author: RONALD R. HOLLIGER, Presiding Judge.

text:
    STATE of Missouri, Appellant, v. David L. McDONALD, Jr., Respondent.
    No. WD 65123.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Rehearing Denied Oct. 4, 2005.

      David A. Baird, Office of Prosecuting Attorney, Maryville, for Appellant.
    Sydney F. Weybrew, Jr., Maryville, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

The State of Missouri appeals a trial court decision sustaining David McDonald’s motion to suppress evidence. The State argues that a campus police officer was justified under the fresh pursuit doctrine in pursuing and arresting McDonald outside of the officer’s territorial jurisdiction. Finding no abuse of discretion by the motion court, we affirm.

Facts

In the early morning hours of November 13, 2004, David L. McDonald, Jr., was driving through the campus of Northwest Missouri State University (hereinafter Northwest) in Maryville, Missouri, traveling at a speed above the posted speed limit. A Northwest campus police officer, Doug Cummins, observed McDonald’s vehicle and, after activating his vehicle’s emergency lights and siren, began pursuing McDonald through campus. Officer Cummins pursued McDonald off Northwest’s campus where he eventually stopped him beyond the geographic boundaries of Northwest on a Maryville city street. Subsequent to the stop, Officer Cummins cited McDonald for state offenses of driving while intoxicated and failure to comply with a traffic-control device.

McDonald filed a motion to suppress alleging that the arrest was unlawful, in that, Officer Cummins pursued and arrested him outside of Cummins’ territorial jurisdiction. At the suppression hearing, Officer Cummins testified that based upon his training and experience, he determined that the vehicle driven by McDonald was exceeding the posted speed limit of twenty miles per hour. Officer Cummins also testified that the traffic-control device faced northbound towards McDonald, the street was well lit, and the signage was approximately the same height as other speed limit signs located within the City of Mary-ville. Officer Cummins was unable to testify as to who set the campus speed limit or who posted the campus speed limit sign and upon what authority.

After the hearing, the motion court sustained the motion to suppress. This appeal follows.

Standard of Review

Despite that Rule 84.04(e) requires a recitation of the standard of review, neither party has favored us to mention it in their brief. Where a trial court has granted defendant’s motion to suppress, “we review the trial court’s decision on appeal under an abuse of discretion standard,” State v. Pfleiderer, 8 S.W.3d 249, 253 (Mo.App.1999), that is, the decision will be affirmed unless it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Whether evidence existed from which the trial court could have arrived at a contrary conclusion is immaterial. State v. Davalos, 128 S.W.3d 143, 147 (Mo.App.2004); State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App.1999). The trial court may not be reversed if its decision is plausible, even if the reviewing court is convinced that it would have weighed the evidence differently sitting as the trier of fact. Davalos, 128 S.W.3d at 147. The issue of whether the Fourth Amendment and the state constitution have been violated, however, is a matter of law that is reviewed de novo. Id. The facts are viewed in a light favorable to the ruling of the trial court. State v. Costa, 11 S.W.3d 670, 679 (Mo.App.1999).

Discussion

The government bears the burden of establishing that the defendant’s motion to suppress should be overruled once the defendant makes a sufficient assertion of standing to raise a violation of Fourth Amendment Rights. Milliorn, 794 S.W.2d at 184. “By its clear language Section 542.296.6 places ‘the burden of going forward with the evidence and the risk of nonpersuasion’ on the state ‘to show by a preponderance of the evidence that the motion to suppress should be overruled.’ ” Id. It is self evident that, if challenged, the State must allege and provide evidence at the suppression hearing that an actual violation of the law occurred.

The focus of the suppression hearing was whether Officer Cummins had the authority under the fresh pursuit doctrine to pursue and arrest McDonald outside of Cummins’ territorial jurisdiction for alleged traffic violations on the campus. At the hearing, McDonald argued that the State had not produced any evidence that a violation of state, county, or municipal law had occurred within Officer Cummins’ territorial jurisdiction. Thus, McDonald claimed, the State could not demonstrate that the off campus arrest by Officer Cum-mins was legal under the fresh pursuit doctrine.

The State argued in response, that,Officer Cummins was authorized under the fresh pursuit doctrine to follow and arrest McDonald off campus since Cummins observed a speeding violation while on campus. The State alleged that failing to adhere to the speed limit sign on Northwest Missouri State’s campus was a violation of state law pursuant to Section 304.271 and, therefore, Officer Cummins was authorized in following McDonald outside of his territorial jurisdiction. Section 304.271 makes it a state law violation to fail to observe any “official traffic-control device.” The State did not allege to the motion court that any municipal violation had occurred nor did it allege any other justification for the use of fresh pursuit other than the failure to obey a traffic-control device in violation of Section 304.271.

We need not resolve the fresh pursuit issue because the State offered no evidence at the suppression hearing to support the alleged violation of Section 304.271 by McDonald. As mentioned above, an officer cannot justify an extra territorial arrest under the guise of fresh pursuit unless the officer reasonably believes that the individual committed a felony or if the individual has committed a misdemeanor or violated a municipal or county ordinance in the presence of the officer. Section 544.157, RSMo 2000. At the suppression hearing, the State’s only allegation of illegality was that McDonald violated the laws of the State of Missouri, specifically Section 304.271, by failing to adhere to a posted speed limit sign. Section 304.271 creates a presumption that all appropriately placed “official traffic-control devices” are presumed to have been placed by lawful authority and in compliance with the Chapter 304 unless competent evidence shows otherwise. The plain language of the statute is clear in that McDonald could not have violated Section 304.271 in this case unless the campus speed limit sign at issue qualifies as an “official traffic-control device.” McDonald raised this issue at the suppression hearing.

Pursuant to the Section 304.271, an “official traffic control device” must be one “placed in accordance with the provisions of the law.” Section 304.271.1, RSMo, 2000. The State first appears to argue that Section 174.703, which empowers state universities to enact conduct regulations on campus, provides the authority underlying the campus speed limit sign. Contrary to Northwest’s assertion, however, Section 174.703 does not purport to regulate speed and traffic on Northwest’s campus. It merely gives Northwest the authority to promulgate regulations of its own to control campus traffic.

The State additionally argues that Northwest’s traffic and parking policies provide such authority and attempts to introduce such evidence for the first time here on appeal, yet we cannot receive evidence that was not first put before the trial court and made part of the record. Winston v. Dir. of Revenue, 137 S.W.3d 502, 505 (Mo.App.2004). As a result, the record reveals no evidence that the traffic control device was placed pursuant to or authorized by any legal authority.

We cannot assume, nor could the motion court, that a street sign erected on Northwest’s campus was “placed in accordance with the provisions of the law” without some evidence indicating that it was placed pursuant to law. The State would have us read Section 304.271 to presume that the campus speed limit sign was placed pursuant to law as a result of its existence; that the sign is legally placed because it is there. The statute, however, does not create such a logical loophole. It simply creates a presumption of legality and compliance with other requirements of Chapter 304 if some law authorizes the placement of the traffic control device. Having been shown no such evidence that the sign in question qualified as an “official traffic control device,” the motion court was within its discretion in sustaining the motion to suppress. The trial court could have accurately concluded that the State did not properly allege any violation of Section 304.271, and since that was the State’s only purported justification for the use of fresh pursuit by Officer Cummins, we cannot say that the motion court abused its discretion in suppressing the evidence.

The State also offers an alternative theory on how McDonald violated state law thus justifying the use of fresh pursuit by Officer Cummins; it suffers the same fate. The State alleges that the provisions of Section 172.749 apply to Northwest in the same way as to the University of Missouri. Section 172.749 provides, generally, that violating the driving regulations on the campus roadways maintained by the University of Missouri is the same as a violation of a municipal ordinance. Assuming, without deciding, that the provisions of Section 172.749 and other similar statutes don’t apply only to the University of Missouri but also extend to Northwest, the State’s argument still must fail because of the evidentiary deficiency discussed above. Section 172.149 equates a violation of a University of Missouri driving regulation with a municipal ordinance violation. Even if Northwest is covered under this statute, the regulation violated must still be presented to the motion court because the court cannot take judicial notice of such regulations or ordinances. See Manes, 140 S.W.3d at 300; State v. Mullenix, 73 S.W.3d 32, 37 (Mo.App.2002).

Under our standard of review we must affirm the motion court’s decision if it is plausible under any theory and we .cannot re-weigh evidence, especially evidence not introduced to the court below. See Davalos, 128 S.W.3d at 147. Because the State provided no evidence that the speed limit sign was “placed pursuant to the provisions of the law” as required under Section 304.271, and since a violation of Section 304.271 was the only violation alleged by the State, the court’s decision sustaining the motion to suppress was not clearly erroneous. The decision of the motion court is affirmed.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.

      .304.271. Observance of traffic-control devices-presumptions-violation, penalty
      1. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of the law, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in the law.
      2. No provision of the law for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic-control devices are required, such section shall be effective even though no devices are erected or in place.
      3. Whenever official traffic-control devices are placed in position approximately conforming to the requirements of the law, such devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence.
      4. Any official traffic-control device placed pursuant to the provisions of the law and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this chapter, unless the contrary shall be established by competent evidence.
      5. Notwithstanding the provisions of section 304.361, violation of this section is a class C misdemeanor.

      . That the State only alleged a state law violation at the suppression hearing is significant, because neither a trial court nor an appellate court may take judicial notice of a municipal ordinance. City of Clarkton v. Manes, 140 S.W.3d 297, 300 (Mo.App.2004).

      . Attached to the State's brief on appeal is a copy of the "parking and traffic policies” of Northwest Missouri State, however, they were not offered to the motion court nor could it take judicial notice of them.

      . 172.749. Violation of university regulations to have effect of municipal violation—assessment of points, effect of
      Violations of any regulation established under sections 172.743 to 172.750 shall have the same effect as a violation of municipal ordinances adopted pursuant to section 304.120, RSMo, with penalty provisions as provided in section 304.570, RSMo. Points assessed against any person pursuant to section 302.302, RSMo, for a violation of sections 172.743 to 172.750 shall be the same as provided for a violation of a county or municipal ordinance. (Footnote omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas BURKE, Jr., Appellant, v. Dolores C. BURKE, Respondent.
    No. WD 63977.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Rehearing Denied Oct. 4, 2005.
    Robert N. Calbi, Kansas City, MO, for Appellant.
    Marilyn M. Shapiro, Kansas City, MO, for Respondent.
    Before: HOWARD, P.J., and SMART and NEWTON, JJ.
   Order

PER CURIAM.

Thomas Burke (“Husband”) appeals from the judgment dissolving his marriage to Dolores Burke (“Wife”). Husband claims that the trial court erred: (1) in awarding Wife $100,000 as her interest in the marital property, and (2) in ordering him to pay Wife’s attorney’s fees. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Farris AIGAER, Appellant, v. Elizabeth AMBRIZ, Respondent.
    No. WD 64590.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Rehearing Denied Oct. 4, 2005.
    Dana K. Kaiser, Kansas City, MO, for Appellant.
    Susan D. Szczucinski, Overland Park, KS, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

In a dissolution proceeding, Father asserts insufficiency of the evidence to support the trial court’s award of sole legal and physical custody of the couple’s child to Mother. He also seeks a reversal of the judgment requiring his visitation be supervised. Affirmed. Rule 84.16(b).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    HAULERS INSURANCE COMPANY, INC., Plaintiff-Respondent, v. Rodger P. WYATT, Sr. and Jerry Wyatt, d/b/a Wyatt’s Auto Sales, Rodger P. Wyatt, Jr., and Christopher Meyer, Defendants, and Rhonda Meyer, Defendant-Appellant.
    No. 25868.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 2, 2005.

      Rich A. Courtney, St. Louis, for appellant.
    Jeffrey P. Hine, Kimberly S. Price, Os-burn, Hiñe, Kuntze, Yates & Murphy, LLC, Cape Girardeau, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Haulers Insurance Company (“Haulers”) filed a declaratory judgment suit against Rhonda Meyer (“Appellant”) and others to determine the applicable liability limits under an “Amended Garage Coverage Form” insurance policy (“the policy”) issued by it. On this appeal, Appellant contests the entry of a summary judgment in favor of Haulers. We affirm.

This case involves the issue of the amount of insurance coverage for injuries sustained in an automobile accident involving Appellant, Christopher Meyer (“Mr. Meyer”), and Rodger Wyatt, Jr. (“Wyatt”). Wyatt was driving a vehicle owned by Wyatt’s Auto Sales when it collided with a motorcycle operated by Mr. Meyer and on which Appellant was a passenger, causing injuries to both of them. Appellant filed a personal injury suit against Wyatt, individually, and Jerry Wyatt and Rodger P. Wyatt, Sr., d/b/a Wyatt’s Auto Sales (“Wyatt’s Auto Sales”). Haulers had issued the policy to Wyatt’s Auto Sales which included automobile liability insurance coverage on the vehicle driven by Wyatt.

The policy contains the following on the Amended Garage Coverage Form Declarations page:

ITEM TWO
SCHEDULE OF COVERAGES AND
COVERED AUTOS
This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those “autos” shown as covered “autos”. “Autos” are shown as covered “autos” for a particular coverage by the entry of one or more of the symbols from the COVERED AUTO Section of the Garage Coverage Form next to the name of the coverage. Entry of a symbol next to the LIABILITY provides coverage for “garage operations.”

Under the Covered Autos section of the policy, the number “22” is the symbol for “Owned ‘Autos’ Only” and the number “27” is the symbol for “Specifically Described ‘Autos.’ ” The fact that the vehicle driven by Wyatt at the time of the collision in question was a “covered — auto” is not disputed.

The policy described liability for “ ‘Garage Operations’ — Covered ‘Autos’ ” as:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”
... Out’ duty to defend or settle ends when the Liability Coverage Limit of Insurance — “Garage Operations” — Covered “Autos” has been exhausted by payment of judgments or settlements.

The policy also contains provisions concerning the limits of the insurance coverages. A section under “Limit of Insurance” is titled “ ‘Garage Operations’— Covered ‘Autos’ ” and provides:

For “accidents” resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”, the following applies:
Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for the total of all damages and “covered pollution cost or expense” combined, resulting from any one “accident” involving a covered “auto” is the Each “Accident” Limit of Insurance — “Garage Operations” — Covered “Autos” for Liability Coverage shown in the Declarations.
Damages and “covered pollution cost or expense” payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Covered “Autos” are not payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Other Than Covered “Autos”.

The policy contains the following definitions:

A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage”.
C. “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.

Haulers filed a declaratory judgment suit against Wyatt and Wyatt’s Auto Sales as well as Appellant and Mr. Meyer, seeking a determination that its policy provided a single limit of $500,000 for the accident in question to satisfy both Appellant’s and Mr. Meyer’s claims. In her answer to the suit, Appellant contended that there was $1,500,000 in coverage under the policy. Both Haulers and Appellant filed motions for summary judgment. Appellant’s motion, however, was premised on there being $500,000 coverage for her claims and another $500,000 for the claims of Mr. Meyer. The trial court entered summary judgment in favor of Haulers and declared that there was a total of $500,000 coverage under the policy for the claims of both Appellant and Mr. Meyer.

In entering judgment, the trial court held that the policy language in question was unambiguous and that:

The language of the declarations page can only mean [Haulers] is liable for a maximum total of $500,000 for an accident involving an auto owned by the insured. The language of the insurance policy does not support [Appellant’s] argument that the injury to [her] was one accident and the injury to [Mr. Meyer] was a separate “accident.” The policy states:
All “bodily injury,” “property damage,” and “covered pollution cost or expense” resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one “accident.”

This appeal followed.

Our review of a motion for summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper when there is no genuine issue of material facts, and the moving party is entitled to a judgment as a matter of law. First Nat. Bank of Annapolis, N.A. v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 142 (Mo.App. S.D.1995). “The propriety of summary judgment is purely an issue of law.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. “[A]n appellate court need not defer to the trial court’s order granting summary judgment.” Id. “When considering appeals from summary judgments, the [appellate court] will review the record in the light most favorable to the party against whom judgment was entered.” Id.

Appellant presents one point on appeal. She claims that the trial court erred in granting the motion for summary judgment filed by Haulers, and in denying her motion for summary judgment, because the policy provides coverage in the amount of $500,000 per person injured in an accident. In support, she contends that the policy language defines an accident as bodily injury to “a person.” In the alternative, she contends that to the extent there is any ambiguity in the definition of “accident,” the policy is to be construed in favor of the insured. Essentially, Appellant argues that the definition of “accident” can be interpreted to mean that both she and Mr. Meyer suffered different accidents because each “suffered exposure to different conditions as widely varying physical forces were applied to each of their persons as they were flung in different directions from the motorcycle.” She concludes that “there were two accidents, the accident of [Appellant] and the accident of [Mr. Meyer].” In further support of this contention, Appellant points to the fact that the definition of “bodily injury” states that it is bodily injury sustained by “a” person. Consequently, she argues that the “clear interpretation is that each person’s ‘bodily injury’ is a separate item.”

Haulers contends that the policy language is unambiguous and provides only $500,000 coverage regardless of the claims made and damages resulting from any one accident. It argues that the insured event in this case was the one collision that occurred, not the separate injuries sustained by Appellant and Mr. Meyer. In support, Haulers cites Kansas Fire and Cas. Co. v. Koelling, 729 S.W.2d 251 (Mo.App. E.D.1987), in which the issue was whether, for the purpose of determining the amount of coverage under a liability policy, two separate accidents occurred when the insured driver collided with an oncoming vehicle as well as one he was trying to pass at the time. Id. at 252. The insurer contended that its obligation was satisfied by paying its maximum liability for one accident. Id. In determining the case, the appellate court considered the “cause” approach and the “effect” approach. Id. It explained that under the “cause” approach, an insured’s single act is considered the accident from which all claims flow, while under the “effect” approach, each claim arising out of an insured’s act is considered a separate accident. Id. It held that the “cause” approach rather than the “effect” approach applied and that only one accident was involved. Id. at 252-58.

With reference to Appellant’s contention that the definition of “bodily injury” mandates an interpretation that each person’s injuries are a separate accident, Haulers cites Scottsdale Ins. Co. v. Robertson, 338 Ill.App.3d 397, 272 Ill.Dec. 975, 788 N.E.2d 279 (Ill.App.2003). In Robertson, two people were injured and two others killed by carbon monoxide poisoning. Id. at 280. The issue was the amount of coverage available under an insurance policy issued by the insurer. Id. The policy defined bodily injury in exactly the same manner as the policy in the instant case. Id. at 281. The policy also defined “occurrence” in the same manner as the present policy defines “accident.” Id. at 281-82. In Robertson, the injured parties argued that since the definition of “bodily injury” made reference to “a person,” each person’s injury constituted a separate occurrence for purposes of the policy, and hence a separate limit. Id. at 282. The appellate court rejected that argument, finding that the use of “a person” was a qualitative, not a quantitative, reference to insure that the policy applied only to human bodily injury. Id. at 285. The court also found that if every instance of bodily injury constituted a separate occurrence under the policy, then the language in the policy limiting the amount of coverage for any one occurrence would be mere surplusage. Id.

Haulers argues that Appellant’s interpretation of the policy would have the effect of changing its liability limits from a single limit policy (per accident) to a split limit policy (per person/per accident). Accordingly, Haulers argues that by allowing $500,000 of coverage per person injured in a single incident with a covered auto, if fifty people were injured in one accident, there would be $500,000 coverage for each of the fifty people. It contends that this is not what it or the insured intended when they entered into a single limit coverage insurance policy.

Whether an insurance policy is ambiguous is a question of law. Martin v. U.S. Fidelity and Guaranty Co., 996 S.W.2d 506, 508 (Mo. banc 1999). When interpreting an insurance policy, “we give the language its plain meaning, which is the meaning that would ordinarily be understood by a layperson who bought the policy.” Tapley v. Shelter Ins. Co., 91 S.W.3d 755, 757 (Mo.App. S.D.2002). When there is “duplicity, indistinctness or uncertainty in the meaning of the words used in the insurance policy,” there is an ambiguity. Id. Ambiguous provisions of an insurance policy are construed against the insurer. Am. Standard Ins. Co. of Wisconsin v. May, 972 S.W.2d 595, 602 (Mo.App. W.D.1998). However, this court will not distort unambiguous policy language to create an ambiguity. Am. Motorists Ins. Co. v. Moore, 970 S.W.2d 876, 878 (Mo.App. E.D.1998). This court must consider the policy as a whole when interpreting the specific language at issue. Am. Standard Ins. Co. of Wisconsin, 972 S.W.2d at 602. “When construing an insurance policy, courts should interpret the policy language in a manner that is consistent with the reasonable expectations, objectives, and intent of the parties.” Am. Family Mut. Ins. Co. v. Bramlett, 31 S.W.3d 1, 4 (Mo.App. W.D.2000).

We do not find Appellant’s argument persuasive. The policy unambiguously limits liability coverage to $500,000 per accident, regardless of the number of people injured in that accident. The policy language clearly provides, in describing the limits of insurance for accidents involving a covered auto, that “[rjegardless of the number of ... claims made or vehicles involved ... the most we will pay for the total of all damages and ‘covered pollution cost or expense’ combined, resulting from any one ‘accident’ involving a covered ‘auto’ is the Each ‘Accident’ Limit of Insurance — ‘Garage Operations’ — Covered ‘Autos’ for Liability Coverage shown in the Declarations.” Appellant’s contention that a layperson would believe that each person’s injury was a separate “accident” is contrary to the plain meaning of the term “accident.” An automobile collision between two vehicles that produces multiple injuries does not lead to the conclusion that there were multiple accidents, but rather one “accident” that produced injuries arising from that occurrence. This interpretation is in keeping with the “cause” approach approved in Koelling, 729 S.W.2d at 252-253.

Likewise, we find that Appellant’s contention that by using the words “a person” in the definition of “bodily injury,” and then incorporating “bodily injury” into the definition of “accident,” impliedly defines “accident” as what happens to one person rather than to all persons involved in a collision is not well taken. In this regard, we agree with the reasoning of Robertson. We are required to interpret the policy in accordance with the intent of the parties. Bramlett, 31 S.W.3d at 4. If the parties had intended that the policy provide a separate limit of liability for each person injured in an accident, the policy could have, but did not state that. We will not stretch the language of the policy beyond the bounds of reason to create an ambiguity where this is none.

Appellant’s point on appeal is denied. The judgment is affirmed.

PREWITT and RAHMEYER, JJ., concur.

      . Mr. Meyer also filed a separate personal injury suit against Wyatt and Wyatt’s Auto Sales. He was included as a defendant in the declaratory judgment suit filed by Haulers which resulted in a summary judgment in its favor. That summary judgment was appealed by Mr. Meyer and was affirmed by this court in the companion case of Haulers Insurance Co. v. Christopher Meyer, Case No. 25871, 172 S.W.3d 880, 2005 WL 2108089 (Mo.App.2005).


author: FRANK F. DROWOTA III, C. J.,

text:
    STATE of Tennessee v. Emma HAWK, a/k/a Betty Willis.
    Supreme Court of Tennessee, at Knoxville.
    May 4, 2005 Session.
    Aug. 18, 2005.

      Clifton Corker, Johnson City, Tennessee, for the appellant, Emma Hawk a/k/a Betty Willis.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle Chapman Mclntire, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

FRANK F. DROWOTA III, C. J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Relying upon a common law rule, the trial court continued the defendant’s trial on the charge of accessory after the fact to first degree murder until after the trial and conviction of the principal offender. The defendant sought interlocutory review of the trial court’s order, asserting that her Sixth Amendment right to a speedy trial has been violated by application of the common law rule. The Court of Criminal Appeals refused to grant the defendant’s application for an interlocutory appeal, finding no reason to deviate from the general practice of evaluating speedy trial claims on direct appeal. We granted the defendant permission to appeal to consider the folio-wing issues of law: (1) whether the Tennessee Criminal Sentencing Reform Act of 1989, 1989 Tenn. Pub. Acts ch. 591 (“Reform Act”), abrogated the common law rule that a principal must be tried and convicted before an accessory after the fact may be tried; (2) if not, should this Court judicially abrogate the common law rule; and (3) whether a defendant is entitled to interlocutory review of the trial court’s order denying her motion to dismiss the indictment because of an alleged violation of her Sixth Amendment right to a speedy trial. We hold that the common law rule has not been abrogated by the Reform Act, and we decline to judicially abrogate it. We also hold that the defendant is not entitled to seek interlocutory review of the trial court’s order rejecting her alleged Sixth Amendment speedy trial violation. Applying these holdings, we affirm the judgment of the Court of Criminal Appeals insofar as it denied the defendant interlocutory review of her speedy trial claim, and we affirm the judgment of the trial court which continued the defendant’s trial on the charge of accessory after the fact until after the trial of the principal offender. We remand this case to the trial court for further proceedings consistent with this opinion.

I. Factual and Procedural Background

The defendant, Emma Hawk, also known as Betty Willis, (“Hawk” or “defendant”), was charged on March 4, 2003, as an accessory after the fact to first degree murder, two counts of abuse of a corpse, and one count of soliciting another to destroy evidence, all Class E felonies. The defendant’s son, Howard Willis (‘Willis”), has been charged with first degree murder for allegedly killing two teenage acquaintances. The charges against the defendant are based on allegations that she helped her son hide the victims’ bodies in a storage facility and that she instructed another person to destroy an audio tape recording of her son admitting that he had placed the victims’ bodies in the storage facility.

Six months after she was indicted, the defendant filed a motion for a speedy trial. The trial court granted the defendant’s motion and set a trial date for December 15, 2003. One week before the trial was scheduled to begin, the prosecution requested a continuance of the defendant’s case until after the conclusion of Willis’s trial and conviction on the murder charges. Pointing to a common law rule, the prosecution maintained that it could not proceed against the defendant on the charge of accessory after the fact to first degree murder until after Willis, the principal offender, had been tried and convicted of first degree murder. The trial court agreed with the prosecution’s legal argument, granted the requested continuance, and denied the defendant’s request to dismiss the indictment. However, the trial court granted the defendant permission to seek an interlocutory appeal from its order, finding that the issue concerning the timing of the trials of the defendant, an accessory after the fact, and her son, the principal offender, would be moot by the time of final judgment in the defendant’s case. See Tenn. R.App. P. 9. In her application for permission to appeal, the defendant asserted that the Reform Act had abrogated the common law rule that a principal offender must be convicted before a person alleged to be an accessory after the fact may be tried. The defendant alternatively asserted that, even if the common law rule had not been abrogated by the Reform Act, its application had violated her Sixth Amendment right to a speedy trial. The Court of Criminal Appeals denied the defendant’s application for interlocutory appeal, concluding that the defendant had presented “no reason to deviate from the general rule of evaluating the defendant’s speedy trial claim on appeal if she is in fact brought to trial and convicted.” We granted permission to appeal.

II. Standard of Review

This appeal presents the following issues of law: (1) whether the Reform Act abrogated the common law rule that a principal must be convicted before a person alleged to be an accessory after the fact may be tried; (2) if not, should this Court judicially abrogate the common law rule; and (3) whether a defendant is entitled to interlocutory appellate review of a trial court’s order denying a motion to dismiss an indictment based on an alleged violation of the Sixth Amendment right to a speedy trial. We review these issues of law de novo, with no presumption of correctness afforded to the lower courts’ conclusions. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004); Kyle v. Williams, 98 S.W.3d 661, 663-64 (Tenn.2003); Ki v. State, 78 S.W.3d 876, 879 (Tenn.2002).

III. Accessory Liability at Common Law

The common law has traditionally recognized two categories of criminal offenders: principals and accessories. Principal offenders were present at the commission of the criminal act. 4 William Blackstone, Commentaries ⅜34. Accessory offenders were not present at the commission of the offense but provided assistance to the principal offender either before or after a criminal offense had been committed. Id. at *35. This category of offenders was divided into two groups: an accessory before the fact was defined as “one who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime.” Id. at *36. An accessory after the fact was defined as an offender who, “knowing a felony to have been committed, receives, relieves, comforts, or assists the felon.” Id. at *37. The criminal liability of the accessory was linked to that of the principal so that an accessory could not be tried until “after the principal was convicted, or at least [an accessory] must have been tried at the same time with [the principal].” Id. at *40. This rule was designed to prevent the “absurdity” of the accessory being convicted one day and the principal being acquitted the next day. See id. at *323.

In 1843, this Court adopted the common law rule, stating: “It is well settled by the common law that an accessory can not be put upon trial without his own consent, previous to the attainder of his principal, unless they be jointly tried.” Whitehead v. State, 23 Tenn. 278, 281 (1843). “[T]he reason of this rule is very plain. If there is no principal, there can be no accesso-ry_” Id. at 283. This Court acknowledged that the common law rule had “been modified in England by various statutes,” id., but emphasized that “[t]he provisions of none of these statutes are in force in this State; the question as to the propriety of introducing them is for the consideration of another department of the State, the legislature.” Id.

Three years after this Court’s decision in Whitehead, the legislature, in 1846, abrogated the common law rule as to accessories before the fact, but did not alter its application to accessories after the fact. See 1846 Tenn. Pub Acts ch. 73 (providing that an accessory before the fact may be indicted and convicted “whether the principal felon shall or shall not have been previously convicted .... ”), codified at Tenn. Code of 1871 § 4591 (Thompson & Steger) (“An accessory before the fact may be prosecuted and convicted for a substantive felony, whether the principal felon has or has not been previously convicted-”). In 1873, this Court discussed this legislative change as follows:

It is conceded that an accessory after the fact cannot be tried until after the trial and conviction of the principal, unless by his consent. At common law this was so as to the accessory either before or after the fact, but with us this has been changed by statute as to an accessory before the fact, but remains as before as to an accessory after the fact.

State v. Rogers, 65 Tenn. 563, 565 (1873) (emphasis added) (citing Code § 4590).

This Court most recently considered the common law rule in Wilson v. State, 190 Tenn. 592, 230 S.W.2d 1014 (1950). Citing Rogers, we again emphasized that, although the common law rule had been legislatively abrogated as to accessories before the fact, the rule remained applicable under the statute defining the offense of accessory after the fact. Id. at 1016 (stating that the statute “contemplates that in a separate trial of an accessory after the fact without his principal, it must be shown that his principal has been tried and convicted”); see also State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn.Crim.App.1989) (“[I]n order for the state to prevail on a charge of accessory after the fact it must introduce evidence [that] the principal has been tried and convicted of the crime.”) (citing Wilson, 190 Tenn. 592, 230 S.W.2d 1014); Pique v. State, 499 S.W.2d 4, 6 (Tenn.Crim.App.1973) (“If the defendant, Duncan’s principal, was acquitted, then Duncan could not be convicted as an accessory after the fact.”) (citing Wilson, 190 Tenn. 592, 230 S.W.2d 1014).

Whether the common law rule remains applicable to the offense of accessory after the fact is again at issue in this appeal. The defendant acknowledges that Tennessee courts have continued to require conviction of the principal before trying an accessory after the fact. Nonetheless, the defendant maintains that the Reform Act has abrogated the common law rule by abolishing common law offenses and by failing to include the prior conviction requirement in the definition of accessory after the fact. According to the State, the Reform Act has not clearly abrogated the common law rule. Nevertheless, the State urges this Court to judicially abrogate the rale.

In resolving this issue, we apply familiar rales of statutory construction, the most basic of which is that courts must attempt to give effect to the legislative purpose and intent of a statute, as determined by the ordinary meaning of its text, rather than seek to alter or amend it. See, e.g., Mooney v. Sneed, 30 S.W.3d 304, 306-07 (Tenn.2000) (citations omitted). To this end courts must keep in mind that the “legislature is presumed to use each word in a statute deliberately, and that the use of each word conveys some intent and has a specific meaning and purpose.” Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn.2000). “Consequently, where the legislature includes particular language in one section of the statute but omits it in another section of the same act, it is presumed that the legislature acted purposefully in including or excluding that particular subject.” Id.; see also Wilkins v. Kellogg Co., 48 S.W.3d 148, 152 (Tenn.2001).

Applying these rules, we conclude that the Reform Act has not abrogated the common law rale as to the offense of accessory after the fact. Tennessee Code Annotated section 39-11-411 (2003) provides:

(a) A person is an accessory after the fact who, after the commission of a felony, with knowledge or reasonable ground to believe that the offender has committed the felony, and with the intent to hinder the arrest, trial, conviction or punishment of the offender;
(1) Harbors or conceals the offender;
(2) Provides or aids in providing the offender with any means of avoiding arrest, trial, conviction or punishment; or
(3) Warns the offender of impending apprehension or discovery.
(b) This section shall have no application to an attorney providing legal services as required or authorized by law.
(c) Accessory after the fact is a Class E felony.

Although this statute does not mention the common law rule, it defines accessory after the fact similarly to the manner in which the offense was defined by the statute at issue in Wilson — a statute that this Court interpreted as contemplating the common law rule. See 230 S.W.2d at 1016. “The Legislature is presumed to know the state of the law at the time it passes legislation.” State v. Mixon, 983 S.W.2d 661, 669 (Tenn.1999). Moreover, the legislature has directed that the Reform Act “shall be construed according to the fair import of [its] terms, including reference to judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.” Tenn.Code Ann. § 39-11-104 (2003) (emphasis added). By defining accessory after the fact in a manner similar to the statutory definition of the offense at issue in Wilson and by also declaring that the Reform Act is to be construed by reference to judicial decisions and common law interpretations, the legislature has evinced an intent to retain the common law rule as to accessories after the fact.

Further evidence indicating that the General Assembly intended to retain the common law rule as to accessories after the fact is the Reform Act’s explicit abrogation of the rule as to accessories before the fact. Although the Reform Act does not use the term accessory before the fact, offenders that would have been categorized at common law as accessories before the fact are now charged and prosecuted pursuant to a theory of criminal responsibility for the conduct of another. See Tenn.Code Ann. § 39-11-402(2) (2003) and Sentencing Commission Comments. Notably, the legislature has declared that in such prosecutions, “it is no defense that ... [t]he person for whose conduct the defendant is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or different type or class of offense, or is immune from prosecution.” Tenn.Code Ann. § 39-11-407(2) (2003). This statutory provision explicitly abrogates the common law rule as to offenders whom the common law classified as accessories before the fact. Where the General Assembly has expressly abrogated the common law rule as to accessories before the fact, we must presume that its failure to do so as to accessories after the fact is intentional and purposeful. Wilkins, 48 S.W.3d at 152. Indeed, the distinction drawn by the Reform Act is wholly consistent with longstanding Tennessee law. As previously explained, in 1846 the General Assembly abrogated the common law rule as to accessories before the fact but retained it as to accessories after the fact. See Rogers, 65 Tenn. at 565. The Reform Act has simply maintained this well-settled distinction. Therefore, applying the rules of statutory construction, we conclude that the Reform Act did not abrogate the common law rule as to the offense of accessory after the fact.

The State urges this Court to judicially abrogate the common law rule, pointing out that the rule has been legislatively or judicially abrogated by a majority of jurisdictions and arguing that the justification for the rule is no longer applicable because accessory liability is no longer derivative. We decline to do so.

Although this Court has not hesitated to abrogate outmoded common law rules where the legislature has neither expressly nor implicitly indicated an intent to retain the rule, in this case we have considered the relevant statutes and discerned a legislative intent to retain the common law rule as to accessories after the fact. The State may be correct; perhaps the common law rule should be modified. However, as this Court has often recognized, ‘[t]he power to define what shall constitute a criminal offense ... is vested in the legislature.’ ” State v. Farmer, 66 S.W.3d 188, 200 (Tenn.2001) (quoting State v. Burdin, 924 S.W.2d 82, 87 (Tenn.1996) and citing additional cases). We decline therefore to judicially abrogate the common law rule. We conclude that whether the common law rule should be abrogated as to accessories after the fact is a question for the General Assembly. See Whitehead, 23 Tenn. at 283.

We therefore hold that a person charged as an accessory after the fact may not be tried prior to the principal offender being convicted unless the person charged as an accessory after the fact expressly consents to waive the common law rule. Applying this holding, we conclude that the trial court did not err in granting the prosecution’s motion for a continuance in this case. Unless the defendant Hawk expressly consents, her trial on the charge of accessory after the fact must be delayed until after the trial and conviction of her son, Willis, the principal offender. See Rogers, 65 Tenn. at 565 (“[A]n accessory after the fact cannot be tried until after the trial and conviction of the principal, unless by his consent.”) (emphasis added); Whitehead, 23 Tenn. at 281 (“[A]n accessory cannot be put upon trial, without his own consent, previous to the attainder of his principal, unless they be jointly tried.”) (emphasis added). The trial court may not infer consent; should the defendant wish to proceed to trial she must expressly relinquish her right to be tried after the principal offender has been convicted. Whitehead, 23 Tenn. at 282 (stating that “an express relinquishment” of the right would be necessary).

IY. Interlocutory Appeal

The defendant claims that applying the common law rule to delay her trial has violated her Sixth Amendment right to a speedy trial. The defendant asks this Court to either dismiss the charge of accessory after the fact or to sever this charge and direct the prosecution to proceed to trial on the remaining charges. Relying upon United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), the State responds that the defendant is not entitled to interlocutory review of the trial court’s denial of her motion. We agree with the State.

In MacDonald, the defendant was a suspect in the February 17, 1970, murder of his wife and two daughters. 435 U.S. at 851, 98 S.Ct. 1547. However, due to an extensive investigation the defendant was not indicted until January 24, 1975. Id. at 851-52, 98 S.Ct. 1547. Shortly thereafter MacDonald moved to dismiss the indictments, alleging that his Sixth Amendment right to a speedy trial had been violated. Id. The district court denied the defendant’s motion, but the United States Court of Appeals for the Fourth Circuit stayed the defendant’s trial and permitted him to pursue an interlocutory appeal. Id. The Fourth Circuit thereafter concluded that the defendant’s right to a speedy trial had been violated and reversed the district court’s denial of the defendant’s motion to dismiss. Id. at 852-53, 98 S.Ct. 1547.

The United States Supreme Court granted the government’s petition for cer-tiorari and reversed. The Court concluded that an interlocutory appeal is not the appropriate method by which to review a speedy trial claim. Id. at 853, 98 S.Ct. 1547. The Court reiterated that interlocutory appeals are disfavored, particularly in criminal prosecutions, because finality is indispensable to meaningful appellate review. Id. at 853, 857, 98 S.Ct. 1547. The Court stressed that speedy trial claims lack finality because they do not terminate the criminal proceeding in the trial court. Id. at 857, 98 S.Ct. 1547. Furthermore, the Court explained that the resolution of a speedy trial claim necessitates a thorough assessment of the particular facts of each case, and the facts key to this assessment are best developed at trial. Id.

The Court emphasized that to prevail upon a speedy trial claim a defendant must prove prejudice, and one of the key inquiries in determining whether a defendant has been prejudiced by a delay in the prosecution is whether the delay has impaired the defendant’s ability to prove innocence. Id. at 858, 98 S.Ct. 1547. The Court explained that because the essence of a speedy trial claim is that the passage of time has inhibited the defendant’s ability to establish innocence, any estimate pri- or to trial of the degree to which prosecu-torial delay impairs an adequate defense “tends to be speculative.” Id. at 858, 98 S.Ct. 1547. The Court also concluded that even if the degree of prejudice could be accurately assessed prior to trial, a speedy trial claim is not appropriate for interlocutory review because such claims are not sufficiently independent of the outcome of the trial and are thus best evaluated on direct appeal. Id. at 859, 98 S.Ct. 1547. Responding to the argument that requiring a defendant to raise a speedy trial claim on direct appeal exacerbates the alleged violation, the Court stated:

There perhaps is some superficial attraction in the argument that the right to a speedy trial ... must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

Id. at 860-61, 98 S.Ct. 1547 (citation omitted).

Finally, the Court noted that interlocutory review of a speedy trial claim would frustrate the very right the Speedy Trial Clause of the Sixth Amendment seeks to protect — the timeliness of prosecution. Id. at 862, 98 S.Ct. 1547. Many defendants, the Court observed, would be willing to tolerate the pre-trial delay occasioned by interlocutory review in the hope of prevailing on a speedy trial claims. Id. The Court enumerated the problems that would potentially result from permitting interlocutory review of speedy trial claims, stating:

Among other things, delay may prejudice the prosecution’s ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes.
Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause. And some assertions of delay-caused prejudice would become self-fulfilling prophecies during the period necessary for appeal.

Id. (citation omitted).

We agree with the United States Supreme Court’s analysis in MacDonald. Indeed, as the Court of Criminal Appeals recognized in this case, speedy trial claims in Tennessee ordinarily are raised and reviewed on direct appeal following conviction. The considerations supporting MacDonald’s refusal to extend interlocutory review to speedy trial claims are considerations that also appear in Tennessee’s procedural rule governing interlocutory appeals. Rule 9(a) provides:

In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered: (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.

Tenn. R.App. P. 9(a).

Having concluded that the analysis in MacDonald is entirely consistent with the analysis required by Rule 9, we hold that a defendant is not entitled to interlocutory review of a speedy trial claim. The merits of a defendant’s speedy trial claim can be best evaluated if raised on direct appeal following a conviction. Indeed, this case well-illustrates that point. Here, the trial court found that the defendant had demonstrated a great deal of anxiety and concern regarding the pending charges. However, the trial court apparently did not hold an evidentiary hearing, for the record contains no proof to support this finding, nor does the record indicate that the anxiety normally occasioned by criminal charges was somehow exacerbated by the delay in this case. Furthermore, although the trial court noted that the defendant was unable to secure release on bail and was incarcerated from October 17, 2002, until December 8, 2003, the trial court was unable to determine whether this period of time was oppressive in light of the overall time it would take to try the case. Similarly, the trial court was unable to determine whether the defendant’s ability to mount an adequate defense had been impaired or diminished by the delay. Determining whether delay has impaired a defendant’s ability to mount an adequate defense is crucial to the prejudice inquiry, and it is precisely this aspect which interlocutory review cannot well illuminate. Thus, we hold that a defendant is not entitled to interlocutory review of speedy trial claims. Such claims normally must be raised and reviewed on direct appeal following a conviction. We decline therefore to address the merits of the defendant’s speedy trial claim.

Y. Conclusion

As herein explained, we hold that the Reform Act has not abrogated the common law rule that a principal offender must be convicted before a person alleged to be an accessory after the fact may be tried and convicted. Furthermore, we decline to judicially abrogate the common law rule. Unless a person charged as an accessory after the fact expressly consents to be tried before the principal has been convicted, an accessory after the fact must be tried after or jointly with the principal offender. Finally, we hold that a defendant is not entitled to interlocutory review of a trial court’s denial of a motion alleging a Sixth Amendment speedy trial violation. Defendants must raise alleged speedy trial violations on direct appeal following trial and conviction. Applying these holdings, we affirm in part the judgment of the Court of Criminal Appeals and affirm the judgment of the trial court which continued the defendant’s trial on the charge of accessory after the fact until after the trial of the principal offender. We remand this case to the trial court for further proceedings consistent with this opinion. It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.

      . Tenn.Code Ann. § 39-17-312 (abuse of a corpse); § 39-11-411 (accessory after the fact); § 39-12-102 (soliciting another to destroy evidence).

      . This category of offenders was further divided into two subgroups: principals in the first degree and principals in the second degree. A principal in the first degree was defined as "the actor or the absolute perpetrator of the crime,” and a principal in the second degree was defined as an offender who either actively or constructively was "present, aiding and abetting the fact to be done.” 4 Blackstone Commentaries *34.

      . Rogers here erroneously cites section 4590 instead of section 4591of the 1871 Code (Thompson & Steger).

      . The statute under consideration in Rogers provided as follows: "An accessory before the fact may be prosecuted and convicted for a substantive felony, whether the principal felon has or has not been previously convicted....” Tenn. Code of 1932 § 10761 (Williams, Shannon & Harsh), recodifying Tenn.Code of 1871 § 4591 (Thompson & Steger).

      . The statute defining accessory after the fact provided as follows:
      A person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted or convicted, or has committed a felony, is an accessory after the fact.
      Tenn.Code of 1932 § 10764.

      . See, e.g., State v. Rogers, 992 S.W.2d 393 (Tenn.1999) (abrogating the common law year-and-a-day rule).

      . The common law rule does permit an accessory after the fact to be tried jointly with a principal offender.

      . See, e.g., Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Simmons, 54 S.W.3d 755 (Tenn.2001).


author: E. RILEY ANDERSON, J.,

text:
    Raymond BANKS v. UNITED PARCEL SERVICE, INC.
    Supreme Court of Tennessee, at Nashville.
    June 7, 2005 Session.
    Aug. 18, 2005.

      David T. Hooper, Brentwood, Tennessee, for the Appellant, United Parcel Service, Inc.
    Timothy S. Priest, Winchester, Tennessee, for the Appellee, Raymond Banks.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, C.J., not participating.

We granted review in this workers’ compensation case to determine whether the trial court erred in awarding benefits to the injured employee for the period prior to the date the employee notified the employer of his gradually-occurring injury. The Special Workers’ Compensation Appeals Panel held that the trial court correctly determined that the employee had timely notified the employer of his injury, but reversed the trial court’s determination that the injury was compensable prior to the date of notification. After reviewing the record and applicable authority, we affirm in part and reverse in part the decision of the Special Workers’ Compensation Appeals Panel. We hold that the notice was timely, that the employee is entitled to temporary total disability benefits for the period he was off work following his surgery, and that the trial court correctly determined that the employee sustained a 70% vocational disability, affirming the trial court on the separate grounds set forth herein.

Background

The record developed before the trial court contains the following facts.

Plaintiff- Raymond Banks (“Banks”) was employed with defendant United Parcel Service (“UPS”) for thirty years. Banks retired from UPS in March 2002 after the knee injury which is the subject of this claim rendered him unable to meet the physical requirements of his job. Banks had completed high school and one quarter of college and was sixty years old at the time of trial on July 2, 2003.

The majority of Banks’ career, including the period from 1997 to 2001, was spent as a “package car driver,” making deliveries to residences and businesses in Moore County and Lincoln County, Tennessee. Banks testified that the package car driver position required him to make between fifty and sixty deliveries per day and lift between 120 and 200 packages per day, many of which weighed more than fifty pounds. He testified that the job required him to be on his feet “[a]ll the time” and required him to climb steps and occasionally kneel to retrieve packages. From 1993 to 1997, Banks had worked as a “feeder driver,” driving eighteen-wheeler trucks. Both positions require drivers to lift seventy pounds alone and 150 pounds with assistance.

Mr. Banks first noticed stiffness and soreness in his left knee in 1991. He did not think at the time that his knee pain was work-related because there had been no specific knee incident at work. He was initially treated by an orthopedic surgeon, Dr. Robert Russell, with medication and cortisone shots; on December 27, 1991, however, Banks underwent an arthroscopic procedure that revealed a torn medial meniscus and chondromalacia, an early arthritic change in his left knee. Banks continued to have pain in his knee over the next several years.

Orthopedic surgeon Dr. Allen F. Anderson testified by deposition that he first treated Banks for knee problems on September 3, 1993. He next saw Banks on June 11, 1998, when Banks complained that he could not bend his knee, stand, or walk without pain. Dr. Anderson treated Banks with medication, cortisone shots, and braces, but Banks’ knee condition deteriorated over the next two and a half years. Dr. Anderson advised Banks in April 2001 that Banks needed knee replacement surgery. Banks elected to postpone the surgery as long as possible, because he knew that he would not be able to perform the physical requirements of his job after the surgery. Finally, when the pain became “excruciating” to Banks, he scheduled knee replacement surgery with Dr. Anderson for November 5, 2001.

Following surgery, Banks was off work from November 5, 2001, until March 3, 2002, when Dr. Anderson released him to work. Banks was restricted from lifting over fifty pounds as well as from kneeling, crawling, or sitting for more than three hours. Because he could not perform his previous jobs at UPS under the physical restrictions, he took retired status as of March 4, 2002.

Dr. Anderson testified that throughout his treatment of Banks up until the time of surgery, Banks never mentioned that his injury was work-related; Banks likewise testified that he had never discussed with Dr. Anderson whether the injury was work-related and that Dr. Anderson had never opined that it was. Although Banks and his wife testified that Dr. Anderson mentioned that Banks’ work did not help matters, Banks testified that he did not believe he had a workers’ compensation claim because he was not injured in a particular incident on the job.

Wayne Scales, Banks’ supervisor at UPS, testified that he had assumed Banks’ knee injury was work-related, but apparently did not share this assumption with Banks. He testified that a few weeks prior to his surgery, however, Banks told him that one or two years earlier he had been working at home and heard a “pop” in his knee. Scales testified that after this conversation he assumed that Banks’ injury was not work-related, but again did not discuss his conclusion with Banks. Banks testified that he did not recall having such a conversation with Scales. His knee had popped occasionally at work, but rather than associating it with work, Banks attributed it to his arthritis.

Banks testified that prior to his November 2001 surgery, his co-workers suggested that his injury might be work-related and advised him to consult an attorney. Banks testified that he met with his attorney, Timothy Priest, on October 17, 2001. That same day, Priest sent a letter to Dr. Anderson requesting medical records. Dr. Anderson did not respond to Priest’s October 17 letter. Priest sent another letter on May 6, 2002, stating that Banks felt his employment at UPS had aggravated his knee injury. Dr. Anderson responded in writing on May 14 and stated that in his opinion Banks’ employment with UPS aggravated a preexisting condition and that Banks had sustained a 37% impairment to his left leg. Banks testified that after Priest informed him of Dr. Anderson’s opinion letter on May 16, 2002, Banks notified UPS that his injury was work-related on May 22, 2002.

Banks filed a complaint for workers’ compensation benefits in the Circuit Court for Moore County on June 3, 2002. The case was heard on July 2, 2003. The trial court held that Banks’ employment with UPS aggravated his preexisting arthritic condition and caused a progression of the condition. The court held that Banks gave UPS timely notice of his gradually-occurring injury and awarded seventeen weeks of temporary total disability benefits from the date that surgery was performed, November 5, 2001, until Banks was released with restrictions to return to work on March 3, 2002. The trial court adopted Dr. Anderson’s impairment rating and held that Banks was entitled to a permanent partial disability award based on a 70% occupational impairment to his left leg.

UPS appealed to the Special Workers’ Compensation Appeals Panel. The Panel affirmed the trial court’s decision that the notice was timely, but reversed the trial court’s decision that Banks was entitled to seventeen weeks of temporary total disability benefits because the disability leave pre-dated Banks’ notification of UPS. Finally, the Panel affirmed the trial court’s award of permanent partial disability based on a 70% impairment to Banks’ left leg.

We accepted review.

Analysis

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (1999 & Supp.2004); Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn.2002). When the trial court has seen the witnesses and heard the testimony, especially where issues of credibility and the weight of testimony are involved, the appellate court must extend considerable deference to the trial court’s factual findings. Whirlpool, 69 S.W.3d at 167. In reviewing documentary evidence such as depositions, however, we extend no deference to the trial court’s findings. Id. Our standard of review of questions of law is de novo without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

UPS challenges the trial court’s rulings that Banks’ notice to UPS on May 22, 2002, was timely and that Banks is entitled to temporary total disability for the time between his surgery on November 5, 2001, and March 3, 2002, the date he returned to work. Banks challenges as inadequate the trial court’s determination that he sustained a 70% permanent partial impairment. We will consider each argument in turn.

Notice

UPS argues that Banks knew or reasonably should have known at several points that he had a work-related injury prior to Dr. Anderson’s May 14, 2002 letter. Banks counters that because he had a preexisting condition which was gradually aggravated by his work at UPS, he did not know and could not reasonably have known that he had a work-related injury until his attorney informed him of Dr. Anderson’s May 14, 2002 letter. Banks argues that because he notified UPS eight days later, on May 22, 2002, his notice was timely.

An employee who fails to notify his employer within thirty days that he has sustained a work-related injury forfeits the right to workers’ compensation benefits unless the employer has actual notice of the injury or unless the employee’s failure to notify the employer was reasonable. TenmCode Ann. § 50-6-201(a) (1999 & Supp.2004). Tennessee Code Annotated section 50-6-201(a) provides:

(a) Every injured employee or such injured employee’s representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician’s fees or to any compensation which may have accrued under the provisions of the Workers’ Compensation Law from the date of the accident to the giving of such notice ... unless reasonable excuse for failure to give such notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.

In 2001, the legislature amended the statute to address gradually-occurring injuries such as the one sustained by Banks. Effective July 1, 2001, the statute further provides:

(b) In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or such injured employee’s representative shall provide notice to the employer of the injury within thirty (30) days after the employee:
(1) Knows or reasonably should know that such employee has suffered a work-related injury that has resulted in permanent physical impairment; or
(2) Is rendered unable to continue to perform such employee’s normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.

Id. § 50-6-201(b) (Supp.2004). This subsection recognizes that although by definition a gradually-occurring injury occurs over time, some date must be chosen to trigger the notice requirement. Thus, employees are relieved from the notice requirement until they know or reasonably should know that their injury was caused by their work and that the injury has either impaired them permanently or has prevented them from performing normal work activities. Id.

We have recognized in the past that an employee who sustains a gradually-occurring injury may be unsure of the cause of his or her injury, and therefore relieved of the notice requirement, until the diagnosis is confirmed by a physician. See Whirlpool, 69 S.W.3d at 169-70; Pentecost v. Anchor Wire Corp., 695 S.W.2d 183, 186 (Tenn.1985). Additionally, we must be “guided by the longstanding rule that the workers’ compensation statutes are to be liberally construed and that doubt should be resolved in favor of the employee.” Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 148-49 (Tenn.1989) (citing Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 772 (1966), and Tenn.Code Ann. § 50-6-116).

Here, Banks was both prevented from performing his normal work activities and was permanently impaired as of the date of his surgery, November 5, 2001; the issue is when Banks knew or reasonably should have known that his work caused his injury. UPS argues that Banks knew or should have known that his injury was work-related by April 1, 2001, when Dr. Anderson advised him that he would need knee surgery. Alternatively, UPS argues that Banks reasonably should have known that he had a work-related injury when he consulted his attorney at the suggestion of coworkers on October 17, 2001, or when his condition finally prevented him from working on November 5, 2001. Finally, UPS argues that Dr. Anderson’s general statements to Banks that his employment was not helping his condition should have alerted him that he had a work-related injury long before Banks finally notified UPSonMay 22, 2002.

Whether Banks knew or reasonably should have known that he had sustained a work-related injury prior to learning of Dr. Anderson’s unequivocal statement on May 14, 2002, is a question of fact. The record shows that Banks was unsure whether his injury was work-related until his lawyer informed him of Dr. Anderson’s opinion.

Banks testified, for example, that he knew that he had a preexisting condition but did not know that it was compensable until Dr. Anderson’s May 14, 2002 letter. Banks was never advised that his condition was work-related; indeed, he testified that he believed it was not work-related because he had not been injured in any specific incident. Moreover, even though he did not believe that he had a compensable injury, Banks kept his supervisors apprised of his injury and treatment. The evidence does not preponderate against the trial court’s factual finding that Banks did not reasonably know his condition was work-related until May 2002, and that his notice to UPS on May 22, 2002, was timely.

Temporary Total Disability

UPS next argues that the trial court erred in awarding Banks seventeen weeks of temporary total disability for the time he was incapacitated due to his knee surgery, because Banks did not notify UPS that he had a work-related injury until after he had recovered from the surgery, been released with restrictions, and taken retired status. UPS argues that because Tennessee Code Annotated section 50-6-201(a) provides that an employee “shall not be entitled to physician’s fees or to any compensation ... from the date of the accident to the giving of such notice,” Banks may not be compensated for any loss prior to May 22, 2002, the date he notified UPS of his injury. Banks counters that he was entitled to temporary total disability benefits even before giving notice of the injury because the exception for gradually-occurring injuries under Tennessee Code Annotated section 50-6-201(b) makes the provisions of section 50-6-201(a) inapplicable.

The purpose of the notice requirement is to give the employer “the opportunity to make a timely investigation of the facts while still readily accessible, and to enable the employer to provide timely and proper treatment for the injured employee.” Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn.1998) (citing Puckett v. N.A.P. Consumer Elec. Corp., 725 S.W.2d 674, 675 (Tenn.1987)). In other words, the notice provision serves to protect the employer from prejudice and to secure the employer’s right to control the provision of treatment. Where the employee is ignorant of the work-connected nature of his injury, however, the employer’s interest must yield to the remedial purpose of the statute. Cf. Long v. Mid-Tenn. Ford Truck Sales, Inc., 160 S.W.3d 504, 510 (Tenn.2005) (awarding compensation for nursing services where injured employee understood from physician that services were required but did not obtain a written order).

On several occasions this Court has addressed questions of timing in gradually-occurring injury cases. See, e.g., Mahoney v. NationsBank of Tenn., N.A., 158 S.W.3d 340, 345 (Tenn.2005) (determining which of two employers was liable for injury); Bone v. Saturn, Corp., 148 S.W.3d 69, 73-74 (Tenn.2004) (determining date at which compensation rate should be fixed); Lawson v. Lear Seating Corp., 944 S.W.2d 340, 341-42 (Tenn.1997) (determining when statute of limitations begins to run). When construing statutory time limits and requirements in such cases, we have favored a construction that preserves a worker’s right to benefits and have emphasized that the worker must be aware that he has sustained a work-related injury before time limits apply. See Lawson, 944 S.W.2d at 342; Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 70 (1961). This is consistent with the statutory admonition to give the Worker’s Compensation Act “an equitable construction.” Tenn. Code Ann. § 50-6-116 (1999).

For example, in determining when the statute of limitations begins to run, we have used the “last day worked” rule, deeming the last day before the gradually-occurring injury incapacitated the employee from working to be the date of the injury. See, e.g., Lawson, 944 S.W.2d at 342. The purpose of the last-day-worked rule “is to fix a date certain when the employee knows or should know he or she sustained a work-related injury so that workers with gradual injuries will not lose the opportunity to bring claims.... ” Bone, 148 S.W.3d at 73 (citation omitted). By the same token, if an employee has provided the employer actual notice of a gradually-occurring injury, then the last-day-worked rule is inapplicable because “there is no question that the employee knows the work-related nature of his or her injury; thus there is no reason to use another date.” Id. at 73-74.

Similarly, it would be inequitable to bar an employee from receiving disability benefits prior to the “date certain when the employee knows or should know he or she sustained a work-related injury....” Id. at 73. Because we favor a construction of timing provisions that preserves a worker’s right to benefits, we agree with Banks that because subsection (b) excuses an employee from the thirty-day notice requirement until he “knows or reasonably should know” that he has sustained a work-related injury, subsection (a)’s barrier to recovery should not apply. We therefore hold that because Banks was unaware that he had a work-related injury at the time of his surgery on November 5, 2001, his failure to notify UPS on or before that date does not bar him from receiving temporary total disability benefits.

Percentage of Impairment

Banks argues that the trial court’s award of 70% occupational disability to the left leg was inadequate in light of Banks’ age, work experience, and physical condition. After considering Dr. Anderson’s 37% anatomical impairment rating and medical restrictions, as well as Banks’ age, education, and experience, the trial court concluded that Banks was “not totally disabled by any stretch of the imagination” and could do sedentary jobs. The evidence does not preponderate against the trial court’s determination that Banks sustained a 70% impairment.

Conclusion

After reviewing the record and applicable authority, we affirm the decision of the trial court on the separate grounds set forth above. We hold that appellee Raymond Banks timely notified UPS that he had sustained a gradually-occurring work-related injury. We further hold that Banks is entitled to temporary total disability benefits between the date of his surgery and the date he returned to work. Finally, we affirm the trial court’s award of 70% permanent partial disability to Banks’ left leg. Costs are taxed to appellant UPS and its surety, for which execution may issue if necessary.

FRANK F. DROWOTA, III, C.J., not participating.