by seeking relief directly before the Claims
Commission. Rather, the statutory scheme mandates that they must generally turn first to the
Division of Claims Administration by filing a written notice of claim there. See Tenn. Code
Ann. § 9-8-402(a)(1) (“The claimant must give written notice of the claimant‟s claim to the
division of claims administration as a condition precedent to recovery, except claims for
recovery of taxes shall be filed directly with the administrative clerk of the claims
commission.”). The Rules of the Claims Commission reinforce this statutory requirement.
After noting that Rule 3 of the Tennessee Rules of Civil Procedure is not followed by the
Commission, the Commission‟s Rules state as follows: “Claims before the Commission are
commenced in the manner described in T.C.A. §§9-8-301 et seq. and 401 et seq. especially
402.” Tenn. Comp. R. & Regs. 0310-01-01-.01(2) (italics in original). In further outlining
the procedure, the Commission‟s Rules provide that all actions other than tax claims “are
commenced by filing a written notice of claim (see T.C.A. §9-8-402 for requirements) with
the Division of Claims Administration.” Id. (italics in original).
- 10 -
Once a claim is filed with the Division of Claims Administration, the Division has the
authority to honor or deny it. Thereafter, a claimant may pursue his or her claim before the
Claims Commission itself, whether by direct action or automatic transfer. In this regard,
Tennessee Code Annotated section 9-8-402(c) provides as follows:
The division of claims administration shall investigate every claim and
shall make every effort to honor or deny each claim within ninety (90) days of
receipt of the notice. If the claim is denied, the division shall so notify the
claimant and inform the claimant of the reasons therefor and of the claimant‟s
right to file a claim with the claims commission within ninety (90) days of the
date of the denial notice. If the claim is honored and the damages may be
ascertained within the ninety-day settlement period, the division shall so notify
the claimant, and inform the claimant of the conditions of the settlement offer,
and of the claimant‟s right to file such claimant‟s claim with the claims
commission within ninety (90) days of the date of the settlement notice if the
conditions of the settlement offer are unacceptable. If the claim is honored and
the amount of damages may not be ascertained within the ninety-day
settlement period because evidence of loss will be obtained after the ninetieth
day of the settlement period, the division shall so notify the claimant and
inform the claimant of the claimant‟s right to file a claim with the claims
commission within ninety (90) days of the date the division forwards final
compensation to the claimant or upon written request for transfer to the
commission by that claimant; provided, that final compensation shall be
forwarded to the claimant within one (1) year of the date of the settlement
notice. If the division fails to honor or deny the claim within the ninety-day
settlement period, the division shall automatically transfer the claim to the
administrative clerk of the claims commission.
Tenn. Code Ann. § 9-8-402(c).
Although the Act operates as a waiver of the State‟s sovereign immunity and provides
claimants with a “deep pocket” that they would not otherwise be able to pursue, it also
“imposes a strict election of remedies requirement.” Haley v. Univ. of Tenn.-Knoxville, 188
S.W.3d 518, 524 (Tenn. 2006). Indeed, pursuant to Tennessee Code Annotated section 9-8-
307(b), “[c]laims against the state filed pursuant to subsection (a) shall operate as a waiver of
any cause of action, based on the same act or omission, which the claimant has against any
state officer or employee.” Tenn. Code Ann. § 9-8-307(b). The waiver is only void “if the
commission determines that the act or omission was not within the scope of the officer‟s or
employee‟s office or employment.” Id. Although there is a dispute between the parties as to
what triggers the waiver under this statutory section, we are of the opinion that in non-tax
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cases such as this, the waiver is activated by the filing of the notice of claim in the Division
of Claims Administration. Under the terms of the waiver provision, a waiver is stated to
occur when there are “[c]laims against the state filed pursuant to subsection (a).” Id. § 9-8-
307(b). We note that the referenced “subsection (a)” is the statutory provision containing the
list of claims for which the State has waived immunity, over which the Commission is stated
to have “exclusive” jurisdiction. See id. § 9-8-307(a). We further note that to pursue
recovery on any of these claims, save those for the recovery of taxes, a claimant must first
file a notice of claim in the Division of Claims Administration. Id. § 9-8-402(a). Indeed, the
Rules of the Claims Commission specifically provide that all “[non-tax] [c]laims before the
Commission” “are commenced by filing a written notice of claim . . . with the Division of
Claims Administration.” Tenn. Comp. R. & Regs. 0310-01-01-.01(2). Considering the
statutory scheme as a whole, we are compelled to conclude that the filing of a notice of claim
in the Division of Claims Administration constitutes a “[c]laim[] against the state filed
pursuant to subsection (a).” Tenn. Code Ann. § 9-8-307(b).
We fail to see how a waiver is triggered at any other point in the claims process for
non-tax claims. As we have previously noted, because the Claims Commission Act provides
claimants with a cause of action against the State, a “deep pocket” that they would not
otherwise be able to pursue, “it imposes a strict election of remedies requirement.” Haley,
188 S.W.3d at 524. Under the statutory scheme, a claimant elects to pursue relief against the
State when he or she files a notice of claim with the Division of Claims Administration.
Indeed, once the notice of claim is filed, the Division of Claims Administration has the
authority to honor it. See Tenn. Code Ann. § 9-8-402(c).
Although the waiver provision has been previously discussed on a number of
occasions, as far as our research has revealed, no Tennessee court has specifically discussed
whether the filing of the notice of claim is what triggers the waiver in non-tax cases.4 We do
observe, however, that the issue has been addressed in a couple of unpublished opinions by
the United States Court of Appeals for the Sixth Circuit. See Stamps v. Matthews, 142 F.3d
436, 1998 WL 57482 (6th Cir. Feb. 3, 1998) (unpublished table decision); Estate of Drew v.
U.T. Reg’l Med. Ctr. Hosp., 121 F.3d 707, 1997 WL 441752 (6th Cir. Aug. 5, 1997)
4
In this vein, we are of the opinion that our interpretation is not contradicted by the Tennessee Supreme
Court‟s prior statement that “[t]he moment the plaintiff‟s claim is „filed‟ with the Claims Commission, the
plaintiff has waived all other causes of action[.]” Haley, 188 S.W.3d at 524. In Haley, the Supreme Court was
not specifically considering whether the filing of a notice of claim in the Division of Claims Administration
activated the waiver. In any event, as we have already explained, in non-tax cases, a claimant pursues recovery
against the State before the Commission by filing a notice of claim in the Division of Claims Administration.
In pertinent part, the Rules of the Commission specifically provide as follows: “Claims before the Commission
are commenced” “by filing a written notice of claim . . . with the Division of Claims Administration.” Tenn.
Comp. R. & Regs. 0310-01-01-.01(2).
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(unpublished table decision). Although certainly not binding on this Court, see Townes v.
Sunbeam Oster Co., Inc., 50 S.W.3d 446, 452 (Tenn. Ct. App. 2001) (“When a federal court
undertakes to decide a state law question in the absence of authoritative state precedent, the
state courts are not bound to follow the federal court‟s decision.”), we note that the Sixth
Circuit‟s analysis has led it to reach the same conclusion that we have herein. In pertinent
part, the Sixth Circuit reasoned as follows in its Estate of Drew decision:
Under both Tennessee and federal law, parties bringing claims against
the state are “presumed to know the law and the rules of the commission.”
Tuck v. State, No. 03A01-9510-BC-00355, 1996 WL 310012, at *3 (Tenn. Ct.
App. June 11, 1996); Leaman, 825 F.2d at 956. According to the Rules of the
Tennessee Claims Commission, “All other actions [besides tax claims] are
commenced by filing written notice of a claim (see T.C.A. § 9-8-402 for
requirements) with the Division of Claims Administration.” Rule 0310-1-1-
.01(2)(b). On their face, then, the rules of the Commission state that a claim is
commenced at the time of the filing with the Division. Although the courts
have not specifically held that filing with the Division of Claims
Administration constitutes filing for the purposes of the Claims Commission
Act and thus waiving other claims, they have consistently appeared to treat
Division of Claims Administration filings as such. See e.g., Hiefner v.
University of Tenn., 914 F.Supp. 1513, 1516 (E.D. Tenn. 1995); Mirabella v.
University of Tenn., 915 F.Supp. 9:25, 926-27 (E.D. Tenn. 1994); Worley v.
State, No. 02A01-9312-BC-00267, 1995 WL 702792, at *2 (Tenn. Ct. App.
Nov. 28, 1995); Hunter v. State, No. 104743, 1993 WL 133240, at * 1-2
(Tenn. Ct. App. Apr. 28, 1993).
....
Also supporting the conclusion that filing a written notice with the
Division constitutes a filing with the Commission, the Claims Commission act
itself states that “[t]he filing of the notice [with the Division of Claims
Administration] by the claimant tolls all statutes of limitation as to other
persons potentially liable to the claimant due to the occurrence from which the
claim before the commission arises.” Tenn.Code. Ann. § 9-8-402(b). It is
highly unlikely that the statute of limitations would be tolled but that, without
any mention in the statute whatsoever, a different date for the effectiveness of
the waiver would apply. Additionally, the provision for transfer in § 9-8-
402(c) provides that the Division of Claims Administration must “investigate
every claim and shall make every effort to honor or deny each claim within
ninety (90) days of receipt of notice....” (Emphasis added.) This subsection
further provides that “[i]f the division fails to honor or deny the claim within
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the ninety-day settlement period, the division shall automatically transfer the
claim to the claims commission.” Id. (emphasis added).
Estate of Drew, 1997 WL 441752, at *4.
In support of his position that he did not waive his right to pursue claims against Dr.
Kutsikovich in Circuit Court, Mr. Sumner largely relies on two cases. Having reviewed these
cases, however, we conclude that they create no conflict with our analysis herein, as both are
distinguishable on their facts. The first case relied on by Mr. Sumner is Moreno v. City of
Clarksville, No. M2013-01465-SC-R11-CV, 2015 WL 5526858, --- S.W.3d ----, (Tenn. Sept.
18, 2015). As previously noted, Moreno was pending at the time that the trial court ruled on
Dr. Kutsikovich‟s motion to dismiss and/or for summary judgment. Because Dr. Kutsikovich
believed that Moreno would provide guidance on the question of waiver under Tennessee
Code Annotated section 9-8-307(b), he requested the trial court hold any ruling on the issue
in abeyance.
Although Moreno did generally examine the procedure for filing claims in the Claims
Commission, it is inapposite to our discussion herein. In Moreno, the Supreme Court did not
consider the issue of statutory waiver under section 9-8-307. Rather, it primarily considered
whether the notice of claim filed in the Division of Claims Administration is sufficient to
satisfy the “original complaint” requirement in Tennessee Code Annotated section 20-1-119.5
5
This statute provides for a “grace period” in suing defendants even where the statute of limitations has
otherwise elapsed. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 370 (Tenn. 2012). In relevant part, it states as
follows:
(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an
original complaint initiating a suit filed within the applicable statute of limitations, or named
in an amended complaint filed within the applicable statute of limitations, alleges in an
answer or amended answer to the original or amended complaint that a person not a party to
the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery,
and if the plaintiff‟s cause or causes of action against that person would be barred by any
applicable statute of limitations but for the operation of this section, the plaintiff may, within
ninety (90) days of the filing of the first answer or first amended answer alleging that person‟s
fault, either:
(1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ. P. 15 and
cause process to be issued for that person; or
(2) Institute a separate action against that person by filing a summons and complaint. If the
plaintiff elects to proceed under this section by filing a separate action, the complaint so filed
shall not be considered an original complaint initiating the suit or an amended complaint for
purposes of this subsection (a).
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See id. at *6-10. In the course of its analysis, the Supreme Court noted that once non-tax
claims leave the Division of Claims Administration and are transferred to the Claims
Commission, the notice of claim alone is not sufficient to adjudicate the claim. Id. at *8.
The Supreme Court explained that under the Rules of the Claims Commission “the claimant
must also file a complaint that complies with Rules 8 and 10 of the Tennessee Rules of Civil
Procedure.” Id. There is no denying this fact; once a claim has been assigned to a
Commissioner, the claimant must file a complaint compliant with Rules 8 and 10 in the
Claims Commission if such a complaint has not already been filed with the Division of
Claims Administration. See Tenn. Comp. R. & Regs. 0310-01-01-.01(2)(d)(3). Although the
filing of a formal complaint may ultimately be required to adjudicate a claim if the claim has
not been resolved in the Division of Claims Administration, that does not negate the waiver
that is triggered upon the filing of a notice of claim under Tennessee Code Annotated section
9-8-402. As previously addressed, it is the filing of a notice of a claim that evidences a
claimant‟s intent to recover damages against the State.
Although Mr. Sumner cites to Moreno to support his position that waiver never
occurred, he relies most heavily on an unpublished opinion from this Court, Haley v. State,
No. E2012-02484-COA-R3-CV, 2013 WL 5431998 (Tenn. Ct. App. Sept. 25, 2015).
According to Mr. Sumner, under Haley v. State, a claim cannot be considered to have been
commenced in the Tennessee Claims Commission until a formal complaint is filed after the
transfer of the claim to the Commission. Having reviewed Haley v. State, we are of the
opinion that it does not support his position. At the outset, we note that Haley v. State did not
address the waiver provision that is in dispute between Mr. Sumner and Dr. Kutsikovich.
Instead, we were tasked in that case with reconciling the pre-suit notice requirements in
Tennessee Code Annotated section 29-26-121(a) and the requirements imposed by Tennessee
Code Annotated section 9-8-402. On appeal, this Court ultimately held that there was “no
conflict with a plaintiff providing notice in accordance with Tennessee Code Annotated
section 29-26-121 simultaneously to the notice pursuant to Tennessee Code Annotated
section 9-8-402.” Id. at *9. In the process of setting out the background facts of the case, we
quoted certain language from the Claims Commissioner‟s order from which the appeal had
arisen. In reproducing the order, we emphasized some of the language in italics, seemingly
suggesting that we approved of some of the conclusions that the Claims Commissioner had
reached. In pertinent part, the italicized portion stated as follows:
(b) A cause of action brought within (90) days pursuant to subsection (a) shall not be barred by
any statute of limitations. This section shall not extend any applicable statute of repose, nor
shall this section permit the plaintiff to maintain an action against a person when such an
action is barred by an applicable statute of repose.
Tenn. Code Ann. § 20-1-119.
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The State appears to argue that a “complaint” is not the starting point in a
claim filed with the Commission. That is clearly not the case. Later language
found in the Rule makes it clear that in a situation such as found in this case, a
Complaint compliant with Tenn. R. Civ. P. Rules 8 and 10, must be filed after
a claim is transferred to the Commission from the DCA where it was unable to
be resolved. Prior to that there is no claim before the Commission.
Id. at *6 (reproducing portions of the Claims Commissioner‟s order).
Mr. Sumner relies on this language in support of his argument that no waiver was
effectuated under Tennessee Code Annotated section 9-8-307(b). Although he acknowledges
that he engaged in correspondence with the Division of Claims Administration and admits
that he filed the “Amendment to Complaint for Healthcare Liability,” he stresses that he
never filed a formal complaint against the State in the Claims Commission. Indeed,
concerning his filed “Amendment to Complaint for Healthcare Liability,” he argues that the
document “clearly expressed . . . his desire to withdraw th[e] matter from the Claims
Commission docket.” Because under Haley v. State there is purportedly “no claim before the
Commission” until a complaint compliant with Rules 8 and 10 of the Tennessee Rules of
Civil Procedure is filed and asserted against the State, Mr. Sumner maintains that there is no
basis for a waiver.
We disagree. The Rules of the Commission require the filing of a formal complaint in
order for a final adjudication to occur once the claim has been transferred to the Claims
Commission, but the claim itself reaches the jurisdiction of the Commission without such
action. For example, we observe that under Tennessee Code Annotated section 9-8-402(c),
the Division of Claims Administration “shall automatically transfer the claim to the
administrative clerk of the claims commission” if the Division fails to honor or deny the filed
claim within the ninety-day settlement period. Tenn. Code Ann. § 9-8-402 (emphasis added).
Moreover, section 9-8-402(c) provides that claimants may file directly with the Claims
Commission regarding claims that the Division has honored or denied. See id. We observe
that there is no requirement that a formal complaint accompany such a filing. The formal
complaint contemplated by Tenn. Comp. R. & Regs. 0310-01-01-01(2)(d)(3) is only required
after the claim has reached the Claims Commission.
In any event, it is not the litigation of a claim in the Commission itself that is the
trigger for waiver in non-tax cases. As we construe the statute, the initial filing of a notice of
claim in the Division of the Claims Administration is what deprives a claimant of any other
causes of action based on the same acts or omissions. Accordingly, we conclude that Mr.
Sumner‟s emphasis on the necessity of a formal complaint is misplaced. Although there is no
question that a formal complaint must be filed in the Claims Commission if that entity is to
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ultimately adjudicate a claim to finality, the recognition of this proposition does not in any
way affect the waiver that is triggered under Tennessee Code Annotated section 9-8-307(b).
As we have emphasized, the Rules of the Claims Commission specifically provide that
“[c]laims before the Commission are commenced in the manner described [in Tennessee
Code Annotated section 9-8-402].” Tenn. Comp. R. & Regs. 0310-01-01-.01(2) (emphasis
added). In specifying what is required under section 9-8-402 for non-tax claims, the Rules
then go on to state that all actions are commenced by filing a written notice of claim with the
Division of Claims Administration. Id. The notice of claim activates the waiver because at
that point in time, a “[c]laim[] against the state” has been asserted. See Tenn. Code Ann. § 9-
8-307(b). Indeed, once the notice of claim is filed, the State is subjected to a statutory
process under which it may potentially be held liable. Absent that statutory process, it would
retain its sovereign immunity. See Stamps, 1998 WL 57482, at *1 (“Stamps made a claim
against Tennessee under the authority of the only statute creating jurisdiction for any
monetary claims against the state, and that statute specifically provides that making such a
claim constitutes a waiver of any cause of action based on the same act or omission.”).
Under Mr. Sumner‟s proposed interpretation of the statute, a claimant could
theoretically recover damages against the State but nonetheless pursue additional relief
against State officers or employees in a state or federal court based on the same acts or
omissions. A claimant could, for example, accept a settlement for a claim that the Division
of Claims Administration decided to honor, thereby removing the need for an “appeal” to the
Claims Commission and the filing of a formal complaint. Accepting Mr. Sumner‟s
interpretation of the waiver provision as controlling, this claimant would not be barred from
pursuing relief against State employees in other forums based on the same acts or omissions
because a complaint would never be filed in the Claims Commission. This is contrary to the
design of the waiver provision. See Lattimer v. Tenn. Dep’t of Corr., No. M2000-03126-
COA-R3-CV, 2002 WL 598558, at *4 (Tenn. Ct. App. Apr. 17, 2002) (“[T]he waiver
provision . . . is designed to prevent a plaintiff from receiving duplicative or inconsistent
judgments in different tribunals for the same injury.”).
Given our construction of the waiver statute, we conclude that it is of no consequence
that the formal complaint Mr. Sumner filed in the Claims Commission disclaimed any relief
against the State. What remains significant is that he filed a notice of claim seeking relief
against the State under Tennessee Code Annotated section 9-8-402. In a non-tax case such as
this, that is the action that triggers the waiver under Tennessee Code Annotated section 9-8-
307(b).
The information required in a notice of claim is outlined in Tennessee Code
Annotated section 9-8-402(a)(2). According to the statute, the following information is
required:
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The notice shall state the circumstances upon which the claim is based,
including, but not limited to: the state department, board, institution, agency,
commission or other state entity that allegedly caused the injury; the time and
place of the incident from which the claim arises; and the nature of the
claimant‟s injury.
Tenn. Code Ann. § 9-8-402(a)(2). In Mr. Sumner‟s original correspondence with the
Division of Claims Administration on August 3, 2012, he provided, by way of counsel, the
following pertinent information regarding his alleged injuries: (1) he alleged that he had been
injured due to the medical negligence of several physicians, including Dr. Kutsikovich,
during a surgical procedure performed on July 19, 2011; (2) he alleged that the physicians‟
actions had proximately caused his peritoneum and small bowel to perforate; (3) he alleged
that this perforation had caused him to become septic, resulting in multiple organ failure; (4)
he alleged that since the surgery, he had received various medical treatments but still suffered
greatly; and (5) he alleged that the surgery causing his injuries had been performed at the
Regional Medical Center in Memphis. Although the August 3 letter speculated as to whether
Dr. Kutsikovich and other physicians were actually employees of the University of
Tennessee, it was presented as a “Notice of Claim Pursuant to Tennessee Code Annotated
Sections 29-26-121 and 9-8-402.” Indeed, as we have already noted, Mr. Sumner‟s counsel
declared within the letter that he was, “out of an abundance of caution . . . presenting notice
of this claim to you”. Moreover, in concluding the letter, Mr. Sumner‟s counsel stated as
follows: “I anticipate that I will be filing suit against the responsible parties in the Circuit
Court in Memphis but, if it turns out that the negligence of Drs. Szatkowski, Bert and
Kutsikovich are properly to be presented to the Claims Commission, I hereby respectfully
give notice of this claim.”
After he confirmed that Dr. Kutsikovich was, in fact, a State employee, Mr. Sumner‟s
counsel sent subsequent letters to the Division of Claims Administration expressing his
intention to proceed with the claims of negligence that he had asserted. As previously noted,
in a letter dated January 2, 2013, Mr. Sumner‟s counsel stated as follows:
I have been advised . . . that Drs. Bert and Kutsikovich were residents
employed by the State of Tennessee as the time of the incident from which this
litigation arises.
....
I am . . . advising you that I want to proceed with the claims of medical
negligence against the State of Tennessee in this matter.
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As I believe you are aware, in the lawsuit I have filed in the Circuit
Court in Memphis I have made allegations of negligence and intentional
battery against all of the defendants.
Moreover, in another letter dated January 30, 2013, Mr. Sumner‟s counsel stated as follows:
“I do not want there to be any uncertainty as to whether or not I am filing a claim against the
State of Tennessee for medical negligence in this matter. It is my position that I have already
properly done so.”
Because we conclude that Mr. Sumner‟s decision to pursue relief against the State
waived any causes of action he had against Dr. Kutsikovich individually based on the same
acts or omissions, the trial court was without subject matter jurisdiction to entertain the
claims that Mr. Sumner asserted against him. Indeed, Mr. Sumner‟s claim asserted against
the State under the Act and the claims asserted against Dr. Kutsikovich in the present case are
all based on Dr. Kutsikovich‟s treatment of Mr. Sumner in connection with the July 19, 2011
surgical procedure. In reaching our determination regarding waiver, we note that Mr.
Sumner‟s January 2, 2013 letter purported to preserve Mr. Sumner‟s rights to pursue claims
of intentional conduct against Dr. Kutsikovich in another forum. As we interpret the waiver
provision, this attempt to avoid the effect of Tennessee Code Annotated section 9-8-307(b)
was to no avail. Once the waiver is triggered, the claimant waives “any cause of action,
based on the same act or omission, which the claimant has against any state officer or
employee.” Id. § 9-8-307(b). Mr. Sumner is presumed “to know the law and the rules of the
commission[.]” Tuck v. State, No. 03A01-9510-BC-00355, 1996 WL 310012, at *3 (Tenn.
Ct. App. June 11, 1996). Having made the choice to seek recovery on a claim for which the
State had waived immunity, Mr. Sumner elected to waive other avenues of recovery against
Dr. Kutsikovich “based on the same act or omission.” See Tenn. Code Ann. § 9-8-307(b).
Under the waiver provision, the waiver is void “if the commission determines that the
act or omission was not within the scope of the officer‟s or employee‟s office or
employment.” Id. § 9-8-307(b). In this case, no such determination was made. In its order
dismissing Mr. Sumner‟s claim from the Commission, the Claims Commission stated that
this issue should be raised in Mr. Sumner‟s Circuit Court case. There is no indication from
the record that the order of the Claims Commission was ever appealed.6 There being no
determination that Dr. Kutsikovich‟s alleged acts or omissions were outside the scope of his
office or employment, Mr. Sumner‟s waiver remains operative.
6
In fact, the parties‟ briefs appear to concede that no appeal was ever filed. Whereas Dr. Kutsikovich‟s brief
directly states that no appeal was sought from the Commission‟s order, Mr. Sumner‟s reply brief accuses Dr.
Kutsikovich of trying to “back door” an appeal in the present appeal over certain aspects of the Commission‟s
ruling.
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Conclusion
In light of our determination that the trial court lacked subject matter jurisdiction over
Mr. Sumner‟s claims against Dr. Kutsikovich, we hereby affirm its dismissal of Dr.
Kutsikovich as a Defendant in this case, albeit on a different basis. The remaining issues are
pretermitted in light of our holding. The costs of this appeal are assessed against the
Plaintiff/Appellant, Timothy Sumner, and his surety, for which execution may issue if
necessary. This matter is remanded to the trial court for the collection of costs, enforcement
of the judgment, and for such further proceedings as may be necessary and are consistent
with this Opinion.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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